jurisdiction

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?   
Would corporate hospitality be caught? 
Is there any de minimis? No 
Does the bribe have to be monetary? No
Public officials  
Does the offence only apply to bribing public officials? No   
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? 
Who can be liable  
Kenyan national? 

 

Yes 

Kenyan company? 

 

Yes 

Kenyan partnership (including limited liability partnership)? 

 

Yes 

Director of Kenyan company? 
Kenyan company if the bribe is committed abroad by its foreign subsidiary? 
Foreign subsidiary of a Kenyan company if the bribe is committed abroad? 
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