Fighting Domestic Violence

Kenya

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4. Protection for domestic violence victims and relief granted
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4. Protection for domestic violence victims and relief granted Start Comparison
4.1 Civil protection orders
4.1.1 Are there civil protection orders available to victims of domestic abuse?
Protection orders are available under the Domestic Violence Act. They give the court the power to make a protection order if it is satisfied that the respondent is using or has used domestic violence against the applicant or a child of the applicant's family, or both, and that making the order is necessary for protecting the applicant or a child of the applicant's family, or both.[26]
4.1.2 Who can petition for civil protection orders?

The following people are listed as eligible to apply for a protection order:[27]

  • a person who is in a domestic relationship with another person[28]
  • a representative on behalf of a child,[29] for example, a parent, guardian or other relative, a police or probation officer, or any other person with the leave of the court[30]
  • a representative on behalf of an eligible person who lacks the capacity to apply on their own behalf (and is not a child)[31]

An applicant's representative may make an application with or without the applicant's consent, as long as they have the leave of the court.[32] An applicant's representative includes (but is not limited to) a police officer, social welfare officer, employer of the applicant, guardian of a child, a relative, neighbor or fellow employee of the applicant, a medical practitioner, a nongovernmental organization concerned with the welfare of victims of domestic violence, a religious leader, or any other person or class of persons as may be specified by the law.[33]

4.1.3 Are there temporary custody of a child or child support orders?
Where an order has been made, the court may award temporary custody of any child or dependent of the respondent to any person or institution, and regulate access.[34]
4.1.4 Is there a provision to order the abuser to move out or stay away from places that the victims frequent?

Every protection order must contain a provision that at any time other than when the protected person and the respondent are living in the same dwelling house (which can only happen with the express consent of the protected person), the respondent is not permitted to do the following, among other things:

  • watch, loiter near, or prevent or hinder access to or from the protected person's place of residence or another place they visit often
  • stalk the protected person, or stop or accost them anywhere
  • trespass anywhere the protected person is present
  • make any other contact with the protected person except with very limited exceptions[35]
4.1.5 Are there any other types of emergency, preventive and civil protection orders?

According to the Sexual Offenses Act, where any male person is convicted of incest or attempted incest, the court has the power to issue any order contained in the Children's Act 2012 ("Children's Act"), as well as to divest the offender of any authority they have over the victim. This includes removing any guardianship rights they have and appointing a replacement guardian of the victim while they remain a minor.

The following are particularly relevant orders under the Children's Act:

  • An exclusion order:[36] This requires a person who has used or threatened to use violence against a child to leave the home where the child lives entirely, and/or to refrain from entering the home or a specified part of the home where the child lives. It also prevents others from taking the child to visit the offender.
  • A wardship order:[37] This requires that a child be placed under the custody and protection of the court.
  • A production order:[38] This requires anyone who is harboring, concealing or otherwise unlawfully detaining a child, or who intends to remove them from Kenya or from the limits of the court's jurisdiction, to disclose any information they have regarding the child's whereabouts and/or to produce the child before the court.

Other orders include the following:

  • A supervision order: This places the child under the supervision of a children's officer or authorized officer while they remain in the possession and care of the person with which they are residing.[39]
  • A care order: This entrusts the care, control and possession of the child to someone who is not their parent, guardian or custodian, or to a local authority or institution appointed by the court.[40]
An interim supervision order[41] or interim care order[42] also exists.
4.1.6 Can these orders be requested by direct or indirect victims or legal representatives in children's cases?
In the case of orders made under Section 114 of the Children's Act, the child in question, their parent, guardian or custodian, their relative, the director of Children's Services or an authorized office may apply for any of these.[43] The Children's Act is less clear on who may apply for orders outside of the options outlined above.
4.1.7 Are there different types of civil protection orders, e.g., for a short- term period?
Interim protection orders may be made upon an application without notice outside of ordinary court opening hours. They can remain in force until they are replaced by a full protection order, or until they are varied or revoked by the court.[44]
4.1.8 Are ex parte orders permitted without the aggressor being present?
The list of people who may be present during the proceedings includes the parties and their advocates, but the court retains the power to hear proceedings in private or to exclude any person from the court.[45]
4.1.9 Do emergency orders also extend protection for abuse and intimidation to family members of the victim?
No.
4.1.10 How long do the orders last?
Protection orders remain in force for as long as the court deems necessary, depending on the circumstances.[46]
4.1.11 Please provide any data or hyperlinks to government or NGO websites that include information on how often civil protection orders are issued, and any relevant demographics information, e.g., police reports, convictions, etc.
No information is available.
4.2 Steps for receiving a protective order
4.2.1 What documentation is needed to obtain a civil protection order?

The documentation required includes the following:[47]

  • the application itself, to be lodged with the court
  • where directed by the court, the affidavit of anyone who can speak to matters that are relevant to the application
  • where directed by the court, the results of any investigations conducted by the police, a social worker, a probation officer or another authority
4.2.2 Does the victim need to attend a hearing?
It is unclear whether the victim is obliged to attend a hearing against their will. It would appear not because the court has the power to hear proceedings in private or to exclude people from the court.
4.2.3 Can you request remedies?
No.
4.2.4 Are there time limits?
There appears to be no time limit on when an order can be applied for. However, if the respondent wishes to appeal the protection order or any term contained within the order, they must do so within 30 days of the order being made.[48]
4.2.5 Are there different rules in emergencies?
A court may make an interim order upon an application without notice if it is satisfied that any delay might entail a risk of harm or undue hardship to the applicant or a child of the applicant's family.[49] In making this decision, it will consider (among other matters) the perception of the applicant or child, the nature and seriousness of the respondent's behavior, and the effects of that behavior on the applicant or child.[50]
4.3 Judicial discretion
4.3.1 What discretion does a judge have in granting a civil protection order or other protective orders?

A court may make a protection order if it is satisfied of the following:

  • that the respondent is using or has used domestic violence against the applicant or a child of the applicant's family, or both
  • that making the order is necessary to protect the applicant or a child of the applicant's family, or both[51]

The court may also consider whether the behavior forms part of a pattern of behavior in respect of which the applicant or a child of the applicant's family, or both, need protection.[52]

The court may consider the following additional matters:

  • the perception of the applicant or a child of the applicant's family, or both, of the nature and seriousness of the behavior in respect of which the application is made
  • the effect of that behavior on the applicant or a child of the applicant's family, or both[53]
4.3.2 Are there age limits on who can obtain orders?
There are no age limits on who can obtain orders in the legislation.
4.4 Restitution and remedies available to victims
4.4.1 Can victims obtain reimbursement for costs and restitution paid?

Yes, applicants can ask for costs and restitution from respondents. Where a victim of domestic violence suffers personal injuries, damage to property or financial loss as a result of the domestic violence, the court hearing a claim for compensation may award compensation in respect of the injury, damage or loss as it deems just and reasonable.[54]

A court hearing a claim for compensation may consider the following factors:[55]

  • the pain and suffering of the victim, and the nature and extent of the physical or mental injury suffered
  • the cost of medical treatment for the injuries
  • any loss of earnings arising from the injuries
  • the value of the property taken or destroyed or damaged
  • necessary and reasonable expenses incurred by the victim when the victim is compelled to separate from the respondent, including lodging, transport and moving expenses
  • the financial position of the victim and the respondent
  • the relationship between the parties and the reasonableness of requiring the respondent to make any payments
  • the possibility of other proceedings being taken between the parties under the laws relating to the financial provision for spouses and dependents
In addition, where an exclusion order has been made (i.e., an order granting the applicant exclusive occupation of the shared residence by excluding the respondent), the court may direct the respondent to pay all expenses or emergency monetary relief in respect of the applicant's needs and those of any child or dependent of the respondent.[56]
4.4.2 Can they recover wages and profits lost?
Yes, a court hearing a claim for compensation may consider any loss of earnings arising from domestic violence.[57]
4.4.3 Is a separate civil process required?
This is not clear from the legislation.
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