THE SEXUAL OFFENCES ACT NO 3 OF 2006, PART 4

Vulnerable witness to be notified of protective measures.

Evidence of surrounding circumstances and impact of sexual offence.

Evidence of character and previous sexual history.

  1. (1) The prosecution shall inform a witness who is to give evidence in criminal proceedings in which a person is charged with the alleged commission of a sexual offence, or if such witness is a child, such child, his or her parent or guardian or a person in loco parentis, of the possibility that he or she may be declared a vulnerable witness in terms of section 31 and of the protective measures listed in paragraphs
  • to (e) of section 31(4) prior to such witness commencing his or her testimony at any stage of the
  • The court shall, prior to hearing evidence given by a witness referred to in subsection (1), enquire from the prosecutor whether the witness has been informed as contemplated in this section and the court shall note the witness’s response on the record of the proceedings, and if the witness indicates that he or she has not been so informed, the court shall ensure that the witness is so
  1. Evidence of the surrounding circumstances and impact of any sexual offence upon a complainant may be adduced in criminal proceedings involving the alleged commission of a sexual offence where such offence is tried in order to prove –
    • whether a sexual offence is likely to have been

committed-

  • towards or in connection with the person concerned;
  • under coercive circumstances referred to in section 43; and
  • for purposes of imposing an appropriate sentence, the extent of the harm suffered by the person
  1. (1) No evidence as to any previous sexual experience or conduct of any person against or in connection with whom any offence of a sexual nature is alleged to have been committed, other than evidence relating to sexual experience or conduct in respect of the offence which is being tried, shall be adduced, and no question regarding such sexual conduct shall be put to such person, the accused or any other witness at the proceedings pending before a court unless the court has, on application by any party to the proceedings, granted leave to adduce such evidence or to put such

(2) Before an application for leave contemplated in subsection

  • is heard, the court shall direct that any person, other than the

complainant, whose presence is not necessary, may not be present at the proceedings.

(3) The court shall, subject to subsection (4), grant the application referred to in subsection (1) if satisfied that such evidence or questioning-

  • relates to a specific instance of sexual activity relevant to

a fact in issue;

  • is likely to rebut evidence previously adduced by the

prosecution;

  • is likely to explain the presence of semen or the source of pregnancy or disease or any injury to the complainant, where it is relevant to a fact in issue;
  • is not substantially outweighed by its potential prejudice to the complainant’s personal dignity and right to privacy; or
  • is fundamental to the accused’s
  1. (1) A court shall upon conviction of a person having committed a sexual offence and if satisfied that the convicted person is dependent on or has the propensity to misuse alcohol, any drug or is suffering from any other disorder, and may benefit from treatment, grant an order for treatment or professional counseling and such an order shall be made in addition to any sentence, including a sentence of imprisonment which is not
  • Notwithstanding the provisions of sub-section (1), a court shall, at any time at the request of a victim of sexual offence or an intermediary, grant an order for the treatment of a victim of sexual offence.
  • Notwithstanding the provisions of sub-section (2), the Minister responsible for health shall prescribe circumstances under which a victim of a sexual offence may at any time access treatment in any public hospital or institution.
  • The expenses incurred for the treatment or professional counseling of any person convicted of an offence under this section or a victim of a sexual offence as the case may be, shall be borne by the
  • All treatment in respect of a treatment order or professional counseling granted under this Act shall be undertaken at a public hospital or institution or any other institution approved or gazetted by the Minister responsible for
  • All medical records relating to treatment pursuant to

subsections (1), (2), (3) and (4) shall be kept and may be used as evidence

Medical treatment orders.

7 of 2007, Sch.

7 of 2007, Sch.

Evidence of medical or forensic nature.

before any court with regard to any offence under this Act.

  1. (1) Notwithstanding the provisions of section 26 of this Act or any other law, where a person is charged with committing an offence under this Act, the court may direct that an appropriate sample or samples be taken from the accused person, at such place and subject to such conditions as the court may direct for the purpose of forensic and other scientific testing, including a DNA test, in order to gather evidence and to ascertain whether or not the accused person committed an
  • The sample or samples taken from an accused person in terms of subsection (1) shall be stored at an appropriate place until finalization of the trial.
  • The court shall, where the accused person is convicted, order that the sample or samples be stored in a databank for dangerous sexual offenders and where the accused person is acquitted, order that the sample or samples be
  • The dangerous sexual offenders databank referred to in subsection (3) shall be kept for such purpose and at such place and shall contain such particulars as may be determined by the
  • Where a court has given directions under subsection (1), any medical practitioner or designated person shall, if so requested in writing by a police officer above the rank of a constable, take an appropriate sample or samples from the accused person
  • An appropriate sample or samples taken in terms of subsection (5)-
  • shall consist of blood, urine or other tissue or substance as may be determined by the medical practitioner or designated person concerned, in such quantity as is reasonably necessary for the purpose of gathering evidence in ascertaining whether or not the accused person committed an offence or not; and
  • in the case a blood or tissue sample, shall be taken from a part of the accused person’s body selected by the medical practitioner or designated person concerned in accordance with accepted medical
  • Without prejudice to any other defence or limitation that may be available under any law, no claim shall lie and no set-off shall operate against –
  • the State;
  • any Minister; or
  • any medical practitioner or designated persons,

in respect of any detention, injury or loss caused by or in connection with the taking of an appropriate sample in terms of subsection (5), unless the taking was unreasonable or done in bad faith or the person who took the sample was culpably ignorant and negligent.

  • Any person who, without reasonable excuse, hinders or obstructs the taking of an appropriate sample in terms of subsection (5) shall be guilty of an offence of obstructing the course of justice and shall on conviction be liable to imprisonment for a term of not less than five years or to a fine of not less fifty thousand shillings or to
  1. (1) Any person who intentionally interferes with a scene of crime or any evidence relating to the commission of an offence under this Act is guilty of an offence and is liable upon conviction to imprisonment for a term of not less than three years or to a fine of one hundred thousand shillings or to

(2) Interference referred to in subsection (1) includes but is not limited to –

  • tampering with a scene of crime;
  • interference or intimidation of witnesses; and
  • any other act or omission that would hinder or obstruct investigations or materially misrepresent any evidence.
  1. Any person who makes false allegations against another person to the effect that the person has committed an offence under this Act is guilty of an offence and shall be liable to punishment equal to that for the offence complained
  2. (1) A court may declare a person who has been convicted of a sexual offence a dangerous sexual offender if such a person has –
  • more than one conviction for a sexual offence;
  • been convicted of a sexual offence which was accompanied by violence or threats of violence; or
  • been convicted of a sexual offence against a
  • Whenever a dangerous sexual offender has been convicted of a sexual offence and sentenced by a court to imprisonment without an option of a fine, the court shall order, as part of the sentence, that when such offender is released after serving part of a term of imprisonment imposed by a court, the prisons department shall ensure that the offender is placed under long-term supervision by an appropriate person for the remainder of the
  • For purposes of subsection (2), long term supervision means

supervision of a rehabilitative nature for a period of not less than five

Keeping scene of crime secure etc.

Offence to make

false allegations.

Supervision of dangerous sexual offenders.

years.

  • A court may not make an order referred to in subsection (2) unless the court has had regard to a report by a probation officer, social worker, or other persons designated by the court for the purposes of this section as such, which report shall contain an exposition of –
  • the suitability of the offender to undergo a long-term supervision order;
  • the possible benefits of the imposition of a long-term

supervision order on the offender;

  • a proposed rehabilitative programme for the offender;
  • information on the family and social background of the

offender;

  • recommendations regarding any conditions to be imposed upon the granting of a long-term supervision order; and
  • any other matter directed by the court.
  • An order referred to in subsection (2) shall specify –
  • that the offender is required to take part in a rehabilitative

programme;

  • the nature of the rehabilitative programme to be attended;
  • the number of hours per month that the offender is required to undergo rehabilitative supervision; and
  • that the offender is required, where applicable, to refrain from using or abusing alcohol or drugs.
  • An order referred to in subsection (2) may specify that the offender is required to –
  • refrain from visiting a specified location;
  • refrain from seeking employment of a specified nature; and
  • subject himself or herself to a specified form of
  • A long-term supervision order made by a court in terms of this section shall be reviewed by that court within three years from the date on which the order was made or within such shorter period as the court may direct upon referral by the Commissioner of Prisons of such an order to that court for
  • Upon making a long-term supervision order in terms of this section, the court shall explain to the victim, including the next of kin of a deceased victim, that they have the right to be present at the review proceedings referred to in subsection (7) and may make representations.
  • A court which has granted a long-term supervision order in terms of this section may, upon evidence that a dangerous sexual offender has failed to comply with the order or with any condition imposed in

connection with such order, direct that such an offender be –

  • ordered to appear before that court or another court of similar or higher jurisdiction at a specified place and on a specified date and time; or
  • arrested and brought before such
  • Upon the appearance of a dangerous sexual offender at a court pursuant to the provisions of subsection (9), the court shall direct the accused person to show cause for failure to comply with a long-term supervision order or with any condition imposed in connection with such order and the court may –
  • confirm the original order and any conditions imposed in

connection with such order;

  • vary or withdraw such order or any conditions imposed;
  • impose an additional condition or conditions; or
  • make any other order as the court deems
  • If a court has directed that a dangerous sexual offender is required to take part in a rehabilitative programme contemplated in this section, the court may order that the offender, upon being found by the court to have adequate means, shall contribute to the costs of such programme to the extent specified by the
  • A person who has been declared a dangerous sexual offender and who does not comply with a supervision order in accordance with this section is guilty of an offence and is liable upon conviction to imprisonment for a term of not less than three years or to a fine of not less than fifty thousand shillings or to
  • A register for convicted sexual offenders shall be maintained by the Registrar of the High Court and any person who has reasonable cause to so examine it may examine the
  1. The decision as to whether the prosecution or investigation by any police officer of a complaint that a sexual offence has been committed should be discontinued shall rest with the Attorney
  2. (1) A person who, while being a citizen of, or permanently residing in Kenya, commits an act outside Kenya which act would constitute a sexual offence had it been committed in Kenya, is guilty of such an offence and is liable to the same penalty prescribed for such offence under this

(2) A person may not be convicted of an offence contemplated in subsection (1) if such a person has been acquitted or convicted in the country where that offence was committed.

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