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26. Restraint order.
27. Notice of order under section 26.
28. Effect of restraint order.
29. Duration of restraint order.
30. Offences in respect of restraint order.
31. Management of property by Official Receiver.
32. Exclusion of property, recognition of claims, and revocation of restraint order.
33. Stay of hearing of application under section 22.
34. Death of person against whom restraint order has been made.
35. Variation of restraint order.
Forfeiture of Property
36. Forfeiture of property.
37. Section 36 not to affect certain liabilities.
38. Provision for maintenance of wife and children.
39. Provision for payment of moneys owed.
40. Claim by person who has committed specified offence.
41. Procedure in respect of forfeiture.
42. Forfeiture order.
43. Effect of forfeiture order.
44. Penalty for contravention of section 43(3).
45. Restoration of forfeited property.
46. Arrangement regarding tracing, realisation, etc., of property in a country outside
Kenya.
47. Arrangement regarding tracing, realisation, etc. of property in Kenya.
48. Procedure.
Money Laundering
49. Repealed.
50. Provisions of Part in addition to and not in derogation of Parts II and III.
PART V – REHABILITATION
51. Interpretation of Part.
52. Rehabilitation Centres.
53. Rehabilitation Fund.
54. Board to manage the Fund.
55. Management of the Fund.
56. Advisory council for rehabilitation of narcotic addicts.
57. Functions of the Council.
58. Committal of persons to Centres.
PART VI – INTERNATIONAL ASSISTANCE IN
DRUG INVESTIGATION AND PROCEEDINGS
59. Request by Kenya to other countries.
60. Evidence, etc. obtained from another country.
61. Transfer to Kenya of a person to assist in an investigation or proceedings.
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62. Requests to Kenya for evidence.
63. Requests to Kenya for search warrants.
64. Requests to Kenya for the enforcement of certain orders.
PART VII – MISCELLANEOUS PROVISIONS
65. Jurisdiction.
66. Offences by body corporate.
67. Analysts.
68. Burden of proof in respect of certain matters.
69. Power to question and request production of documents, etc.
70. Interpretation.
71. Inspection.
72. Power to search persons, vehicles, etc.
73. Power to search premises.
74. Seizure of narcotic drugs, etc.
74A. Procedure upon seizure of narcotic drugs.
75. Keeping of property seized under Act.
76. Search of persons and restrictions thereto.
77. Notice of seizure.
78. Condemnation of seized things.
79. Disposal of seizures.
80. Power to arrest without warrant.
81. Punishment of attempt to commit, etc. offences against this act.
82. Fees.
83. Penalty for contravention of Act in certain cases.
84. Regulations.
85. Penalty for contravention of regulations.
86. Valuation of goods for penalty.
87. Power to amend Schedules.
88. Repeal of Cap. 245.
SCHEDULES
FIRST SCHEDULE –
LIST OF NARCOTIC DRUGS
SECOND SCHEDULE –
LIST OF PSYCHOTROPIC SUBSTANCES
THIRD SCHEDULE –
PROHIBITED PLANTS
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CHAPTER 245
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES
CONTROL ACT
[Date of assent: 8th July, 1994.]
[Date of commencement: 26th August, 1994.]
An Act of Parliament to make provision with respect to the control of
the possession of, and trafficking in, narcotic drugs and psychotropic
substances and cultivation of certain plants; to provide for the forfeiture
of property derived from, or used in, illicit traffic in narcotic drugs and
psychotropic substances and for connected purposes
[Act No. 4 of 1994, L.N. 291/1994, Act No. 2 of 2002, Act
No. 7 of 2007, Act No. 9 of 2009, Act No. 12 of 2012.]
PART I –PRELIMINARY
1. Short title
This Act may be cited as the Narcotic Drugs and Psychotropic Substances
(Control) Act, 1994.
2. Interpretation
(1) In this Act, unless the context otherwise requires—
“addict” means a person addicted to any narcotic drug or psychotropic
substance;
“bank” means a bank, financial institution or mortgage finance company
as defined in section 2 of the Banking Act (Cap. 488) and includes the Central
Bank of Kenya;
“cannabis” means the flowering or fruiting tops of the cannabis plant
(excluding the seeds and leaves when not accompanied by tops) from which
the resin has not been extracted, by whatever name they may be designated;
“cannabis oil” means any liquid containing any quantity however small of
tetrahydro-cannabinol;
“cannabis plant” means any plant of the genus cannabis by whatever
name called and includes any part of that plant;
“cannabis resin” means the separated resin, whether crude or purified,
obtained from cannabis but does not include cannabis oil;
“charge” includes a lien, hypothecation, pledge and other security on
property or created to secure the payment of a debt or performance of an
obligation;
“coca bush” means the plant of any species of the genus erythroxylon from
which cocaine can be extracted;
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“coca leaves” means the leaves of the coca bush from which cocaine can
be extracted either directly or by chemical transformation;
“Commissioner” means the Commissioner of Customs and Excise;
“conveyance” means a conveyance of any description used for the carriage
of persons or goods and includes any aircraft, vehicle or vessel;
“court” means a court of competent jurisdiction;
“cultivate”, in relation to any plant, includes growing the plant, sowing or
scattering the seed produced by the plant or any part thereof, nurturing or
tending the plant or harvesting the flowers, fruits, leaves or seeds or the whole
or any part of the plant;
“dentist” means a person registered as a dentist under the Medical
Practitioners and Dentists Act (Cap 253);
“export” means the taking or conveying, or causing to be taken or
conveyed, out of Kenya;
“illicit traffic”, in relation to narcotic drugs and psychotropic substances,
means—
(a) cultivating any coca bush or gathering any portion of a coca plant;
(b) cultivating the opium poppy or any cannabis plant;
(c) engaging in the conveyance production, manufacture,
possession, sale, purchase, transportation, warehousing,
concealment, use or consumption, importation, exportation or
transshipment of narcotic drugs or psychotropic substances; or
(d) handling or letting out of any premises for the carrying on of any
of the activities referred to in paragraphs (a) to (c),
other than as permitted under this Act or any regulations made, or any
conditions of any licence, issued thereunder and includes—
(i) financing, directly or indirectly, any of those activities;
(ii) abetting or conspiring in the furtherance of, or in support of doing
any of, those activities; and
(iii) harbouring persons engaged in any of those activities;
“international convention” means—
(a) the Single Convention on Narcotic Drugs, 1961 adopted by the
United Nations Conference at New York in March, 1961;
(b) the Protocol, amending the Convention mentioned in paragraph
(a), adopted by the United Nations Conference at Geneva in
March, 1972;
(c) the Convention on Psychotropic Substances, 1971 adopted by the
United Nations Conference at Vienna in February, 1971;
(d) the United Nations Convention Against Illicit Traffic in Narcotic
Drugs and Psychotropic Substances adopted at Vienna on 19th
December, 1988; and
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(b) without lawful and reasonable excuse, is found in any house, room
or place to which persons resort for the purpose of smoking,
inhaling, sniffing or otherwise using any narcotic drug or psychotropic
substance; or
(c) being the owner, occupier or concerned in the management of any
premises, permits the premises to be used for the purpose of—
(i) the preparation of opium for smoking or sale, or the smoking,
inhaling, sniffing or otherwise using any narcotic drug or
psychotropic substance; or
(ii) the manufacture, production, sale or distribution of any narcotic
drug or psychotropic substance in contravention of this Act; or
(d) has in his possession any pipe or other utensil for use in connection
with the smoking, inhaling or sniffing or otherwise using of opium,
cannabis, heroin or cocaine or any utensil used in connection with
the preparation of opium or any other narcotic drug or psychotropic
substance for smoking,
shall be guilty of an offence and liable to a fine of two hundred and fifty thousand
shillings or to imprisonment for a term not exceeding ten years or to both such fine
and imprisonment.
(2) Any person who, knowing or having reason to believe that a parcel,
package, container or other thing contains any narcotic drug or psychotropic
substance, handles the parcel, package, container or other thing, shall, except
where such handling is by a public officer in the course of his official duties or a
registered pharmacist, be guilty of an offence and liable to a fine of one hundred
thousand shillings or to imprisonment for a term not exceeding five years or to both
such fine and imprisonment.
(3) Any person who commits any offence referred to in subsection (2) in relation
to any narcotic drug or psychotropic substance with a view to aiding, abetting or
procuring the trafficking in the narcotic drug or psychotropic substance shall be
liable to the penalty prescribed by section 4.
6. Penalty for cultivation of certain plants
Any person who—
(a) cultivates any prohibited plant; or
(b) being the owner, occupier or concerned in the management of any
premises, permits the premises to be used for the purpose of the
cultivation, gathering or production of any prohibited plant,
shall be guilty of an offence and liable to a fine of two hundred and fifty thousand
shillings or three times the market value of the prohibited plant, whichever is the
greater, or to imprisonment for a term not exceeding twenty years or to both such
fine and imprisonment.
7. Forfeiture of land used for cultivation of prohibited plants
(1) Where a person is convicted of an offence under section 6 with reference
to the cultivation of the prohibited plant on any land, not being Government land,
and that person was at the time of the commission of the offence—
(a) the owner of the land on which the prohibited plant was cultivated; or
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(b) the holder of a lease, licence, permit or any other similar right in the
land and he has carried on the cultivation of the prohibited plant with
the consent, co-operation or assistance of the owner of the land,
then, the court convicting him shall, in addition to the penalty provided for that
offence in section 6, order the land to be forfeited to the Government.
(2) Where a person is convicted of any offence under section 6 with reference
to the cultivation of any prohibited plant on any land, not being Government land,
and—
(a) such person was, at the time of the commission of the offence, the
holder of a lease, licence, permit or any other similar right in the land
on which the prohibited plant was cultivated; and
(b) the cultivation of the prohibited plant was carried on without the
consent, co-operation or assistance of the owner of the land,
then, the court convicting him shall, in addition to the penalty provided for that
offence in section 6, order that the lease, licence, permit or any other right in the
land shall stand terminated forthwith and thereupon all the interest in the land of
the person so convicted shall revert to the owner of the land, who shall, subject
to the other provisions of this Act, be entitled to enforce the order as if it were an
order for possession made in his favour by a tribunal under the Rent Restriction
Act (Cap. 296):
Provided that the person so convicted shall not be entitled either to remove any
prohibited plant from the land or to receive any sum by way of compensation for or
otherwise in relation to the value of any such plant.
(3) Where a person is convicted of an offence under section 6, with reference
to the cultivation of any prohibited plant on any Government land, and such person
is the holder of a lease, licence, permit or any other similar right in the land, then,
subject to subsection (4), the court convicting him shall, in addition to the penalty
provided for that offence in section 6, order the lease, licence, permit or any other
right in the land of the person so convicted shall revert the Government.
(4) Where under this section—
(a) any land, is forfeited to the Government, the holder of any mortgage
or charge on such land, so forfeited shall, where such mortgage or
charge was created bona fide and for valuable consideration, be
entitled, notwithstanding such forfeiture, to enforce the mortgage or
charge against the land so forfeited; or
(b) any lease is forfeited to the Government or stands terminated, the
holder of any mortgage or charge on the leasehold right shall,
where such mortgage or charge was created bona fide and for
valuable consideration be entitled, notwithstanding such forfeiture or
termination, to enforce the mortgage or charge against the land to the
extent of the value of the leasehold right on the date of the creation
of the mortgage or charge:
Provided that this subsection shall not apply in the case of the holder of any
mortgage or charge where he was concerned in, or was privy to, the commission
of the offence of which the person referred to in section 6 was convicted and as a
result of which conviction the land is forfeited to the Government or, as the case
may be, the lease is forfeited to the Government or stands terminated.
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(b) sign any prescription or order for the supply of any narcotic drug or
psychotropic substance,
otherwise than in accordance with the provisions of the regulations made under
section 84.
(3) Any person who contravenes subsection (1) or (2) shall be guilty of an
offence and liable to a fine of not less than two hundred and fifty thousand shillings
or to imprisonment for a term not exceeding ten years or to both such fine and
imprisonment.
14. Penalty for receiving additional narcotic drug or psychotropic substance
or prescription without disclosure of earlier receipt
Any person who, in the course of treatment for any physical, dental or mental
disorder is supplied with any narcotic drug or psychotropic substance, or a
prescription therefor, by a medical practitioner or dentist treating him and who
without disclosing that fact receives additional narcotic drugs or psychotropic
substances, or a prescription therefor, from any other medical practitioner or
dentist, shall be guilty of an offence and liable to a fine of not less than fifty thousand
shillings and, in addition, to imprisonment for a term not exceeding ten years.
15. Removal of name from register
Where a medical practitioner, dentist or veterinary surgeon is convicted of an
offence under this Act, he shall, notwithstanding anything contained in any other
written law, be liable to have his name removed from the register of those licensed
or registered to practise within Kenya as a medical practitioner, dentist or veterinary
surgeon, as the case may be.
16. Board to issue licences for export, import, manufacture, etc.
(1) The Minister shall establish a Board which shall consist of—
(a) the Attorney-General or his representative;
(b) the Permanent Secretary of the Ministry for the time being
responsible for Provincial Administration and/or Internal Security or
his representative;
(c) the Permanent Secretary of the Ministry for the time being responsible
for Health or his representative;
(d) the Commissioner of Police or his representative;
(e) three other persons appointed by the Minister of whom one shall be
appointed as the chairman.
(2) The Board shall—
(a) issue licences for the importation, exportation, diversion, sale,
manufacture, production or distribution (at stated places) of any
narcotic drug of psychotropic substance;
(b) name ports or places in Kenya where any narcotic drug or
psychotropic substance may be exported or imported;
(c) prescribe the manner in which any narcotic drug or psychotropic
substance is to be packed or marked for export; and
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(d) prescribe the records to be kept by any person in connection with the
export, import, receipt, sale, disposal or distribution of narcotic drugs
or psychotropic substances.
17. Penalty for obstruction, etc.
Any person who—
(a) delays or obstructs any police officer or any person authorized by the
Commissioner of Police, the Director of Medical Services or any other
person in the exercise of any of his functions under this Act; or
(b) wilfully destroys or mutilates or attempts to destroy or mutilate any
books or documents required, or liable to be produced before any
police officer or any person authorised by the Commissioner of Police,
the Director of Medical Services or any other public officer or any other
person or any other authority or a court under any provision of this
Act; or
(c) refuses or fails to produce, or conceals, or attempts to conceal,
any books or documents or stocks of narcotic drugs or psychotropic
substances when their production is demanded by any person in the
exercise of his powers under this Act; or
(d) refuses or fails to comply with any lawful order or direction given
by any public officer in the course of, or in connection with, the
administration of any provision of this Act, not being a non-compliance
referred to in paragraph (c),
shall be guilty of an offence and liable to a fine of not less than one hundred
thousand shillings or to imprisonment for a term not exceeding five years or to both
such fine and imprisonment.
18. Penalty for failure to furnish information or to produce evidence, etc.
Any person who—
(a) fails or refuses to comply with any obligation to give information or to
produce any book, record or other document, thing or other material
to which he is subject under or by virtue of any provision of this Act
or any order made thereunder; or
(b) in purported compliance with any obligation to give information or to
produce any book, record or other document or other material to which
he is subject under or by virtue of any provision of this Act, gives any
information which he knows to be false in a material particular or gives
any information which he does not believe to be true, or produces or
otherwise makes use of any book, record or other document or other
material containing any statement which to his knowledge is false in
a material particular or which he does not believe to be true; or
(c) for the purpose of obtaining, whether for himself or any other person
the grant or renewal of a licence or authority under this Act—
(i) makes any statement or gives any information which he knows
to be false in a material particular or which he does not believe
to be true; or
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the Court may, on the application of the person against whom the restraint order
was made, revoke the restraint order.
33. Stay of hearing of application under section 22
Where an application has been made to the Court under section 22 against any
person on the ground that he has committed a specified offence, the Court may, on
the application either of the Director of Public Prosecutions or of the respondent, or
otherwise, stay the hearing of the application until a final decision has been made
in respect of the complaint or information.
[Act No. 12 of 2012, Sch.]
34. Death of person against whom restraint order has been made
(1) Where a person against whom a restraint order has been made dies within
the period specified in section 31(1)(b) or before the complaint made or information
laid against him in any court in respect of a specified offence is finally decided or
any appeal against any such decision is finally disposed of by the court to which
the appeal is made, any of his legal representatives may apply to the Court within
sixty days of his death for the revocation or variation of the restraint order.
(2) After hearing the Director of Public Prosecutions and considering such
evidence as may be produced by him and after hearing the legal representative
who has made the application under subsection (1) and considering the evidence
proved by him—
(a) where the Court is satisfied that the person against whom the restraint
order was made had committed the specified offence referred to in
the application for the restraint order under section 22, the Court may
make an order in accordance with the provisions of section 42, and the
provisions of sections 36, 37, 38, 39 and 41(3), (4), (5) and (6) shall
mutatis mutandis apply to the proceedings under this subsection; and
(b) in any other case, the Court may revoke the restraint order.
[Act No. 12 of 2012, Sch.]
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(2) On the receipt of an application under subsection (1) and on being satisfied
that the applicant was not concerned in, or privy to, the commission of the offence,
the Court may release from forfeiture and place at the disposal of the Official
Receiver such part of the property of the person in respect of whom a notice has
been published under section 41(2) or (5), as it thinks fit having regard to the
following—
(a) whether the liability was incurred bona fide;
(b) the secured debts of the person;
(c) the revenues that the person owes to the Government or any local
authority; and
(d) the proportion of the total liabilities of the person to his total assets.
40. Claim by person who has committed a specified offence
(1) Any person in respect of whom a notice has been published under section
41(2) or (5) may apply to the Court, within thirty days of the publication of the notice
in a newspaper, for the release from forfeiture of any property belonging to him on
the grounds that he acquired it—
(a) by succession; or
(b) by gift from a relation who was not concerned in, or privy to, the
specified offence of which he was convicted or with reference to which
the application for forfeiture has been made under section 41(4), or
any other offence under this Act; or
(c) with moneys earned by him through lawful means.
(2) Where the Court is satisfied that the property was acquired by the person
applying under subsection (1) in any manner specified in that subsection, the Court
shall, subject to any terms and conditions as may be specified by it, exclude it from
the property forfeited to the Government under section 36.
(3) In this section, “relation” includes, in the case of a man, his wife or reputed
wife and in the case of a woman her husband or reputed husband.
41. Procedure in respect of forfeiture
(1) Where any person has been convicted of a specified offence, and the court
convicting him is a court other than the High Court, the court convicting him shall,
as soon as possible after such conviction make a report to the High Court stating
the particulars of the person so convicted, the offence of which he was convicted
and such other particulars as may be prescribed by regulations.
(2) The High Court, on receiving the report under subsection (1) in respect of
any person, or on convicting any person for a specified offence, shall publish in a
newspaper circulating in Kenya and in the Gazette, a notice stating the fact of such
conviction, the liability for his property to be forfeited and the right of any person
referred to in section 37, 38(1) or 39(1) or by the person in respect of whom the
notice is published to apply, within such time as may be specified therein (which
shall in the case of an application under section 39(1) or 40(1) be consistent with
those provisions), for any relief to which he is entitled under section 37, 38, 39 or 40.
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(3) For the purposes of this Part, the conviction of a person for a specified
offence shall be deemed to be conclusive evidence that he has committed the
specified offence.
(4) Without prejudice to the provisions of subsections (1) and (2), the Director
of Public Prosecutions may apply to the Court to recover any forfeiture imposed
by section 36.
(5) Where any application is made under subsection (4), the Court shall, as
soon as possible after the application is made, publish in a newspaper circulating
in Kenya and in the Gazette a notice stating the fact of the application having been
made and the right of any person referred to in section 37, 38 or 39(1) or by the
person in respect of whom the notice is published to apply, within such time as may
be specified therein (which shall in the case of an application under section 39(1)
or 40(1) be consistent with those provisions), for any relief to which he is entitled
under section 37, 38, 39 or 40.
(6) The Court may examine the person, in respect of whose property the
application is made—
(a) to determine his property with respect to any matter relating to an
application made under section 37, 38, 39 or 40; or
(b) where he has not been convicted of the specified offence referred to
in the application under subsection (4), with his consent, in respect of
the specified offence he is alleged to have committed,
and take and receive such other evidence as it deems necessary to adjudicate on
the matters arising for decision in the proceedings.
[Act No. 12 of 2012, Sch.]
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PART V – REHABILITATION
51. Interpretation of Part
In this Part—
“Centre” means a rehabilitation centre established under section 52;
“Council” means the Advisory Council for the Rehabilitation of Narcotic
Addicts appointed under section 56;
“Fund” means the Rehabilitation Fund established under section 53;
“Minister” means the Minister for the time being responsible for Health.
52. Rehabilitation Centres
The Minister may establish such number of rehabilitation centres as he thinks
fit for the care, treatment and rehabilitation of persons addicted to narcotic drugs
or psychotropic substances.
53. Rehabilitation Fund
(1) The Minister shall establish a special fund to be known as the Rehabilitation
Fund.
(2) The Fund shall consist of—
(a) such sums as may be provided by Parliament;
(b) such portion of the property forfeited to the Government under Part
IV as may be assigned to the Fund by the Minister for the time being
responsible for Finance by order published in the Gazette;
(c) sums or other property received by the Fund by way of fees,
contribution, gift or grant from or by way of testamentary bequest by
any person;
(d) such sums as may be allocated from time to time to the Fund from
loan funds;
(e) moneys earned or arising from any property, investments, mortgages
and debentures acquired by, or vested in, the Fund;
(f) any property, mortgages, debentures, or investments, acquired by, or
vested in, the Fund;
(g) sums borrowed by the Fund for the purposes of meeting any of its
obligations or discharging any of its functions; and
(h) all other sums or other property which may in any manner become
payable to, or vested in, the Fund.
(3) For the purposes of this section “loan funds” means such sums as may
be made available from time to time by the Government by way of loan.
(4) Where by an order under subsection (2)(b) any immovable property is
assigned to the Fund, the Minister shall deal with the property in such manner as he
thinks fit and may sell the property and use the proceeds of sale for the purposes
for which the Fund is established.
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(5) The Fund shall be used for meeting the capital and current expenditure
relating to the Centres.
54. Board to manage the Fund
(1) Subject to this Part, the Fund shall be administered by a Board consisting
of the Permanent Secretary to the Treasury and two other persons appointed by
the Minister responsible for finance in consultation with the Minister, of whom one
shall be appointed as the Chairman.
(2) The Board may, with the approval of the Minister for the time being
responsible for finance, invest or place on a deposit account any of the moneys
of the Fund and any interest earned on moneys so invested or deposited shall be
placed to the credit of the Fund.
55. Management of the Fund
(1) The Board shall—
(a) impose conditions as to the use to be made of any expenditure
authorized by the Board and such conditions may impose any
reasonable prohibitions, restrictions or requirements concerning such
use or expenditure;
(b) cause to be kept proper books of account and other books and records
in relation to the Fund as well as to all the various activities and
undertakings of the Fund;
(c) transmit to the Controller and Auditor-General in respect of each
financial year and within four months after the end of such financial
year, a statement of account relating to the Fund specifying income
to the Fund in such details as the Treasury may from time to time
direct in accordance with section 18 of the Exchequer and Audit Act,
(Cap. 412) including any investment or deposit made under section
54(2) and shall furnish such additional information as may be deemed
sufficient and necessary for the purpose of examination and audit by
the Controller and Auditor-General under section 19 of the Exchequer
and Audit Act (Cap. 412), and every statement of account shall include
details of the balance between the assets and liabilities of the Fund,
and indicate the financial status of the Fund, as at the end of the
financial year concerned.
56. Advisory council for rehabilitation of narcotic addicts
(1) The Minister shall appoint a council to be known as the Advisory Council for
the Rehabilitation of Narcotic Addicts consisting of a chairman and such number of
other persons, not exceeding fifteen, as the Minister thinks fit, from among persons
who are qualified and have had experience of, and shown capacity in, matters
relating to the care, treatment and rehabilitation of persons addicted to narcotic
drugs or psychotropic substances or, in administration or finance.
(2) The terms and conditions of appointment of the chairman and other
members of the Council shall be such as shall be prescribed by the Minister by
regulation.
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(2) A police officer may take one or more copies of any document produced
before him, or to which he is allowed to have access, under this section.
(3) The provisions of subsection (1)—
(a) shall have effect notwithstanding any obligation as to secrecy or other
restriction upon the disclosure of any information imposed by any
written law, other than this Act, or otherwise; and
(b) shall not confer any right to production of, or to have access to, items
subject to legal privilege or excluded material.
(4) Where the documents or other material in respect of which a request to
produce or to be allowed access is made under subsection (1)(b), consists of
information contained in a computer, the request shall have effect as a request to
produce the material in a form in which it can be taken away or, as the case may be,
as a request to give access to the material in a form in which it is visible and legible.
70. Interpretation
(1) Subject to subsection (2), in section 69—
“items subject to legal privilege” means—
(a) communications between an advocate and his client or any person
representing his client, made in connection with the giving of legal
advice to the client;
(b) communications between—
(i) an advocate and his client or any person representing his
client; or
(ii) between an advocate, or his client, or any such
representative, and any other person,
made in connection with or in contemplation of legal proceedings
and for the purposes of such proceedings; or
(c) items enclosed with or referred to in such communications and
made—
(i) in connection with the giving of legal advice; or
(ii) in connection with or in contemplation of legal proceedings
and for the purposes of such proceedings,
when the items are in the possession of a person who is entitled to possession
of them.
(2) Any item held with the intention of furthering a criminal purpose is not an
item subject to legal privilege.
(3) Subject to subsection (4), in section 69—
“excluded material” means—
(a) personal records which a person has acquired or created in the
course of any trade, business, profession or other occupation or
for the purposes of any paid or unpaid office and which he holds
in confidence; or
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(b) human tissue or tissue fluid which has been taken for the purpose
of diagnosis or medical treatment and which a person holds in
confidence; or
(c) journalistic material which a person holds in confidence and which
consists of documents or of records other than documents;
(4) A person holds material other than journalistic material in confidence for the
purposes of this section if he holds it subject—
(a) to an express or implied undertaking to hold it in confidence; or
(b) to a restriction on disclosure or an obligation of secrecy contained
in any written law whether made or enacted before or after the
commencement of this Act.
(5) A person holds journalistic material in confidence for the purposes of this
definition if—
(a) he holds it subject to such an undertaking, restriction or obligation; and
(b) it has been continuously held (by one or more persons) subject to such
an undertaking, restriction or obligation since it was first acquired or
created for the purposes of journalism.
(6) In subsection (3)—
“personal records” means documentary and other records concerning an
individual (whether living or dead) who can be identified from them and relating
to—
(a) his physical or mental health;
(b) spiritual counselling or assistance given or to be given to him; or
(c) counselling or assistance given or to be given to him, for the
purposes of his personal welfare, by any voluntary organization,
or by any individual who—
(i) by reason of his office or occupation has responsibilities for
his personal welfare; or
(ii) by reason of an order of a court has responsibilities for his
supervision;
“journalistic material” means material acquired or created for the
purposes of journalism but only if such material is in the possession of a person
who acquired or created it for such purposes; and a person who receives
material from someone who intends that the recipient shall use it for such
purposes is to be taken to have acquired it for those purposes;
“document” includes, in addition to a document in writing—
(a) any map, plan, graph or drawing;
(b) any photograph;
(c) any disc, tape, sound track or other device in which sounds or
other data (not being visual images) are embodied so as to be
capable (with or without the aid of some other equipment) of being
reproduced therefrom; and
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(d) any film, microfilm, negative, tape or other device in which one or
more visual images are embodied so as to be capable of being
reproduced therefrom.
71. Inspection
Any police officer or any other person authorized in writing by the Commissioner
of Police for the purposes of this section, the Director of Medical Services or any
person authorized by him shall, for the purpose of the execution of this Act, have
power to enter the premises, or other place, of any person lawfully carrying on
business as a producer, manufacturer, seller or distributor of, or otherwise dealing
in, any narcotic drugs or psychotropic substances and to demand the production
of, and to inspect, any books or documents relating to his dealings in any such
narcotic drug or psychotropic substance and to inspect any stocks of any such
narcotic drugs or psychotropic substances and seize and detain any narcotic drug
or psychotropic substance, which in the opinion of such authorized person, is below
standard or unfit for use for medicinal purposes.
72. Power to search person, vehicles, etc.
(1) Any police officer, or any other person authorized in writing by the
Commissioner of Police for the purposes of this section, who has reasonable cause
to suspect that any person is in possession of, or is removing, any narcotic drug or
psychotropic substance in contravention of this Act may—
(a) stop and search that person and any conveyance in which he is and
any package in his possession or under his control;
(b) seize and detain for the purposes of proceedings under this Act any
narcotic drug or psychotropic substance or any other thing (including
any conveyance) which appears to be evidence of the commission of
an offence under this Act, found in the course of the search; and
(c) arrest and detain the person until he can be brought before a
magistrate as soon as is reasonably practicable, and dealt with
according to law.
(2) Any police officer, or any other person authorized in writing by the
Commissioner of Police for the purposes of this section, who has reasonable cause
to suspect that any motor vehicle, aircraft, ship, carriage or other conveyance was,
or is being, made use of in the commission of any offence under this Act may stop
and enter and search the motor vehicle, aircraft, ship, carriage or other conveyance
and may for that purpose break open any door and remove any other impediment
or obstruction to such entry.
(3) A police officer or authorized person referred to in subsection (1) or (2)
may use such assistance and such force as may be reasonable for carrying out
his functions under those subsections.
73. Power to search premises
(1) Where information on oath is laid before a magistrate alleging that there is
reasonable ground for suspecting that—
(a) an offence under this Act has been, or is being or is planned to be,
committed and that evidence of the commission of, or plan to commit
the offence is to be found on any premises or other place; or
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(6) The provisions of this section shall apply to all proceedings commenced on
or after the 7th June, 2002.
[Act No. 2 of 2002, Sch., Act No. 7 of 2007, Sch.]
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82. Fees
(1) The Minister may charge such fees as may be prescribed by regulations
for an application for any licence, certificate or authorization or renewal thereof, or
for the grant of any licence, certificate or authorization or renewal thereof, under
this Act.
(2) Any person or class of persons who is or are undergoing a treatment and
rehabilitation programme at a Rehabilitation Centre established under section 52
or is under the care of any such Centre, otherwise than in consequence of an
order of a court under section 58, may be required to pay such fees as may be
prescribed by regulations by the Minister responsible for health and different fees
may be prescribed for different classes of persons having regard to their income
or property or both.
83. Penalty for contravention of Act in certain cases
Where any person contravenes any provision of this Act and no penalty is
prescribed for such contravention by any other provision of this Act, the person
so contravening shall be liable to a fine of one hundred thousand shillings and, in
addition, to imprisonment for five years.
84. Regulations
(1) The Minister may make regulations generally for carrying out the purposes
of this Act.
(2) Without prejudice to generality of subsection (1), and in particular, the
Minister may by regulations make provision for all or any of the following matters—
(a) prescribing standards for narcotic drugs and psychotropic substances
that a licensee may possess, sell or supply to any person and the
quantity of any narcotic drug or psychotropic substance that a licensee
may have in his possession;
(b) prescribing conditions regarding the sale or supply of narcotic drugs
or psychotropic substances to any person by a licensee, including a
medical practitioner or a dentist or registered pharmacist holding a
licence;
(c) prescribing the persons authorized to buy narcotic drugs or
psychotropic substances and the conditions to which the authorization
shall be subject;
(d) regulating the issue of prescriptions containing narcotic drugs or
psychotropic substances and the dispensing or supplying of narcotic
drugs or psychotropic substances on prescriptions, and for requiring
persons seeking prescriptions for any narcotic drugs or psychotropic
substances to furnish to such authority any such information relating
to those prescriptions as may be specified by regulations;
(e) regulating the prescription, administration, giving, selling or supplying
of any narcotic drugs or psychotropic substances by a veterinary
surgeon under section 13(2);
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Pharmacy and Poisons Act (Cap. 244) or the Food, Drugs and Chemical
Substances Act (Cap. 254), or who cannot, in the opinion of the Minister, properly
be allowed to carry on the business of manufacturing or selling or distributing, as
the case may be, of any such narcotic drug or psychotropic substance.
(4) The Chief Justice may make rules prescribing the practice and procedure
of the High Court or any other court in regard to proceedings for forfeiture and
condemnation by any such court under any provision of this Act, or relating to
proceedings for a restraint order under Part IV, and for matters connected with or
incidental to such proceedings.
(5) The Minister responsible for Health may by regulations make provisions for
all or any of the following matters—
(a) for the administration and management of, and for all matters relating
to, Rehabilitation Centres established under section 52, including the
security and safety of the persons who are committed or admitted into
any such Centres;
(b) the terms and conditions of appointment of the chairman and other
members of the Advisory Council for Rehabilitation of Narcotic
Addicts; and
(c) for any other matter that may be, or is required to be prescribed by
this Act by the Minister responsible for health.
(6) Nothing in any regulations made under this section shall be taken as
authorizing the sale, or the keeping of an open shop for the retailing, dispensing, or
compounding of poisons by any person who is not qualified in that behalf under, or
otherwise than in accordance with, the provisions of the Pharmacy and Poisons Act
(Cap. 244) or to be in derogation of the provisions of that Act prohibiting, restricting
or regulating, the sale of poisons.
85. Penalty for contravention of regulations
(1) Regulations made under section 84 may provide that any person
contravening any provision thereof, other than a provision for which a specific
penalty is provided, shall be liable to a fine not exceeding two hundred and fifty
thousand shillings or imprisonment for a term not exceeding five years or to both
such fine and imprisonment.
(2) Every person guilty of the contravention of any regulation, not being a
regulation made under section 84(4), for which no penalty is expressly provided
shall be liable to a fine of one hundred thousand shillings or to imprisonment for
three years and in the case of a continuing offence to a further penalty of twenty
thousand shillings for each day during which the offence continues.
86. Valuation of goods for penalty
(1) Where in any prosecution under this Act any fine is to be determined by the
market value of any narcotic drug, psychotropic substance or prohibited plant, a
certificate under the hand of the proper officer of the market value of such narcotic
drug or psychotropic substance shall be accepted by the court as prima facie
evidence of the value thereof.
(2) In this section “proper officer” means the officer authorized by the Minister
by notification in the Gazette for the purposes of this section.
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Hydrocodone (dihydrocodeinone)
Hydromorphinol (14-hydroxydihydromorphine)
Hydromorphone (dihydromorphinone)
Hydroxypethidine (4-meta-hydroxyphenyl-l-methylpiperidine-4-carboxylic acid
ethyl ester)
Isomethadone (6-dimethylamino-5-methyl-4, 4-diphenyl-3-hexanone)
Ketobemidone (4-meta-hydroxyphenyl-l-methyl-4-propionylpiperidine)
Levomethorphan* ((–)-3-methoxy-N-methylmorphinan)
Levomoramide ((–)-4-[2-methyl-4-oxo-3, 3-diphenyl-4-(l-pyrrolidinyl)-butyl]-
morpholine)
Levophenancylmorphan ((–)-3-hydroxy-N-phenacylmorphinan)
Levorphanol* ((–)-3-hydroxy-N-methylmorphinan)
Metazocine (2’-hydroxy-2, 5, 9-trimethyl-6, 7-benzomorphan)
Methadone (6-dimethylamino-4, 4-diphenyl-3-heptanone)
Methadone-Intermediate (4-cyano-2-dimethylamino-4, 4-diphenylbutane)
Methyldesorphine (6-methyl-delta-6-deoxymorphine)
Methyldihydromorphine (6-methyldihydromorphine)
3-methylfentanyl (N-(3-methyl-l-phenethyl-4-piperidyl) propionanilide)
3-methylthiofentanyl (N [3-methyl-l-[2-(2-thienyl) ethyl]-4-piperidyl]
propionanilide)
Metopon (5-methyldthydromorphinone)
Moramide-Intermediate (2-methyl-3-morpholino-l,l-diphenylpropane carboxylic
acid)
Morpheridine (1-(2-morpholinoethyl)-4-phenylpiperidine-4-carboxylic acid ethyl
ester)
Morphine
Morphine Methobromide and other pentavalent nitrogen morphine derivatives,
including in particular the morphine-N-oxide derivatives, one of which is Codeine-
N-Oxide
Morphine-N-Oxide
MPPP (l-methyl-4-phenyl-4-piperidinol propionate (ester))
Myrophine (myristylbenzylmorphine)
Nicomorphine (3, 6-dinicotinylmorphine)
Noracymethadol ((±)-alpha-3-acetoxy-6-methylamine-4, 4-diphenylheptane)
Norlevorphanol ((–)-3-hydroxymorphinan)
Normethadone (6-dimethylamino-4, 4-diphenyl-3-hexanone)
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[Section 2.]
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[Section 2.]
PROHIBITED PLANTS
1. Cannabis.
2. Coca bush.
3. Papaver somniferum (opium poppy).
4. Papaver setigerum.
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