This Act may be cited as the Privileges and Immunities Act.
In this Act, unless the context otherwise requires—
means any country to which, for the time being, section 95 of the Constitution applies;
means a person, including the head of a consular post, entrusted in that capacity with the exercise of consular functions and any person in the service of the Government of a Commonwealth country performing any such functions;
means any consulate-general, consulate, vice-consulate or consular agency;
has the meaning assigned to it in Article 1 in the First Schedule;
means the Minister for the time being responsible for foreign affairs.
In the Articles set out in the First and Second Schedules—
or “authorities of the receiving State” shall be construed as including a police officer and any person exercising a power of entry to any premises under any written law;
shall be construed as meaning any offence punishable on a first conviction with imprisonment for a term that may extend to five years or with a more severe sentence;
shall be construed as meaning the Ministry of the Minister;
shall be construed as meaning a citizen of Kenya. [L.N. 22/1984, Sch.]
The following provisions of this Part shall, with respect to the matters dealt with therein, have effect in substitution for any previous written law or rule of law.
Subject to section 15, the Articles set out in the First Schedule to this Act (being Articles of the Vienna Convention on Diplomatic Relations signed in 1961) shall have the force of law in Kenya and shall for that purpose be construed in accordance with the following provisions of this section.
For the purposes of Article 32 a waiver by the head of the mission of a State or a person for the time being performing his functions shall be deemed to be a waiver by that State.
Articles 35, 36 and 40 shall be construed as granting any immunity or privilege which they require to be granted.
The references in Articles 37 and 38 to the extent to which immunities and privileges are admitted by the receiving state and to additional immunities and privileges that may be granted by the receiving state shall be construed as referring respectively to the extent to which any immunities or privileges are specified by the Minister by order and to any additional immunities and privileges that may be so specified.
In its application to the immunity granted by paragraphs (2), (3) and (4) of Article 37 of the First Schedule the expression “permanently resident” in Article 38 of that Schedule shall be deemed to extend to an individual other than one who is resident in Kenya solely for the purpose of performing the duties of his office for a mission.
Subject to sections 6(2) and 15, the Articles set out in the Second Schedule (being Articles or parts of Articles of the Vienna Convention on Consular Relations signed in 1963) shall have the force of law in Kenya and shall for the purpose be construed in accordance with the following provisions of this section.
The reference in paragraph 2 of Article 17 to any immunities and privileges accorded by customary international law or by international agreements shall be construed as a reference to immunities and privileges conferred under Part IV of this Act.
The references in Article 44 to matters connected with the exercise of the functions of members of a consular post shall be construed as matters connected with the exercise of consular functions by consular officers or consular employees.
For the purposes of Article 45 and that Article as applied by Article 58, a waiver shall be deemed to have been expressed by a state if it has been expressed by the head, or a person for the time being performing the functions of head, of the diplomatic mission of that State or, if there is no such mission, of the consular post concerned.
Articles 50, 51, 52, 54, 62 and 67 shall be construed as granting an immunity or privilege which they require to be granted.
The reference in Article 57 to the immunities and privileges provided in Chapter II shall be construed as referring to those provided in Section II of that Chapter.
The reference in Article 70 to the rules of international law concerning diplomatic relations shall be construed as a reference to the provisions of Part II of, and Schedule I to, this Act.
The reference in Article 71 to additional immunities and privileges that may be granted by the receiving state or to immunities and privileges so far as these are granted by the receiving state shall be construed as referring to such immunities and privileges as may be specified by the Minister by order.
In its application to the immunity granted by Article 49 of the Second Schedule the expression “permanently resident” in Article 71 of that Schedule shall be deemed to extend to an individual other than one who is resident in Kenya solely for the purpose of performing the duties of his office for a consular post.
Where a agreement made, whether before or after the commencement of this Act, between Kenya and another State provides for according to consular posts and persons connected with them immunities and privileges not accorded to them by the other provisions of this Act, the Minister may, by order, exercise, with respect to the consular posts of that state and persons connected with them, the powers specified in the Third Schedule to so far as may be necessary to give effect to that agreement.
Where an agreement made, whether before or after the commencement of this Act, between Kenya and another state provides for according to consular posts and persons connected with them some but not all of the immunities and privileges accorded to them by the other provisions of this Act, the Minister may, by order, provide for excluding, with respect to consular posts of that state and persons connected with them, any of the immunities and privileges which are not provided for by that agreement.
The Minister may, by order, confer—
on persons in the service of the government of a Commonwealth country holding such offices or class of offices as may be specified in the order, being offices or classes of offices which appear to the Minister to involve the performance of duties substantially corresponding to those which, in the case of a foreign sovereign power, would be performed by a consular officer;
on a person for the time being recognized by the Government of Kenya as the chief representative of any state or province of a Commonwealth country (in this section referred to as a state representative);
on members of the staff of any such person as is mentioned in paragraph (a) or (b),
immunities or privileges which are conferred by or may be conferred under this Part, and any such order may provide for extending, in relation to premises, official archives, communications, documents and personal property of persons on whom immunities and privileges are or may be conferred under this section, and in relation to any fees and charges levied by them, the provisions of Articles 31, 32, 33, 35, 39 and 51 in the Second Schedule.
An order under subsection (1) may exclude from immunities and privileges conferred by it persons who are permanently resident in Kenya, or who are citizens of Kenya or any class of such persons.
Notwithstanding anything in this section—
a person for the time being recognized by the Government of Kenya as the chief representative in Kenya of a Commonwealth country may waive an immunity conferred under this section on a person in the service of the Government of the country which he represents;
a state representative may waive any immunity conferred under this section on himself or on a member of his staff.
Where a person who is a national of a foreign State is named as executor in the will of a deceased person disposing of property in Kenya, or is otherwise a person to whom a grant or representation to the estate in Kenya of a deceased person may be made, then if the Court is satisfied, on the application of a consular officer of the said state, that the national is not resident in Kenya, and if no application for a grant of representation is made by a person duly authorized by power of attorney to act for the national in that behalf, the court shall make to that officer any such grant of representation to the estate of the deceased as would be made to him if he were so authorized: Provided that the Court may, if it thinks fit, postpone the making of such grant during such period as the court considers appropriate having regard to all the circumstances of the case.
Where any person who is a national of a foreign State—
is entitled to payment or delivery of any money or property in respect of an interest in the estate of a deceased person, or vesting in possession on the death of any person, or is entitled to payment of any money becoming due on the death of any person; or
is a person to whom any money or property comprised in the estate of a deceased person may be paid or delivered in pursuance of any written law, whether passed or made before or after the commencement of this Act, authorizing the payment or delivery of such money or property without representation to the estate of the deceased being granted, then, if the said national is not resident in Kenya, a consular officer of that State shall have the like right and power to receive and give a valid discharge for any such money or property in Kenya as if he were duly authorized by power of attorney to act for such national in that behalf:
Provided that no person shall be authorized or required by this subsection to pay or deliver money or property to a consular officer if it is within his knowledge that another person in Kenya has been expressly authorized to receive that money or property on behalf of the said national.
A grant of administration made by virtue of this section may be made to the consular officer concerned by his official title and to his successors in office, and when a grant is so made the office of administrator, and all the estate, rights, duties and liabilities of the administrator (including liabilities under the administration bond), shall be vested in and imposed on the person for the time being holding the office, and no fresh grant shall be required by reason only of the death or vacation of office of the person to whom the grant was made, or in whom it is vested: Provided that nothing in this subsection shall affect any limitation contained in the grant or any power of the court to revoke the grant.
No sureties shall be required to an administration bond given by a consular officer upon the grant to him of administration by virtue of this section.
Notwithstanding any other provision of this Part conferring immunity or privilege in respect of the official acts and documents of consular officers, a consular officer shall not be entitled to immunity or privilege in respect of any act done by virtue of powers conferred on him by or under this section or in respect of any document for the time being in his possession in relation thereto.
This section shall apply to an organization which the Minister may, by order, declare to be an organization of which Kenya, or the Government, and one or more foreign sovereign powers, or the government or governments thereof, are members.
The Minister may, by order—
provide that an organization to which this section applies (hereinafter referred to as the organization) shall, to such extent as may be specified in the order, have the immunities and privileges set out in Part I of the Fourth Schedule to this Act, and shall also have the legal capacities of a body corporate;
confer upon—
any persons who are representatives (whether of governments or not) on any organ of the organization or are members of any committee of the organization or of an organ thereof;
such number of officers of the organization as may be specified in the order, being the holders of such high offices in the organization as may be so specified; and
such persons employed on missions on behalf of the organization as may be so specified,
to such extent as may be specified in the order, the immunities and privileges set out in Part II of the said Fourth Schedule;
confer upon such other classes of officers and servants of the organization as may be specified in the order, to such extent as may be so specified, the immunities and privileges set out in Part III of the Fourth Schedule,
and Part IV of the said Fourth Schedule shall have effect for the purpose of extending to the staffs of such representatives and members as are mentioned in subparagraph (i) of paragraph (b) of this subsection, and to the families of officers of the organization, any immunities and privileges conferred on the representatives, members or officers under that paragraph, except in so far as the operation of Part IV is excluded by the order conferring the immunities and privileges.
An order under subsection (2) of this section shall be so framed as to secure that there are not conferred upon any person immunities or privileges greater in extent than those which, at the time of the making of the order, are required to be conferred on that person in order to give effect to any international agreement in that behalf and that no immunity or privilege is conferred upon any person as the representative of the Government of Kenya or as a member of the staff of such representative.
Where immunities and privileges are conferred upon persons by an order under subsection (2) of this section, the Minister, by notice in the Gazette—
shall specify the persons entitled to immunities and privileges conferred under paragraph (b) of that subsection; and
may specify the persons entitled to immunities and privileges conferred under paragraph (c) of that subsection.
The judges, officials and staff of the International Criminal Court, and any counsel, experts, witnesses and other persons required to be present at the seat of that Court, shall have the privileges and immunities set out in article 48 of the Rome Statute and the agreement on privileges and immunities contemplated in that article. [Act No. 16 of 2008, s. 174.]
Where a conference is held in Kenya and is attended by the representatives of the Government of Kenya and of the government or governments of one or more other States, and it appears to the Minister that doubts may arise as to the extent to which the representatives of such other States and members of their official staffs are entitled to diplomatic immunities and privileges, he may, by notice in the Gazette, specify the persons and the Articles set out in the First Schedule to this Act which shall apply to them, and, for the purposes of those Articles, every representative of a State who is for the time being specified in such a notice shall be deemed to be a head of the mission and such of his official staff as are for the time being included in the notice shall be deemed to be members of the diplomatic staff.
Where the Government of Kenya has, whether before or after the commencement of this Act, entered into any agreement with an external agency under which, in return for assistance or co-operation in works executed in, or services rendered to, Kenya by that agency, the Government has agreed that such agency or persons in its service should enjoy immunities or privileges, the Minister may, by order—
declare that such agency is one to which this section applies;
provide that, to such extent as may be specified in the order, such agency shall have the immunities and privileges set out in Part I of the Fourth Schedule to this Act;
confer upon such classes of officers and servants of such agency as may be specified in the order, to such extent as may be so specified, the immunities and privileges set out in Part III of the Fourth Schedule,
and for the purposes of any such order references in the said Fourth Schedule to the organization shall be construed as references to the external agency named in the order.
An order under subsection (1) of this section shall be so framed as to secure that there not conferred on any person any immunities or privileges greater in extent than those which are required to be conferred on that person by the agreement concerned and that no immunity or privilege is conferred on any person who is a citizen of, or permanently resident in, Kenya.
Where immunities and privileges are conferred upon any person by an order under subsection (1) of this section, the Minister shall, by notice in the Gazette, specify the persons who are for the time being entitled to those immunities and privileges.
For the purposes of this section, “external agency” means—
the government of a foreign State;
a recognized agency of such a government;
an internationally recognized foundation or other body.
In its application to the United Nations Organization, established by Charter at San Francisco on 25th June, 1945, this Part shall have effect subject to the following modifications—
a reference to the governing body or a committee of the organization shall be construed as referring to the General Assembly or any council or other organ of the United Nations Organization; and
the powers conferred upon the Minister by subsection (2) of section 9 of this Act shall include power to confer on the judges and registrars of the International Court set up under the Charter, and on suitors to that Court and their agents, counsel and advocates, such immunities, privileges and facilities as may be required to give effect to any resolution of, or convention approved by, the General Assembly.
Notwithstanding the foregoing provisions of this Part, the Minister may decline to accord immunities and privileges to, or may withdraw immunities and privileges from, nationals or representatives of any State on the ground that the State is failing to accord corresponding immunities and privileges to citizens or representatives of Kenya.
A diplomatic agent or consular officer of any State may, if authorized to do so under the Laws of that State, administer oaths, take affidavits and do notarial acts—
required by a person for use in that State or under the Laws thereof; or
otherwise required by a national of that State but not for use in Kenya except under the Laws of some other country.
If it appears to the Minister that the immunities, privileges or powers accorded to a diplomatic mission or consular post of Kenya in the territory of any State, or to persons connected with that mission or post, are less than those accorded by this Act to the diplomatic mission or consular post of that State, or to the persons connected therewith, the Minister may, by order, withdraw such of the immunities, privileges or powers accorded by this Act from the diplomatic mission or consular post of that State, or from such persons connected therewith, as appears to the Minister to be proper.
If in any proceedings any question arises whether or not a person is entitled to the benefit of an immunity or privilege, or to exercise any power, under this Act, a certificate given by the Minister stating any fact relating to that question shall be conclusive evidence of that fact, and any such certificate purporting to be signed by the Minister shall be presumed to have been signed by him until the contrary is proved.
Any order made under this Act shall, unless a draft thereof has been laid before Parliament and approved by resolution before the making thereof, be laid before Parliament without unreasonable delay, and, if a resolution is passed by Parliament within twenty days on which Parliament next sits after such order is laid before it that the order be annulled, it shall thenceforth be void, but without prejudice to the validity of anything previously done thereunder, or to the making of a new order.
The Diplomatic Privileges Act, 1708, of the United Kingdom is hereby repealed in its application to Kenya.
The following Acts are hereby repealed—
the Administration of Estates by Consular Officers Act (Cap. 164);
the Diplomatic Privileges Extension Act (Cap. 179);
the Immunities and Privileges (Commonwealth Countries and Republic of Ireland) Act (Cap. 180);
the Consular Conventions Act (Cap. 181).
Nothing in this Act shall affect any order made, or list or notice published, under any law repealed by this Act, but any such order, list or notice shall, if in force at the commencement of this Act, continue in force and, so far as it could have been made or published under this Act, have effect as if so made or published.