Protection against domestic violence act kenya pdf

There are various sources of law in Kenya, with the Constitution of Kenya 2010 ("Constitution") being the supreme law of the land. The Constitution is underpinned by other legislative measures, namely acts of the Parliament of Kenya and, in certain instances, customary laws. As referred to below, case law may be used to interpret the underlying legislative provisions. [1]

Kenya has ratified various international instruments that seek to protect and support the empowerment of women. It is understood that international conventions that are ratified by Kenya do not automatically become part of Kenyan law that can be relied upon by citizens. A further step is required by the legislature to transpose the international norms into domestic law.

The principal sources are as follows.

The Constitution

• The supremacy of the Constitution means that certain harmful cultural practices are unlawful, e.g., female genital mutilation.
• A ll citizens have the right to life, liberty, security of the person and their protection from the law.
• Article 28 affords all citizens the right to dignity.
• Article 29 affords all citizens the right to certain freedoms, including the right not to be treated in a cruel, degrading or inhuman manner.

Acts of the Parliament of Kenya

• Sexual Offenses Act 2006 ("Sexual Offenses Act"): [2] This act seeks to afford protection against sexual violence and contains a range of offenses, but it is generally considered to provide inadequate protection against sexual violence, which is now supplemented by the Protection Against Domestic Violence Act 2015.
• Protection Against Domestic Violence Act 2015 ("Domestic Violence Act"): [3] For a number of years, it was well documented that Kenya did not have a comprehensive legislative measure addressing domestic violence. Passing the Domestic Violence Act was intended to change this and it has introduced additional protections for women against violence in intimate relationships. The definition of violence in the Domestic Violence Act is quite extensive and it includes marital sexual abuse, emotional abuse and harassment. This is a welcome development.
• Penal Code of Kenya ("Penal Code"): The Penal Code provides the general criminal law framework in Kenya dealing with offenses (misdemeanors or felonies) and prescribes the penalties for them. The various offenses under the Penal Code that impact women can be divided into two main categories: (i) sexual offenses; and (ii) offenses against the person. Sexual offenses are addressed more directly in the Sexual Offenses Act.

The legal system in Kenya is based upon English common law. The supreme law is the Constitution, and any other law that is inconsistent with the Constitution is invalid to the extent of the inconsistency. Case law may be used to interpret legislation. The highest court in Kenya is the Supreme Court, the decisions of which are binding on the Court of Appeal of Kenya, the High Court of Kenya, the magistrates' courts, and specialized courts and tribunals.

With regard to domestic violence, it appears that there are no particular "controlling" cases. However, several cases provide examples of how the courts interpret the underlying legislative framework. These cases (examples of which are summarized below) demonstrate the court's inherent discretion in applying the laws:

• Republic Prosecutor v. Johana Munyau Mweni: [4] In this case, the defendant was found guilty of murdering his wife, contrary to Section 204 of the Penal Code, which provides for a mandatory death sentence. However, the court considered the case of Francis Karioko Muruatetu & Another V. Republic, [5] which provided that Section 204 of the Penal Code is inconsistent and invalid to the extent that it provides for a mandatory death sentence, notwithstanding that the death sentence is applicable as a discretionary maximum punishment.
• In Republic Prosecutor v. Johana Munyau Mweni: The court concluded that, in light of the defendant's age (48 years old) and mitigation (he had never met his father, his mother had committed suicide when he was young and he was reported as having been a pastor in his cell), he should be sentenced to 35 years in jail.
• Geoffrey Yegon v. Republic: [6] The case concerned an appeal from the judgment, conviction and sentencing in the chief magistrate's court of five years of imprisonment in respect of grievous harm contrary to Section 234 of the Penal Code. The appellant, who had repeatedly hit the victim on the head and inflicted a fracture on her finger, urged the appeal court to reconsider a noncustodial sentence, stating that it was his first offense, that he had family responsibilities and that he was remorseful. While appeals can generally grant the court wide discretion, in this case, the court dismissed the appeal stating, "to discourage the potential offenders a custodial sentence is deserved."
• FK v. CMM: [7] This case concerned an appeal by a husband whose wife had lodged before the court a motion under Sections 8, 13 and 24 of the Domestic Violence Act. The wife (now the respondent) had been granted an interim order of exclusive possession against the appellant (her husband) to be enforced by the police. The appellant appealed on the basis that the grounds against him were not proven and, therefore, the respondent should not be entitled to exclusive possession of the land. The court allowed the appeal, noting that the orders, though interim, were final in nature and that no prejudice would have been suffered had the court waited for a short period to hear the appellant before granting the orders.

Under the Domestic Violence Act, jurisdiction for proceedings is vested in the resident magistrates' courts.