PART XI – PROVISIONS CONCERNING TRIAL AND PUNISHMENT
200. Commencement of sentence of imprisonment
(1) A sentence of imprisonment or of active service punishment in respect of an offence under Part VI shall run from the beginning of the day on which sentence was originally pronounced by the court-martial, or was originally awarded by the commanding officer or appropriate superior authority, as the case may be, subject to subsection (2).
(2) If, after being convicted or found guilty of an offence, a person is convicted or found guilty of another offence either before sentence is passed under the first conviction or before the expiration of that sentence, any sentence of imprisonment or active service punishment in respect of the subsequent conviction shall be executed after the expiration of the former sentence, unless the sentence is executed concurrently with the former sentence or any part thereof.
201. Duration of sentence of imprisonment
(1) If a person who is serving a sentence of imprisonment in respect of an offence under Part VI becomes unlawfully at large during the currency of the sentence—
(a) in calculating the period for which the person is liable to be imprisoned under the sentence, no account shall be taken of the time beginning with the day on which the person became at large and ending with the day on which the person is taken into service custody or the custody of a civil authority or (not having been taken into such custody) returns to the place of imprisonment before he or she become unlawfully at large;
(b) but the person satisfies the prescribed authority that, during any part of a period contemplated in paragraph (a), the person was in the custody of a civil authority otherwise than on account of an offence committed while unlawfully at large, such part shall not be disregarded in calculating the period for which the person is liable to be imprisoned under the sentence.
(2) For the purposes of subsection (1), “civil authority” means an authority, other than a service authority, of Kenya or of a foreign country (including a police officer), authorised by law to detain persons.
(3) A person who—
(a) is serving a sentence of imprisonment in a civil prison in respect of
an offence under Part VI; and
(b) after being temporarily released under some law, is at large at any
time during the period for which the person is liable to be imprisoned in a civil prison under the sentence,
shall be deemed to be unlawfully at large if the period for which the person was temporarily released has expired or if an order recalling the person has been made under that law.
(4) Without prejudice to subsection (1), if any person who is serving a sentence of imprisonment for an offence under Part VI has been temporarily released on compassionate grounds in the prescribed circumstances, in calculating the period for which the person is liable to be imprisoned under the sentence, no account shall be taken of the time beginning with the day after that on which the person is released and ending with the day on which the person is required to return to custody.
(5) A person who is—
(a) released under subsection (4) for any period; or
(b) otherwise allowed out of service custody, under regulations made under this Act, for any period or subject to any condition,
shall, on failure to return at the expiration of the period or to comply with the condition, be treated for the purposes of subsection (1), as being unlawfully at large .
202. Service of sentence of imprisonment
If a sentence of imprisonment is passed on or awarded to a person for an offence under Part VI, that person’s commanding officer shall cause the person to be sent to a prison and the superintendent or other person in charge of the prison shall receive and imprison the person until the sentence has been served, or the person is otherwise lawfully required to be delivered from the prison.
203. Committal to civil prison
A person who is sentenced to death or imprisonment, and who is committed or transferred to a civil prison, shall be imprisoned and otherwise dealt with in the same manner as a person imprisoned in the same prison under a similar sentence of civil court.
204. Sentence of imprisonment passed outside Kenya
If a person is sentenced by a court-martial held outside Kenya to imprisonment for a term exceeding forty-two days, the person shall be returned to Kenya as soon as practicable after the sentence has been passed.
205. Indemnity for person acting under warrant
An action shall not lie in respect of anything done by any person under a sentence of imprisonment for an offence under Part VI, if the doing thereof would have been lawful but for a defect in any warrant or other instrument made for the purposes of that sentence.
206. Proof of certain facts by documentary evidence
(1) This section applies to evidence in proceedings under this Act, whether before a court-martial, a commanding officer, the appropriate superior authority, a court or otherwise.
(2) A document purporting to be a copy of the attestation paper signed by any person and to be certified to be a true copy by a person stated in the certificate properly to have the custody of the attestation paper shall be evidence of the enlistment of the person attested.
(3) The attestation paper purporting to be signed by a person on enlistment shall be evidence of the person haring given the answers to questions that the person is therein recorded as having given.
(4) A letter, return or other document stating that a person—
(a) was or was not serving at any particular time, or during any particular period, in the Defence Forces or in any particular service of the Defence Forces or part thereof, or was discharged therefrom at or before any particular time;
(b) held or did not hold at any particular time any particular rank or appointment in any particular service of the Defence Forces, or had at or before any particular time been attached, posted or transferred to the Defence Forces or any particular service of the Defence Forces or part thereof, or at any particular time or during any particular period was or was not serving or held or did not hold any rank or appointment in any particular country or place; or
(c) was or was not at any particular time authorized to use or wear any particular decoration, badge, wound stripe or emblem,
shall, if purporting to be issued by the President, the Chief of the Kenya Defence Forces or the Service Commander, or by a person authorized in writing by any of them, be evidence of the matters stated in the document.
(5) A record made in any service book or other prescribed document, being a record made under this Act or otherwise under service duty, and purporting to be signed by the commanding officer or by any person whose duty it was to make the record, shall be evidence of the facts stated therein, and a document purporting to be a copy of any such record (including the signature thereto) and to be certified to be a true copy by a person stated in the certificate properly to have the custody of the service book or other prescribed document shall be evidence of the record.
(6) A document purporting to be issued by order of the President, the Chief of the Kenya Defence Forces or the Service Commander and to contain instructions or orders given or made by the President, the Chief of the Kenya Defence Forces or the Service Commander shall be evidence of the giving of the instructions or making of the orders and of their contents.
(7) A certificate purporting to be signed by the President or the Chief of the Kenya Defence Forces, or by a person authorised in writing by either of them, and stating—
(a) that a decoration of a description specified in or annexed to the certificate is a service decoration; or
(b) that a badge, wound stripe or emblem of a description specified in or annexed to the certificate is one supplied or authorised by the President or the Chief of the Kenya Defence Forces,
shall be evidence of the matters stated in the certificate.
(8) A certificate purporting to be signed by a person’s commanding officer or by an officer purporting to be authorised to give the certificate, and stating the contents of, or of any part of, standing orders or other routine orders of a continuing nature made for—
(a) any formation or unit or body of men and women of the Defence Forces;
(b) any command or other area, garrison or place; or
(c) any aircraft, ship or train,
shall in proceedings against that person be evidence of the matters stated in the certificate.
(9) A certificate purporting to be signed by the Defence Council that any unit is a unit of the Defence Forces shall be conclusive evidence of the facts stated therein.
(10) A certificate purporting to be signed by a person’s commanding officer stating that such person is or is not a member of any unit of the Defence Forces shall, in proceedings against such person, be evidence of the facts stated in such certificate.
207. Proof of outcome of civil trial
(1) If a person who is subject to this Act has been tried by a civil court (whether at the time of the trial the person was subject to this Act or not), a certificate of the court—
(a) that the person has been tried by the court for a particular offence;
(b) as to the result of the trial;
(c) as to what judgment or order was given or made by the court; or
(d) that other specified offences were taken into consideration at the trial,
shall for the purposes of this Act be evidence of the matters so certified.
(2) A document purporting to be a certificate under this section and to be signed by a judge or a magistrate shall, unless the contrary is shown, be taken to be such a certificate.
208. Evidence of proceedings of court-martial
(1) The original proceedings of a court-martial purporting to be signed by the presiding officer of the court shall, on production from proper custody, be admissible in evidence before a court-martial or a civil court.
(2) A document purporting to be a copy of the, record of the proceedings of a court-martial or of any part thereof and to be certified to be a true copy by a person stated in the document properly to have the custody of the record shall be evidence of the record or of that part thereof.
209. Trial of offence after offender ceases to be subject to Act
(1) Subject to section 211, if a person who is subject to this Act has committed, or is reasonably suspected to have committed an offence under Part VI, the person shall, for the purposes of the provisions of this Act relating to arrest, keeping in custody, investigation or charges, trial and punishment by a court-martial and execution of sentences in relation to that offence or suspected offence, be treated, as being still subject to this Act, although that the person may have ceased to be subject to this Act.
(2) If a person—
(a) who is treated, by virtue of subsection (1), as being still subject to this Act and is in service custody; and
(b) while in such custody (whether before or after trial) commits, or is reasonably suspected of having committed, an offence which, if he or she were actually subject to this Act, would be an offence under Part VI,
for the purposes of the provisions under subsection (1) and the provisions of this Act relating to dealing summarily with charges in relation to that offence or suspected offence, that person shall be treated as having been subject to this Act when the offence was committed or is suspected of having been committed and as continuing to be subject to this Act thereafter.
(3) If a person who is treated as being at any time subject to this Act by virtue of either or both of subsections (1) and (2), such treatment shall extend to the person—
(a) if the person holds any rank in the Defence Forces, as to a person having that rank;
(b) in any other case, as to a person having the rank which the person held when last actually subject to this Act.
(4) If, under subsection (3), any provision of this Act, apart from this subsection, would apply to a person in relation to different offences, as to a person having different ranks, it shall apply to the person as to a person having the lower or lowest of those ranks.
210. Limitation of time for trial of offences
(1) A person shall not be tried by a court-martial for an offence under this Act, other than an offence under sections 72, 73, or 74(1)(a), unless the trial is begun within three years after the commission of the offence, subject to subsections (2) and (3).
(2) When calculating a period contemplated in subsection (1), any period during which a person was illegally absent or a prisoner of war shall be disregarded.
(3) In applying subsection (1)—
(a) in the case of an offence under section 133, if any written law
requires that proceedings for the corresponding civil offence shall be brought within a particular time, that time limit shall apply to the trial of the offence under that section instead of three years (the same periods being disregarded); and
(b) subject to any time limit applicable by virtue of paragraph (a), a
person may be tried by a court-martial for a civil offence committed outside Kenya despite the fact that it was committed more than three years before the beginning of the trial, if the Director of Public Prosecutions consents to the trial.
(4) A person shall not be tried by a court-martial for an offence under Part VI, other than an offence under sections 72, 73 or 74(1)(a), unless—
(a) the trial is begun within three months after the person ceases to be subject to this Act; or
(b) the trial is for a civil offence committed outside Kenya and the Director of Public Prosecutions consents to the trial.
(5) If a person who has committed an offence under section 45(1)(a) (otherwise than on active service) has subsequently served as a member of the Defence Forces continuously in an exemplary manner for not less than three years, that person shall not be tried for that offence.
211. Trials by civil courts
(1) Nothing in this Act restricts the offences for which a person may be tried by a civil court, or the jurisdiction of a civil court to try a person subject to this Act for an offence other than an offence under Part VI.
(2) Where a person—
(a) is tried by a civil court for a civil offence; and
(b) has already been sentenced to or awarded punishment for an offence under Part VI consisting of an act or omission that constitutes (whether wholly or in part) the civil offence,
section 63 of the Interpretation and General Provisions Act (Cap. 2) shall not apply but the civil court shall, in sentencing the person, have regard to the punishment imposed in respect of the offence under Part VI.
212. Persons not to be tried under this Act for offences already disposed of
(1) A person who is subject to this Act shall not be liable in respect of an offence to be tried by a court-martial or to have the case dealt with summarily if the person—
(a) has been tried for that offence by a competent civil court or under Part VI, or has had an offence committed by the person taken into consideration by any court or by a court-martial in sentencing the person; or
(b) has been charged with an offence under Part VI, and has had the charge dismissed, or has been found guilty on the charge, by the person’s commanding officer or the appropriate superior authority; or
(c) has had an offence condoned by the person’s commanding officer or the appropriate superior authority, as the case may be.
(2) For the purposes of this section—
(a) a case shall be deemed to have been dealt with summarily by the commanding officer or appropriate superior authority despite the fact that the finding of that officer or authority has been quashed, or the award of that officer or authority quashed or varied, on the review;
(b) an offence shall be deemed to have been condoned by the commanding officer of a person alleged to have committed the offence if, and only if, that officer or any officer authorised in relation to the alleged offence, with knowledge of all relevant circumstances, has informed the person that charges will not be brought against the person in relation to the alleged offence;
(c) a person ordered under section 106(2) to be imprisoned for an offence under that section shall be deemed to have been tried by a court-martial for the offence.
(3) Except as provided for under this section, proceedings for an offence under Part VI (whether before a court-martial or before a commanding officer or appropriate superior authority) shall not be barred on the ground of condonation.
Sentencing - national proceedings
Sentencing - national procedures for national proceedings
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