national council f or

LAWREPORTOnJG
l i b r ar y

SP E C I A L I SSU E

Kenya Gazette Supplement No. 33 (Acts No. 4)

R E PU B L I C O F K E N Y A

K E N YA GA Z E T TE S UP P L E M E N T

A CTS, 2022

NA I R OBI , 7th M ar ch, 2022

CO N T EN T

A c t—

Pa g e

The Narcotics, Drugs and Psychotropic Substances (Control) (A mendment)

A ct , 2022 51

P p w n f -.'a

2 9 JUN 2Q22
P. O. Box 'n .'443 - 00100,
NA IRODi, KEr^YA
TEL: 2719231 FM : 2712694

PRINT ED A ND PUBL ISHED BY T HE GOV ERNM ENT PRI NTER, NA IROBI

 51

T H E NA R COT I CS, DRUGS A ND PSY CH OT ROPI C

SUBST A NCES (CONT ROL ) (A M ENDM ENT ) A CT
N o . 4 of 2 0 2 2

Date of Assent: 24th Febr uary, 2022

Date of Commencement: 21st Mar ch, 2022
A N A CT of Par li am ent to amend the Nar cotics, Dr ugs
and Psychotr opi c Substances (Contr ol) A ct and for
connected pur poses
ENA CT ED by the Parliament of Kenya, as f oll ows—
1. Thi s A ct may be cited as the Narcotics, Drugs and Sh or t t i t l e.

Psychotropic Substances (Control) (A mendment) A ct,

2022 .
A m en d m ent of
2. Secti on 2 of the N arcotics, Drugs and Psychotropic sec ti o n 2 of N o .4
Substances (Control) A ct, (i n this A ct referred to as th e o f 199 4 .

“ principal A ct” ) i s amended —

(a) by i nserting the following new def initions in their
proper alphabetical sequence—
“ Cabinet Secretary” means the Cabinet Secretary
f or the time being responsible f or matters rel ating t o
i nt er i o r ;

“ cl andestine l aboratory” means —

(a) the purchase or procurement of chemicals,
supplies, equipment, or laboratory location
for the illegal manufacture of specified
control l ed substances;
(b) the transportation or arranging for the
transportation of chemicals, supplies, or
equipment for the illegal manufacture of
controll ed substances;
(c) the setting up of equipment or suppl ies in
preparation for the illegal manufacture of
specif ied controlled substances;
(d) the activity of compounding, synthesising,
concentrating, purification, separating,
extracting, or other physical or chemical
processing of a substance, including a
controlled substance precursor, or the
 52

N o. 4 Narcotics, Drugs and Psychotropic Substances (Control) (Amendment) 2022

packaging, repackaging, labelling, or

relabelling of a container holding a
substance that is a product of any of these
acti vi ti es, w hen the substance i s to be used
for the illegal manufacture of specified
controll ed substances;
(e) the illegal manufacture of specified
controll ed substances; or
(f) the distribution, diversion or disposal of
chemicals, equipment, supplies, or products
used in or produced by the illegal
manufacture of specified controlled
su b st an ces,

“law enforcement officer” means any person

who is responsible for the prevention, investigation,
apprehension or deterrence of persons suspected to
have committed an offence under this Act;
“market value” means value of narcotic drug,
psychotropic substance, prohibited plant, precursor
or chemicals;
“ precursor chemical s” means a substance
frequently used i n the illicit manuf acture of narcotic
drugs or psychotropic substances as specified in the
Fourth Schedul e to this A ct;
“public officer” means an officer, employee
or member of a public body, including one that is
unpaid, part-time or temporary;
(b) by inserting the following subsection immediately
after subsection ( 1)—
(2) Despi te subsection ( 1), references in thi s A ct
to the expression “Minister” shall be construed to
mean “ Cabinet Secretary.
3. Section 3 of the principal Act is amended by A m en d m ent of

deleting subsection (2) and substituting therefor the

seet i o n 3 of N o .4
of 19 94 .
following new subsection—
(2) A person guilty of an offence under subsection ( 1)
sh al l b e l i ab l e —

(a) in respect of cannabis, where the person satisfies

the court that the cannabis was intended solely
for his own consumption, to imprisonment to a
 53

2 0 22 Nar cotics, D r ugs and Psychotrop ic Substances (Control) (Amendment) No. 4

term of not more than five years or to a fine of

not more than one hundred thousand shillings;
(b) in respect of a narcotic drug or psychotropic
substance, other than cannabis, where a person is
in possession of less than one gram, to a f ine of
not less than f ive million shillings, or to
impri sonment to a term of not less than f ive
years, or to both such fine and imprisonment; and
(c) to, in addition to the sentences in paragraph (a)
and (b) respectively, commi ttal to appropriate
court appointed treatment programme or to
voluntary submi ssion to a rehabilitation
programme for a period not l ess than six months,
w h er e th e c o u r t d eem s f i t .

4. The principal Act is amended by deleting section 4 A m en d m ent o f

sect i o n 4 of N o .4
and substituting therefor the following new section— o f 19 94 .

Penalty for trafficki ng 4. A ny person who trafficks in, or

in nar cotic drugs, etc.
has in hi s or her possession any
narcotic drug or psychotropic
substance or any substance
represented or held out by him or
her to be a narcotic drug or
psychotropi c substance, shall be
guilty of an offence and li abl e—

(a) in respect of any narcotic drug

or psychotropic substance—

(i) where the person is in

possession of between 1—
100 grams, to a f ine of not
less than thirty million
shillings o r to

imprisonment for a term of

thirty years, or to both such
fine and imprisonment;

(ii) where the person i s in

possession of more than
100 grams, to a f ine of not
l ess than f ifty mil lion
shilling or three times the
m ar k e t v alu e of th e
 54

No. 4 Narcotics, Drugs and Psychotropic Substances (Control) (Amendment) 2022

n ar c o t i c drug o r

psychotropic substance,
whichever is greater, or to
imprisonment for a term of
f ifty years, or to both such
fine and imprisonment,

(b) in respect of precursor

chemicals or any substance,
other than a narcotic drug or
psychotropic substance, which
he or she represents or holds
ou t to be a n arc ot i c or
psychotropic substance,—

(i) where the person is in

possession of 50 mg or
m ore, to a f i ne of not l ess
than twenty million
shillings or imprisonment
for life; and

(ii) where a person is in

possession of 50 mg or
l ess, to a f ine of not l ess
than ten million shillings,
or to impri sonment to a
ter m of n o t l ess th an ten
y ears, or to both such f i ne
and imprisonment.

5. The principal Act is amended by inserting the I n sert io n o f

following new sections immediately after section 4—

sec t io n s 4 A an d
4 B i nt o N o . 4 o f
19 94 .
Penalty relating to
precursor chemical s. 4A . (1) A person who—
(a) manufactures or is in possession of
a substance ref erred to i n the Fourth
Schedule for the purpose of
production of any narcotic drug or
psychotropic substances; or

(b) transports such a substance or

supplies it to another person,
knowing or having reasonable
grounds to suspect that the
 55

2022 Nar cotics, D r ugs and Psychotropic Substances (Control) (Amendment) j^o. 4

su b st an ce i s to b e u sed i n or f or th e
unl awful production of a narcotic
drug,

is guilty of an offence and is li able to,

upon conviction, to a fine of not less
than fifty million shillings and to
imprisonment for a term of not l ess
than twenty years.

(2) The Cabinet Secretary responsible

f or internal security may make regulations
f or can ying out the purposes of this section
and in particul ar —

(a) f or imposing requirements as to the

d o cu m en t at i o n of t r a n sa c t i o n s
involving substances referred to in
the Fourth Schedul e;

(b) adding or del eting substances in the

F ou r th Sch edul e as is d eem ed
n ec essary ;

(c) keeping of records and furni shing of

inf ormation on substances as l isted;

(d) any other matter that may be

required to be prescribed.
Conspiracy l o
c o m m i t o f f en ces
4B . ( 1) A person who, being outside
un d er th i s A c t . K enya, conspires with a person who is in
K enya to commit an offence under this A ct
in any pl ace outside Kenya being an act
which if committed in Kenya, would
c o n st i tu t e an o f f en ce u n der th i s A ct sh al l b e
deemed to have conspired to commit that act
in K enya.
(2) A person who, being in K enya,
conspires with a person who is outside
K enya to commit an offence under this A ct
in Kenya shall be deemed to have conspired
in K enya to carry out that act.

(3) A person who, being outsi de K enya,

conspires with a person who is outside
 56

N o. 4 Nar cotics, D r ugs and Psychotr op ic Substances (Contr ol) (Amendment) 2022

K enya to carry out an offence under thi s A ct

in Kenya shall be deemed to have conspired
i n Kenya to do that act.

(4) A person who being in Kenya,

conspires with another person who is also in
Kenya to commit an offence under this A ct
in K enya or outside K enya commits an
o f f en ce.

(5) A person who conspires to commit

an of f ence under thi s secti on com m its an
offence and i s li able, on conviction, to a f ine
of not less than one hundred m i l l ion
shillings and to imprisonment for life.
6. Section 5 of the principal Act is amended by A m end m ent of
sec t i on 5 o f N o .5
deleting subsection (1) and substituting therefor the o f 19 94 .
foll owing new subsection —

(1) Subj ect to this Act, any person who—

(a) smokes, inhales, sniffs or otherwise uses any
narcotic drug or psychotropic substance;
(b) without lawful and reasonable excuse, is found
in any house, room or place to which persons
resort for the purpose of smoking, inhaling,
sniffing or otherwise using any narcotic drug or
psychotropic substance;
(c) being the owner, occupier or concerned in the
management of any premises, permits the
premises to be used for the purpose of the
preparation of opium for smoking or sale, or the
smoking, inhaling, sniffing or otherwise using
any narcotic drug or psychotropic substance,
commits an of fence and shall on conviction, be
l i abl e to a f ine of not l ess than—

(i) two hundred and fifty thousand shillings or a

term of imprisonment of not less than f ive
years or to both such fine and imprisonment if
the offence relates to paragraphs (a) or (b); or
(ii) twenty million shillings or a term of
imprisonment of not less than ten years or to
 57

2022 Nar cotics, D r ugs and Psychotrop ic Substances (Contr ol) (Amendment) ^ o. 4

both such fi ne and imprisonment, if the offence

relates to paragraph (c).

7. The principal A ct is amended by inserting the insertiono f

^ ■ j - 1 JT,. ^ c sections5A and 5B
f oll owing new sections immediately af ter section 5— i nt o n o 4 o f 1994

r/Tb^anowner owner, occupicr Of person

ocLpil r^orTpTrson conccmed witli the management of an y
co n ce r n e d w it h t h e
premi ses, shall keep a register in hi s
management of a
premise. premi ses, and shall enter or cause to be
entered in the regi ster the name and address
of every tenant and occupier who occupies
the premises, and such other particul ars as
may be prescribed.

(2) A n owner, occupier or person

concerned with the management of any
premises, shall enter or cause to be entered
regularly in a book kept for the purpose, all
such particul ars, other than particul ars
prescribed in respect of the regi ster required
under subsection ( 1) to be kept, as may be
prescribed.

(3) A person who fails to comply with

thi s secti on, or w ho makes or causes or
permits to be made in any register or book
required in this section to be kept, any entry
w h i ch h e k n o w s or h as reason t o b el i ev e t o
be f al se, shall be guilty of an offence and i s
l i ab l e to a f i n e o f n o t l ess t h an o n e m i l l i o n
shillings or to a term of imprisonment of not
less than two years, or both such f ine and
imprisonment.
Of fences relating to
operation of
5B( 1) Subj ect to thi s A ct, any person
cl and est i ne w h o-
laboratory .
(a) operates a cl andestine laboratory ; or
(b) being the owner, occupier or person
concerned with the management of
any premises, permits the premises to
be used for the purpose of operating
 58

No. 4 Narcotics, Drugs and Psychotropic Substances (Contr ol) (Amendment) 2022

a clandestine laboratory shall be

guilty of an offence and is liable to a
fine of not less than twenty million
shillings or a term of imprisonment
of not less than twenty years, or both
such fine and imprisonment.
(2) It shall be a defence if a person who
is an owner, occupier or a person concerned
with the management of any premises,
complies with section 5A .

8. The principal Act is amended by inserting the I n ser t i on o f

sec ti o n 17 A i n to
following new section immediately after section 17— N o . 4 o f 19 94 .

Penalty for law

en f o r cem en t of f i cer s. 17A . ( 1) A law enforcement off icer or a
public officer who aids or abets any offence
under this Act including through concealing
the commission of any offence or colluding
with any person suspected of committing an
offence under this A et, commits an offence
and shall be liable upon conviction to a fine
of not less than twenty million shillings and
impri sonment for a term of not less than
tw enty y ears.

(2) Any person who, being employed

as a law enforcement officer or a puWic
officer, does or directs to be done, in abuse
of the authority of his office, any arbitrary
act prej udicial to the rights of another,
commits an offence and shall, upon
conv icti on, be li abl e to a f ine of not l ess than
three hundred thousand shillings o r

impri sonment for a term of not less than fi ve

years, or to both .

9. Section 58 of the principal Act is amended in A m en dm ent o f

subsection (2) by deleting the words “Attorney-General”

sec ti o n 5 8 o f N o .5
o f 19 94 .
and substituting therefor the words “Director of Public
Pr o secu ti o n s” .

10. Section 59 of the principal Act is amended by A m end m en t of

secti o n 5 9 o f N o .5
inserting the following new subsection immediately af t er o f 19 94 .
subsecti on (2)—
 59

2022 Nar cotics, Dr ugs and Psychotrop ic Substances (Control) (Amendment) j^o. 4

(3) The Director of Public Prosecutions, may

request f or inf ormation, evidence and particul ars,
where any person, including a foreign government,
state or organization or entity all eges or has
information that any person in Kenya has
com m itted an of f ence under thi s A ct , and shal l
upon receiving such information, evidence and
particulars carry out the same in accordance with
th e l aw .

11. The principal Act is amended by inserting the I n sert i o n o f

sections 80A , SOB
following new sections immediately after section 80— and 80 C i n to N o .
4 of 19 94 .

Pow er to intercept
c o m m u n i cat i o n and
the admissibility of
intercepted
c o m m u n i c ati o n .
80A . ( 1) Subj ect to subsection (2), a
police officer above the rank of Chief
Inspector of Police may, for the purpose of
obtaining evi dence of the commission of an
offence under this Act, apply ex parte, to the
High Court for an interception of
c o m m u n i c at i o n s o r d er .

(2) A pol ice of f icer shall not make an

application under subsection ( 1) unless he
has appl ied for and obtained the written
c on sen t of th e D ir ecto r of Pu bl i c
P r o se c u t i o n s.

(3) The Court shall, in determining an

application under subsection ( 1), make an
o r d er—

(a) requiring a c o m m u n i c at i o n s
service provider to intercept and
retain specified communication of
a specifi ed description received or
transm i tted, or ab o u t to be
received or transmitted by that
communications service provider ;
o r

(b) authori zing the police off icer to

enter any premises and to install on
such premises, any device for the
interception and retenti on of a
specified communication and to
r e m o v e an d r e t ai n su c h d e v i c e .

No. 4 Nar cotics, Dr ugs and Psychotr op ic Substances (Contr ol) (Amendment)
D uty to disclose
information relating
to o f f enc es
co m m i tt ed un d er th i s
A ct, etc.
60
2022
(4) The Court shall not make an order
under subsection (3) unless it is sati sfied that
the i nf orm ation to be obtained rel ates to—
(a) the commi ssion of an off ence under
thi s A ct ; or
(b) the whereabouts of the person
suspected by the police officer to
h av e c o m m i t ted th e o f f en ce .
(5) Any inf ormation contained in a
c o m m u n i c at i o n —
(a) intercepted and retained pursuant to
an order under subsection (3); or
(b) intercepted and retained in a foreign
st at e i n acc o r d ance w i th th e l aw o f
that foreign state and certified by a
Court of that foreign state to have
been so intercepted and retained,
shall, subj ect to the provisions of
any other written law, be admi ssibl e
in proceedings for an offence under thi s
A ct.
(6) A police officer who intercepts
communication other than is provided fo r
under thi s secti on comm i ts an of f ence
and shall on convi cti on be l i abl e to
imprisonment for a term not exceeding ten
years or to a f ine of not less than ten m i l l i on
shillings or to both.
SOB. (1) A person who has any
i nf orm ati on that i s rel evant i n—
(a) preventing the commission of an
offence under this A ct; or
(b) securing the arrest or prosecution of
another person f or an off ence
committed under thi s A ct,
shal l di sclose the i nf orm ati on to a
police officer.
 61

20 22 Nar cotics, D r ugs and Psychotrop ic Substances (Contr ol) (Amendment) 4

(2) A person who conceal s or f ail s to
d i scl o se i n f o rm ati o n th at i s r el ev an t i n th e
investigation or prosecution of another
person for an offence committed under this
A ct , com m its an of f ence.

(3) A person who contravenes

subsection ( 1) commits an offence and is
l i ab l e o n co n v i ct i o n t o a f i n e of n o t l ess th an
one million or imprisonment of a term of not
less than f ive years, or both.
(4) No civil or criminal proceedings
shall l ie against any person for disclosing
any inf ormation, in good faith, under
subsection ( 1).
C ol l ec t i o n o f
i nf o rm at io n .
80C . A person who, i n committing or
in instigating, preparing or f acilitating the
comm i ssi on of an of f ence under thi s A ct ,
hol ds, collects, generates or transmits
i n f o r m ati o n f or th e u se i n th e c o m m i ssi o n o f
an of f ence under thi s A ct, com m i ts an
of f ence, and i s l i abl e, on conv icti on, to a
f i n e of n o t l ess th an f i v e m i l l i on or to
imprisonment of a term of not l ess than f ive
years, or both.
A m en d m en t o f
12. The principal A ct is amended in secti on 81 by sec t io n 8 1 o f N o . 5
deleting paragraph (b). o f 19 94 .

13. Section 85 of the principal Act is amended — A m en d m en t o f

sec t io n 85 o f N o . 5
o f 19 94 .
(a) in subsecti on ( 1) by del eting the words “ not
exceeding two hundred and f ifty thousand shill ings
or imprisonment for a term not exceeding five
years or to both such fine and imprisonment” and
substituting therefor the words “ not less than f ive
million shillings and impri sonment for a term of
not less than f ive years” ,
(b) in subsection (2) by deleting the words o n e
hundred thousand shill ings or to imprisonment for
three years and in the case of a continuing offence
to a further penalty of twenty thousand shillings”
and substituting theref or the words “ not less than
 62

N o. 4 Narcotics, Drugs and Psychotropic Substances (Control) (Amendment) 2022

two million shillings and imprisonment for a term

of not less than three years and in the case of a
continuing of fence to a further penalty of one
hundred thousand shillings” .
14. The principal Act is amended by inserting the I n sert i on o f n ew
sec t i on 85 A in to
following new section immediately after section 85 —

N o .5 o f 1994 .

D isquali fi cation if
c o n v i cted o f an
o f f en ce u nd er th i s
A ct.
85A . A person who is convicted of
an of f ence under thi s A ct shal l be
disqualified from being elected or
appointed as a public officer for thirty
years after the conviction.

15. The principal Act is amended by inserting the A m en d m en t o f th e

F ir st Sc h edu l e t o
w ord “ tram adol ” in the Fi rst Schedul e. N o . 4 o f 199 4 .

16. The principal Act is amended by inserting the A m end m en t o f th e

Sec on d Sch edu l e t o
w ord “ k etam i ne” in the Second Schedul e. N o . 4 o f 19 94 .

17. The principal Act is amended by inserting the I n sert i on o f a new

Sc h edu l e in t o N o . 4
following new Schedule immediately after the Third o f 19 94 .
Sch ed u l e —

F O U R T H SCH E D U L E
(section 2)
Ephedrine
Ergometrine
Ergotamine
L ysergicacid
l-phenyl-2-propanone
Pseudoephedrine
Acetic anhydride
A ceto n e
A n thr an i l i c aci d
Ethyl ether
Phenyl acetic acid
Piperidine
The salts of the substances listed in this Schedule w h en ev er th e
existence of such salts is possible.