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Kenya

Anti-Bribery and Corruption Laws in Kenya

Kenya
Source of law Bribery Act (Act No. 47 of 2016) Anti-Corruption and Economic Crimes Act (Act No. 3  of 2003) (ACECA) 
Offence 
  • Active offence of offering, promising, or actual giving of an advantage to another for the improper performance of a function or activity (s5). 
  • Passive offence of requesting, agreeing to receive or receiving an advantage (s6). 
  • Corporate offences 
    • A private entity’s failure to prevent bribery  (s10).
    • A senior official’s consent or connivance to a private entity’s failure to prevent bribery (s9(2)). 
  • Duty to report: any person who is aware or suspicious of the commission of an offence under the Bribery Act is under an obligation to report it. Failure to report is an offence (s14(2)). 
  • Public officer offence of giving or receiving secret inducements for advice or information (s40). 
  • Conflict of interest, an agent’s failure to disclose a conflict of interest while continuing to participate in a transaction (s42). 
  • Improper benefits to trustees for their appointment or for joining or assisting in such appointment (s43). 
  • Bid rigging which interferes with public procurement (s44). 
  • Engaging in economic crime with regard to public property or revenue, such as mismanagement or misappropriation (s45). 
  • Abuse of office to confer a benefit on oneself or another (s46). 
The bribe  
Is there a presumption that any advantage was given/received corruptly? 

 

Yes

Would facilitation payments be caught?  1 S2 of the Bribery Act defines an “advantage” to include “any facilitation payment made to expedite or secure performance by another person”  
Would corporate hospitality be caught?  2  If intended to affect the person’s ability to act in good faith, impartially and/or in a position of trust.
Is there any de minimis? No 
Does the bribe have to be monetary? No 3  S2 of the ACECA defines a “benefit” to include “any gift, loan, fee, reward, appointment, service, favour, forbearance, promise or other consideration or advantage”. S2 of the Bribery Act provides a wide meaning of the word “advantage” to include among other things, any office, employment or contract; any service or favour including protection from any penalty or disability incurred and any facilitation payment.
Public officials  
Does the offence only apply to bribing public officials? No  4 The ACECA targets public officers, while the Bribery Act targets all persons. However, prosecutors will often charge public officials under the Bribery Act as read with ACECA.  
Acts  performed  outside Kenya  
Can bribery performed outside Kenya be caught? Yes (s15 of the Bribery Act) 
Does the act also need to be illegal in the foreign country of performance?  5  If the suspect or accused is a foreign public official. In this case, it must be proven that the official is not permitted or required to be influenced under the laws applicable to him or her (s8 of the Bribery Act).
Who can be liable  
Kenyan national? 

 

Yes 

Kenyan company? 

 

Yes 

Kenyan partnership (including limited liability partnership)? 

 

Yes 

Director of Kenyan company?  6  For instance, where a company fails to prevent corruption with the consent or connivance of a director.
Kenyan company if the bribe is committed abroad by its foreign subsidiary?  7  S15 of the Bribery Act includes liability for acts committed by associated persons. An associated person is defined under s11 of as a person acting on behalf of another. According to s11(2), this would be determined on a case by case basis, to establish whether the subsidiary was acting on behalf of the parent company.
Foreign subsidiary of a Kenyan company if the bribe is committed abroad?  8  Given that the subsidiary itself is a “private entity” as defined by s2 of the Bribery Act.
Foreign national / company / partnership if the bribe is committed in Kenyan? 

 

Yes 

Foreign national domiciled or “ordinarily resident” in Kenya if the bribe is committed outside Kenya? No (only Kenyan citizens – s15 Bribery Act) 
Foreign company / partnership if the bribe is committed abroad? Yes  9 Proof of procedures and policies to prevent corruption.