Guidance

Information Pack for British Nationals detained or imprisoned in Kenya

Updated 13 September 2023

Author British High Commission, Kenya

Date: August 2023

0.1 Contents

0.2 Chapter 1: Key points

  • Overview
  • First Steps

Chapter 2: Detention conditions in Kenya

  • Visits
  • Police custody and initial arrival at prison
  • Prison: conditions and daily life
  • Prison: access to help and services

Chapter 3: the Kenya judicial system

  • Overview and first steps
  • Trial and legal assistance
  • Reaching the end of your sentence

Chapter 4: Additional Information

  • Additional Information
  • Prisoners Abroad
  • Glossary of Terms
  • Annexes

0.3 Chapter 1: Key Points

Overview

If you are a British national, and are arrested or detained in another country, consular staff will do what they can to help you, but they cannot interfere with the local justice system, get you out of jail, or pay for services such as a lawyer. Information about who we can help, including the circumstances in which we can assist dual nationals, is available at: Support for British nationals abroad.

This detention information pack is designed to give you, and your family and friends, information about the local system in Kenya and who can help. A printed copy is provided to those in prison or in custody, and an online version is available at: https://www.gov.uk/government/publications/kenya-list-of-lawyers/list-of-english-speaking-lawyers-in-kenya. We welcome feedback to help us improve the information we can provide to others.

Contacting us

If you are arrested or detained in another country:

  • The authorities should ask whether you want them to contact the British Consulate (and must do so if you want them to).

  • Even if they do not ask, you can make the request yourself, and should do so, particularly if you are charged with a serious offence or need any kind of assistance.

  • Friends or family can also contact the local British Consulate or the Foreign, Commonwealth & Development Office (FCDO) in London on +44 (0)20 7008 5000.

In some countries, the authorities might notify the British Consulate even if you don’t want anyone to know that you have been arrested. This is because there may be an agreement in place with the British Government which requires a mandatory notification to be made.

Who we are

Consular staff work in the Foreign, Commonwealth & Development Office in London, and in British Embassies, High Commissions and Consulates overseas.

The British High Commission in Kenya can be contacted as follows:

British High Commission, Upper Hill Road, P.O. Box 30465-00100, Nairobi Telephone: +254 (0)20 2844000, +254 (0)20 2873000

Website: https://www.gov.uk/world/organisations/british-high-commission-nairobi

You can also contact us by phone 24/7 for help or advice from anywhere in the world by calling the Foreign, Commonwealth & Development Office on +44 (0)20 7008 5000.

What we can do

The FCDO can offer you impartial and non-judgemental help. Once notified of your arrest or detention, consular staff will aim to contact you as soon as possible so that we can assess how we can help you. We then aim to provide assistance according to your individual circumstances and local conditions: our priority is to provide assistance to those British nationals overseas that need our help the most.

In Kenya we are rarely notified by the authorities of an arrest. It is more normal for us to be notified by a friend or relative.

Once we are notified, we aim to contact you within 24 hours.

We can also:

  • provide a list of local English-speaking lawyers and interpreters. See also page 18.
  • provide general information about the country, detention conditions, and the local legal system (including if legal aid is available).
  • provide general information about the local prison or remand system, including visiting arrangements, mail and censorship, privileges, and welfare services.
  • keep in regular contact with you, either by visiting or by telephone/letter. The frequency of contact will depend on local conditions and your personal circumstances.
  • tell the police or prison doctor, with your permission, about any medical or dental problems including medication.
  • put you, or your family, in touch with a prisoners’ welfare charity called Prisoners Abroad.
  • in some circumstances we may be able to help take up complaints with the police or prison authorities about ill treatment, personal safety, or discrimination, if you are not treated in line with internationally recognised standards.
  • help to transfer money to you from your friends or family. In places where phone or postal services aren’t available, we can also pass on messages and deliver letters to the prison (but generally we cannot arrange for delivery directly to you – see page 14).

What we can’t do

  • get you out of prison or detention
  • help you get special treatment
  • offer legal advice, start legal proceedings or investigate a crime
  • pay for any costs as a result of being arrested
  • forward you packages sent by friends or family
  • prevent authorities from deporting you after release

0.4 First Steps

Can you / will you tell my family?

If you want us to, we can tell your family or friends that you have been detained and can provide them with information about how to contact you in prison or detention. With your consent, we can also keep them updated on your well-being.

If you are not sure about informing your family, we can help you consider the impact that not doing so might have. For example, it may cause them distress if they do not know where you are, or cannot contact you. It can also be a disadvantage to you if you need someone to send you money or act on your behalf while you are detained.

Will the UK Police be informed?

If you are accused of certain serious offences, such as sexual assault or drugs trafficking, we are obliged to share information about your arrest with UK police. It is therefore possible that information about this may appear if a Criminal Records Bureau check were carried out by a prospective employer. There may be other circumstances in which information about you may need to be shared by ourselves or authorities in Kenya.

Do I need a lawyer? / How can I find a lawyer?

Although we cannot give legal advice, start legal proceedings, or investigate a crime, we can offer basic information about the local legal system, including whether a legal aid scheme is available. A list of local English-speaking lawyers is attached to this pack. See also page 18. You will want to consider the benefits of local legal representation and to discuss all the costs beforehand with the legal representative. In no circumstances can we pay your legal costs.

Can you get me out?

We cannot get you out of prison or detention, nor can we get special treatment for you because you are British. However if you are not treated in line with internationally accepted standards we will consider whether to approach local authorities. This may include if your trial does not follow internationally recognised standards for fair trial or is unreasonably delayed compared to local cases.

Who else can help me?

We can put you, or your family, in touch with Prisoners Abroad, a UK charity which supports British citizens detained overseas and their families: www.prisonersabroad.org.uk

0.5 Chapter 2: Detention conditions in Kenya

Visits – friends and family

Can my family and friends visit me? How can I arrange a visit?

The number of visits and letters allowed per month varies according to the level the prisoner is at within the prison system. The number of visitors allowed at any one time may depend on the facilities available at the prison but usually no more than 3 people will be able to see the prisoner at any one time.

Visits take place within the working hours of the prison.

Prisoners on remand may receive regular visits from family and friends.

It is not always necessary to arrange a visit in advance but visits can be arranged through the prison office.

A list of prohibited items is displayed in each prison.

What can visitors expect?

Where visits take place depends on the facilities available at the prison and security considerations. They may be in a booth, a communal area or a designated room for contact visits. The amount of time a visit lasts is discretional but may depend on operational considerations.

Visitors need to take ID and will be searched on arrival.

A prison officer will remain in sight and earshot during visits except during visits from a consular official or the prisoner’s lawyer, when the officer will generally be in sight but not earshot.

What can visitors bring?

Unconvicted prisoners may be allowed to receive additional clothes and essential items from visitors, subject to examination by prison officers.

Visitors may be bring toiletries.

Food items are not allowed for convicted prisoners and a list of prohibited items is displayed at the prison.

Visits – Consular staff

Consular staff will aim to make contact with you as soon as possible after being advised of your arrest/detention. We will aim to visit you as soon as possible after being notified of your detention and approximately every four months.

Consular staff must officially request permission to visit from the Kenyan authorities. There can be delays in obtaining this permission.

If there is a need to speak to us between visits, you should speak to the Welfare Officer at the prison.

A prison officer will be within sight during consular visits.

Emergency trips outside of prison

Trips outside the prison are rarely allowed.

0.6 Police custody and initial arrival at prison

Arrival at the police station & basic rights

If you are arrested you have the right to be informed of the reason for your arrest, the right to remain silent and to be allowed to contact a lawyer. You should be asked whether you want the High Commission to be informed. If you are detained you have, among other rights, the right inform family members and to receive visits, to receive medical attention if required and access to an interpreter if required.

Appearance at court

The first appearance in court should be within 24 hours of arrest. If the case is not ready to be charged then the prosecutor will ask for more investigation time.

At the first court appearance after charge, the accused is usually asked to plead to the charges against them.

More information about the Kenya judicial system can be found in Chapter 3.

Initial arrival at the prison

On arrival in prison, a prisoner is searched. Belongings that are not allowed in prison will be held in store until release. An inventory of items is made which the prisoner signs. Large items may not be accepted in the prison.

Remand prisoners may be allowed to keep some personal possessions.

A number of administrative and documentary procedures will be gone through which include: checking that there is a valid commitment order, logging the prisoner’s details and checking their health status. A health form is generally completed. A medical examination should take place soon after arrival but prisoners should make it known if they have any medical conditions or an urgent need to see a doctor.

A telephone call can be arranged through the prison welfare officer. Bedding will be provided and convicted prisoners issued with uniform. Prisoners are advised of the prison rules, punishments and privileges.

Prison: conditions and daily life

Prison conditions are basic and overcrowding is common.

Information about prisons and prison rules can be found in the Prisons Act

Accommodation

Remand prisoners and convicted prisoners are held separately and female prisoners are kept separately from male prisoners. Juveniles should also be held separately. Some inmates are also separated according to their offence.

Overcrowding is common in Kenyan prisons. Conditions and facilities available may depend on how congested the prison is.

Most cells are shared and some are large and overcrowded. Conditions are basic. Inmates are given mattresses and blankets. In some prisons some inmates may be given a bed. Washing and toilet facilities are available in the cells. Natural light is available and there is usually electricity.

Food and Diet

Food in prison is basic but balanced. Inmates are given three meals a day. Special diets for religious or health reasons are generally catered for. Inmates are generally able to buy extra food from the prison canteen/shop. Fresh drinking water is available.

Hygiene

Shower facilities are usually communal but there are no limits on how often inmates can shower/wash. Toiletries are provided by the prison but inmates are generally able to buy additional items from the prison. Relatives can also bring additional toiletries (not during COVID-19) and NGOs sometimes also assist.

Work and Study

Prisoners are expected to keep their cells, clothes and other items issued to them clean and tidy. Formal work is not compulsory. There are, however, usually opportunities for work such as keeping the compound clean, gardening, cooking the meals for inmates and also opportunities to practice crafts such as carpentry and tailoring.

It is usually possible to study in prison and some inmates are able to pursue formal education.

Contact and Languages

Inmates are generally able to interact with other prisoners. The official languages in Kenya are English and Swahili though other languages are also spoken. Prison officers speak English and Swahili.

Many prisons have libraries, televisions and radios. Newspapers are not always available.

Some prisons have other cultural activities, such as choirs and acrobatics. Cultural and social activities involving visitors have been suspended during the COVID-19 pandemic.

Access to phones and writing materials can be arranged through the Welfare Officer.

There is no internet access.

There is the possibility to request local language materials through the post from Prisoners Abroad (including language textbooks and dictionaries).

Exercise

Prisoners are able to spend much of the day outside. Sports such as football and volleyball are available in some prisons.

Climate

The Kenyan climate varies according to the area. Some areas can be cold, particularly at night. Other regions such as the coast can be hot and humid. Rainfall is dependent on the season.

Adequate clothing is provided.

Religion

Religious worship is allowed in prison and all the major religions in Kenya are represented.

Rules and regulations (including drugs)

Prison rules and regulations are explained to prisoners on admission.

Misbehaviour can lead to a variety of sanctions such as visiting rights being postponed, isolation, losing remission and can have an effect on parole.

Prison authorities do not routinely test for drugs. Drugs and alcohol are prohibited in prison.

0.7 Prison: access to help and services

How can I receive money?

There are two ways in which you may be able to receive financial assistance while in prison.

  • Private Funds: Deposited to you by your family or friends. The FCDO can assist with this if your family and friends are abroad. If you have family or friends in Kenya they can deposit funds at the prison office.
  • Prisoners Abroad: Depending on where you are detained, if your family can’t support you financially, Prisoners Abroad may be able to send you a small grant every quarter for essentials (enough for one hot meal a day).

The British Government does not provide financial assistance to prisoners.

Private funds

While the FCDO does not provide financial assistance to prisoners, we may be able, within certain limits, to send you money from your family.

The FCDO operates a “Prison Comfort” system for money transfers to prisoners. Please ask your family to get in touch with the FCDO in order to arrange this.

We are unable to receive payment by credit or debit card, or by cash.

Prisoners can receive funds from friends and family but prisons do not have bank accounts. Money is usually deposited in cash.

Prisoners Abroad

In addition, Prisoners Abroad, a UK charity, may be able to assist you with funding for prison essentials and some medical care if you are not in receipt of any regular donations from other sources.

Can I receive medical and dental treatment?

While you are in detention, Kenya is responsible for ensuring your basic medical needs are met.

Private Hospitals in Kenya are expensive but usually well equipped with well trained staff.

Smaller government hospitals are often poorly equipped but the larger Referral hospitals and those in major towns generally provide a good standard of care.

A medical officer or doctor is attached to every prison. Some prisons have small hospitals on site. Prisoners may be taken to outside hospitals in emergencies, for specialist treatment and tests where necessary.

Inmates with general health or mental health concerns can raise these with the medical officer/doctor and the welfare officer.

Some prisons have dispensaries attached. Medicines required on a regular basis are made available to inmates as needed.

With your permission, we can make sure that any medical or dental problems you might have are brought to the attention of any police or prison doctor. We can also liaise with your GP in the UK, if the police or prison doctor requests previous medical records and this is in your vital interests.

Mail/Parcels

Fewer prisoners write letters nowadays but they can generally write and receive one letter per month. Letters will be opened and censored.

Can I make telephone calls?

Inmates can arrange for telephone calls through the Welfare Officer. Access has increased during the COVID-19 pandemic.

Mobile phones are not permitted and the use of unauthorized mobile phones may lead to punishment or sanctions.

How can I make a complaint about mistreatment?

If you have been mistreated, please inform Consular staff as soon as it is safe for you to do so. We will then do our best to visit you, to check on your welfare, discuss the allegations, and inform you of any local complaints procedures and supportive organisations that you may wish to consider. With your permission, and where appropriate, we will consider approaching the local authorities if you have not been treated in line with internationally-accepted standards. If you have been mistreated, please try to see a doctor, obtain a medical report and if possible photos of the injuries you received.

Prisoners can raise concerns through the welfare officer, the officer in charge or the Commissioner. Many prisons also have a facility for prisoners to complain to the Kenya National Commission for Human Rights.

0.8 Chapter 3: the Kenyan judicial system

Overview and first steps

Is the system the same as the UK?

The Kenyan legal system is based on the British system. A person is presumed innocent until proven guilty. Accused persons are able to plead guilty or not guilty to the charge.

If an accused person pleads guilty, the case may be dealt with immediately or a date may be given for the judge/magistrate to give the ruling on sentencing.

There is no jury system in Kenya and cases are determined by the magistrate or judge.

The High court handles cases of murder, treason, crimes under international law, appeals and other cases referred from the Magistrates court.

Other cases are heard in the Magistrates court.

Court cases are heard over a series of hearings which can be weeks or months apart. Delays and adjournments are common and cases can take months or years to be concluded. The case is generally “mentioned” in court every two weeks.

If bail is not allowed or cannot be raised, an accused person remains in custody in a prison or remand facility.

The prosecution case is heard first. The magistrate/judge then reviews the evidence and rules as to whether the accused has a case to answer. If there is no case to answer, the accused is acquitted. If there is a case to answer, the defence case is heard. Once the case is complete, the magistrate or judge will make a ruling and decide on the sentence if the accused is found guilty.

Useful information can be found at https://www.judiciary.go.ke/ and at the below:

The FCDO cannot interfere with the judicial system. We cannot ask for your case to be judged more quickly just because you are British, or ask the authorities to waive any penalties.

What should happen when I am arrested?

An arrest can be made without a warrant in some circumstances. The arresting officer should introduce himself and advise you of the reason for arrest. You may be handcuffed.

If arrested, the accused has the right to inform family members of the arrest and to communicate with them and receive visits. The authorities should ask the accused whether they wish to inform the British High Commission and, if so, to do so. This does not always happen.

An arrested person has the right to an interpreter if required.

Arrested persons also have the right to communicate with a lawyer.

A statement will be taken.

An arrested person should be brought before a court within 24 hours after arrest or at the earliest opportunity if the arrest takes place for example over a weekend or on a Public Holiday.

If you feel unwell or need access to medication, inform the officers as soon as possible.

Should you have any questions concerning the legal aspects of your arrest, contact your lawyer. A list of local English-speaking lawyers is provided at the end of this pack.

For how long can I be remanded in custody?

If an arrested person is not given police bail, they are often held in police custody until their court appearance. This should be within 24 hours of arrest or as soon as possible – for example if the arrest takes place on a Saturday the court appearance would be on the Monday.

The 24 hour period can be extended in some cases and the court can order further time for investigations up to a maximum of 90 days. Guidelines for terrorism related charges can be found in the Prevention of Terrorism Act (30 of 2012, Laws of Kenya).

If you are held in custody it is likely that your personal possessions, including your phone, will be taken from you and kept safely.

Arrested persons can also be held in a prison remand facility and will generally be moved to one following their court appearance if bail is not granted or until bail is raised.

Conditions in police custody and in remand facilities are basic and cells are often overcrowded. Visits are allowed and visitors may bring additional food and soft drinks. Remand prisoners are kept separately to convicted prisoners. Remand prisoners can wear their own clothes.

What happens when I am charged?

You will usually be asked to plead to the charges against you at your first court appearance after charge.

Court procedures are usually held in English but you have a right to an interpreter if you do not understand proceedings. You have a right to a lawyer.

The acoustics in some courtrooms are poor and it can be difficult to hear proceedings.

What provision is there for bail?

Bail may be allowed by the police or by the court.

Although bail is allowed for most charges, the court will take into account many factors, including the seriousness of the offence and whether the accused is judged to be a flight risk.

If bail is allowed, the court will also set conditions, which may include the submission of a passport. An accused person can apply to the High court to review bail conditions.

Bail may include the need for a Kenyan surety, which can be problematic for foreigners/visitors to Kenya.

If bail is denied or the accused cannot raise bail, prisoners are held on remand in prison. Consular staff can contact friends or family who may be able to help raise bail with the permission of the accused British national.

If an arrested person is offered police bail, this is paid at the police station.

If granted bail by the court, this is paid at the court. It is likely that you will be held in custody/on remand until bail is paid and the relevant paperwork completed.

The FCDO is not able to facilitate the transfer of bail funds.

If you wish to hire a private lawyer, a list of English-speaking lawyers is provided at the end of this pack. Prisoners Abroad can also supply information on legal aid, court proceedings and can advise on appointing a lawyer.

Private lawyers will generally request an advance on their estimated legal fees before taking on a case.

Legal fees can be expensive.

Civil trials: The costs depend on the type of case. A minimum fee scale for various costs is available in the Advocates Remuneration Order 2014. After judgement of the case the court will indicate who will be responsible for the costs.

Criminal cases: The accused is responsible for his/her own costs. The costs are generally negotiated between the lawyer and the client.

Legal Aid is available through the National legal Aid Service (NLAS). However, eligibility is limited to citizens of Kenya, children, refugees under the Refugees Act, victims of human trafficking, internally displaced persons and stateless persons. Full details are available at http://kenyalaw.org/kl/fileadmin/pdfdownloads/Acts/LegalAidAct_No._6_of_2016.pdf

Some local NGOs may be able to assist with legal advice –see chapter 4 for more details.

With your permission, consular staff can also liaise with friends/family to assist with legal fees.

What happens at the trial?

In general, the trial procedure is as follows:

  • The accused is charged in court and a plea is taken.

  • A bail/bond application and a decision on that application is made.

  • There may be a pre-trial conference at this stage.

  • The prosecution will present their case first, with opening remarks, witnesses, cross-examination of witnesses, closing remarks.

  • The Judge/magistrate determines whether there is a case to answer.

If it is found that there is no case to answer, the accused is released.

If there is a case to answer:

The defence will present their case, with opening remarks, defence witnesses heard, cross-examination of defence witnesses, re-examination of witnesses, closing submissions.

Ruling/decision

If the accused is found guilty – defence and prosecution remarks and if made, a victim impact statement, will be heard before sentencing.

Trials can take many months or even years to conclude. Cases are heard over a series of hearings between which weeks or months can elapse. Delays and adjournments are common.

Sentences

Sentences depend on the offence committed. Types of sentence include:

  • Imprisonment, fines, payment of compensation.

  • Foreigners may be deported/repatriated.

The death penalty is available to the courts for certain offences – murder, robbery with violence, treason and some military offences. However, there has been no execution in Kenya since 1987.

How can appeals be made?

Sentences and convictions can be appealed within 14 days of conviction.

0.10 Reaching the end of your sentence

What provision is there for reduction of sentence (remission) e.g. for good behaviour?

Remission may be allowed up to one third of a prisoner’s sentence, but a prisoner must serve at least one month in prison. There are exceptions to this.

What provision is there for early release e.g. on parole?

The Commissioner may allow parole for prisoners serving a minimum sentence of 4 years within 3 months of their release date. Conditions may be attached. Prisoners on parole can be recalled to prison. Prisoners who fail to comply with any conditions are guilty of an offence.

What provision is there for clemency or pardon?

Presidential pardons are sometimes issued.

What about any financial penalties?

Sentences often involve a fine or imprisonment if the fine cannot be raised.

Is transfer to another prison within Kenya possible?

Transfers to other prisons in Kenya do occur at the discretion of the Officer in Charge.

Is transfer to the UK a possibility?

No. There is no Prisoner Transfer Agreement between Kenya and the United Kingdom.

What are the procedures for release and deportation?

Where repatriation or deportation is required following the completion of a sentence, the prisoner would generally remain in custody until flights and travel documents are arranged. The prisoner or their family may be asked to pay for the flight.

Sometimes people find that they face difficulties adjusting to life in the UK once they have left prison. You may find yourself ready for life on the outside but not prepared for living in the UK. Possibly you have never lived in the UK and have no connections there, or perhaps you have lost touch with friends and family. You may simply want to talk to another person who understands what you have been through, to help you consider what to do next.

If you are registered with Prisoners Abroad you can visit Prisoners Abroad when you first arrive back in UK for advice, to take a shower, use their temporary luggage store, make essential phone calls or use a computer. If you have no belongings Prisoners Abroad may be able to help with basic toiletries and finding suitable clothing. If you know your release date in advance it is best to write and tell your caseworker when you are likely to arrive and what help you think you might need. If you have no money and nowhere to go, Prisoners Abroad’s Aftercare Service can help with:

  • advice on finding emergency accommodation in the London area
  • claiming welfare benefits, including emergency benefit payments if you are destitute
  • making appointments with doctors and dentists
  • putting you in touch with local agencies if you are not returning to the London area.

Later on you may want advice on housing, looking for work, applying for training or getting counselling. Prisoners Abroad can refer you to the right agency.

Other sources of practical help back in the UK are: The Salvation Army – UK Helpline 020 7367 4888, Monday to Friday 8 AM to 4 PM, or contact your local Salvation Army branch – and The Prison Fellowship, UK Helpline 020 7799 2500, Monday to Friday 9 AM to 5 PM.

Would I have a criminal record in the UK?

We will not normally pass on information about your case to a third party without your consent. However, if you’re arrested for certain serious offences, such as child sex abuse or drugs crimes, our staff must tell other relevant UK authorities. It is therefore possible that information about this may appear if a Criminal Records Bureau check were carried out by a prospective employer.

0.11 Chapter 4: Additional Information

Additional Information

NGOs:

Prisoners Abroad

Since 1978 the charity Prisoners Abroad has offered practical support and advice to British citizens imprisoned overseas. It is the only UK charity providing this service and it is available to all, whether guilty or innocent, convicted or awaiting charge or trial. Prisoners Abroad is concerned with your health and welfare, both during your imprisonment and also on your return to the UK, through their resettlement service (if you have registered whilst in prison). They can also provide support and advice to your family during your imprisonment. In order to access any services, prisoners must first register with Prisoners Abroad by signing and returning their authorisation form.

Once you seek help from Prisoners Abroad, the Prisoner & Family Support Service will be your point of contact for advice and information. The type of assistance they can offer will vary from country to country, but generally they can provide you with information, in English, on:

  • your rights as a prisoner and issues that may affect you such as health or transfer to the UK
  • obtaining magazines, newspapers, books and the regular Prisoners Abroad newsletter
  • learning the language of your country of imprisonment
  • translation of documents
  • grants for food if you are in a developing country and don’t have funds from other sources
  • grants for essential medicines and toiletries if you don’t have funds from other sources
  • preparing for release
  • help for your loved ones, including information, family support groups and, in a few cases, assistance with the cost of visiting

Prisoners Abroad
89 – 93 Fonthill Road
London N4 3JH
UK

Telephone: 00 44 (0)20 7561 6820
or, for your relatives in the UK, Freephone: 0808 172 0098

(Mondays and Tuesdays 9.30 am to 6pm, and Wednesdays to Fridays 9.30 am to 4.30 pm, UK time)
Email: info@prisonersabroad.org.ukWebsite: www.prisonersabroad.org.uk

Annex