The Domestic Violence Act was enacted into law in 2015.^[58] As part of the reforms, it is intended that all police officers should be trained to deal with family-related matters, including domestic violence, and complainants should be able to report to the police without fear.^[59] However, in practice, it is not always straightforward to involve the police. In particular, during the COVID-19 pandemic, restrictions have made it harder for victims to report abuse.^[60]

Once a victim has alerted the police that they have been a victim of domestic violence, the police have a duty to advise the victim of their rights (including providing access to shelter, medical assistance, etc.) and how they can apply for relief or lodge a criminal complaint.^[61]

How do the police get involved?

First step: The victim reports to the police station and they are then referred to a medical facility for examination. Here the victim is examined and a medical report or, in the case of rape, a post-rape care (PRC) form is created.

Second step: There are two routes, as follows:

1. The medical report or the PRC form is sent to the police station to initiate the investigation by issuing a P3 form.
2. The victim reports at a medical facility for medical treatment. They are then referred for re-examination at a police station to report the matter and to be issued with a P3 form.

Third step: Once the P3 form is issued, the victim must visit a government-designated medical facility for re-examination and for the P3 form to be filled out. This can take days or weeks because the victim may have to wait for a specific day when the medical practitioner is available.

Fourth step: When the P3 form is completed, it is returned to the police station. The P3 form serves as an exhibit in the sexual/physical assault allegation.

Fifth step: All forensic evidence is then sent to the Government Chemist Department's laboratory in the Forensic Biology Unit.

Sixth step: Suspects may be examined or they may undergo reference sample collection at the police station. It is less common for biological reference samples to be collected from victims.

Seventh step: All the information collected is placed in the police file until it is submitted to the court for prosecution.^[62] The attorney general decides whether a police investigation should be discontinued.^[63]

In the Domestic Violence Act, various types of people can represent the victim as the "applicant's representative." However, a lawyer or law firm is not included on this list.

In Kenya,^[66] generally, the burden of proof is borne by the plaintiff or claimant (the victim bringing a claim) in civil cases and by the prosecution (those pressing charges on behalf of the state) in criminal cases.^[67]

Normally, evidence would need to be corroborated in criminal cases; however, in criminal cases involving a sexual offense, evidence does not need to be corroborated as long as the court is satisfied that the alleged victim is telling the truth.^[68]

An ex parte order takes place where one party brings legal proceedings in the absence of the other party, i.e., the accused is not notified and is not present at the hearing.

Yes. Under the Sexual Offenses Act, several affirmative defenses are available. For example, the following are defenses to the offense of defilement (penetration of a child):

1. if it is proved that the child victim deceived the accused person into believing that they were over 18 years old at the time of the offense
2. if the accused reasonably believed that the child was over 18 years old^[71]

False accusations are punishable. Under the Sexual Offenses Act, it is an offense to make false allegations against another person that they have committed an offense under that act. In the case of a false allegation, the accuser can be punished in the same way as the punishment for the offense complained of.^[72]

Self-defense is not a defense for domestic violence or sexual assault crimes.

Insanity is a defense under the Penal Code. An accused person is not criminally responsible for an act or omission if, at the time of committing the act, it is through a "disease of the mind" and the person is incapable of understanding what they are doing.^[75] However, a "disease of the mind" will not be a defense if the illness does not cause the accused to be incapable of understanding what they are doing or of knowing that they ought not to do the act. In other words, the insanity must cause the inability to understand specifically in relation to the crime to be a defense.

Under the Evidence Act, a witness will not be excused from answering any questions on the ground that the answer to these questions will incriminate that witness or expose the witness to a penalty or forfeiture of any kind. No answer that a witness is compelled to give will subject them to any arrest or persecution or be proved against them in any criminal proceedings, except a prosecution for giving false evidence by the answer.^[76]

A witness can refuse to testify if it will lead to the identification of another witness.^[78] As explained below, vulnerable witnesses can refuse to testify. A vulnerable witness can be the victim, a child or a person with a mental illness.^[79]

In addition, a witness can rely on two key "excuses," as follows:

1. Communication with a spouse: A person cannot be compelled to disclose communication made to them during a marriage by the other spouse. To disclose any communication during a marriage, the person needs to obtain permission from their spouse.^[80]
2. Communication with an advocate: A person cannot be compelled to disclose any confidential communication that has taken place between them and their advocate unless they offer themselves as a witness, in which case they may be compelled to disclose the communication as the court may think necessary to explain any evidence that they have given, but no others.^[81]

Under the Sexual Offenses Act, a court dealing with criminal proceedings involving allegations of a sexual offense can declare a witness a vulnerable witness if the witness is the accused, a child or a person with a mental illness.

If a child witness is declared a vulnerable witness, the court will direct that the following protect the child:

1. allowing the child to give evidence under the protective cover of a witness protection box
2. directing that the witness give evidence through an intermediary
3. directing that the proceedings may not take place in open court
4. prohibiting the publication of the identity of the complainant or the complainant's family, including any information that may lead to their identity
5. any other measure that the court deems just and appropriate^[82]

If a child is the victim of an indecent act, the person that commits the indecent act is guilty of committing an indecent act with a child and is liable upon conviction to imprisonment for a term not less than 10 years.^[84]

A person who commits an act that causes the penetration of a child is guilty of an offense termed defilement.^[85] The sentence term depends on the age of the child, as set out below:

11 years old or younger

Imprisonment for life

Between 12 and 15 years old

Imprisonment for at least 20 years

Between 16 and 18 years old

Imprisonment for at least 15 years

However, there is a defense to the charge of defilement if it is proved that the child deceived the accused into thinking that they were over 18 years old or if the accused reasonably believed that the child was over 18 years old.^[86] When determining if the accused held a reasonable belief regarding the victim's age, the court will consider all circumstances, including any steps the accused person took to ascertain the age of the victim.^[87]

If a child is a witness to a rape or indecent act, the accused is guilty of an offense and is liable to imprisonment for a term not less than 10 years.^[88]

The Domestic Violence Act states the following:

Where any offence, other than one referred to in this Act, is committed by a respondent upon an applicant during or in furtherance of the commission of any act of domestic violence, the court convicting the respondent thereof shall have regard to such circumstances as aggravating the offence committed, when assessing the sentence to be imposed.^[89]

Under the Domestic Violence Act, a respondent who has been served with a copy of a protection order and who contravenes the order in any respect commits an offense and is liable to a fine not exceeding KES 100,000 or to imprisonment for a period not exceeding 12 months, or to both.^[90]

In addition, if a police officer believes on reasonable grounds that any person has committed an offense under this same act, the police officer may arrest and detain the person without a warrant. In doing so, the police officer should consider the following:

• the risk to the safety of the protected person or property
• the seriousness of the act that constitutes a breach
• the time that has lapsed since the alleged breach was committed^[91]

See above in respect of fines and penalties under the Domestic Violence Act.

Furthermore, under the Domestic Violence Act, where a victim of domestic violence suffers personal injury, 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, taking into account the following factors, among others:

• the pain and suffering of the victim
• the cost of medical treatment
• any loss of earnings^[92]

There is no clear provision under Kenyan domestic violence legislation.

However, where a convicted and dangerous sexual offender has been released after serving part of a term of imprisonment imposed by the court, the court will order that the prisons department must ensure that the offender is placed under long-term supervision by an appropriate person for the remainder of the sentence.^[93] Under this order, an offender may be required to refrain from visiting a specified location; refrain from seeking employment of a specified nature; and subject themselves to a specified form of monitoring.^[94] A long-term supervision order made by a court will be reviewed by that court within three years from the date on which the order was made or within a shorter period as the court may direct upon a referral by the commissioner of prisons of an order to that court for review.^[95] The court will 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 and may make representations.^[96]