LAWS OF KENYA

PROTECTION OF AIRCRAFT ACT

CHAPTER 68

Revised Edition 2012 [1982]

Published by the National Council for Law Reporting
with the Authority of the Attorney-General
www.kenyalaw.org
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Protection of Aircraft

CHAPTER 68

PROTECTION OF AIRCRAFT ACT

ARRANGEMENT OF SECTIONS
Section
1. Short title.
2. Interpretation, etc.
3. Hijacking.
4. Offences in connection with hijacking.
5. Other offences relating to aircraft.
6. Jurisdiction of Kenya courts in certain cases.
7. Provisions as to extradition.
8. Powers of commanders.
9. Piracy.
10. Evidence taken abroad.
11. Evidence generally.
12. Director of Public Prosecutions consent required to prosecute.
13. Amendment of extradition laws.
SCHEDULE –
PROVISIONS OF GENEVA CONVENTION ON THE HIGH SEAS TO BE
TREATED AS PART OF THE LAW OF NATIONS

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CHAPER 68
PROTECTION OF AIRCRAFT ACT
[Date of assent:4th November, 1970.]
[Date of commencement:1st June, 1972.]
An Act of Parliament to give effect to the provisions of the Tokyo Convention
on offences and certain other acts committed on board aircraft, the Hague
Convention for the suppression of unlawful seizure of aircraft and the
Montreal Convention for the suppression of unlawful acts against the
safety of civil aviation; and for other matters connected therewith and
incidental thereto
[Act No. 18 of 1970, L.N. 91/1972, Act No. 11 of 1981, Act No. 12 of 2012.]

1. Short title
This Act may be cited as the Protection of Aircraft Act, 1970.
[L.N. 91/1972, Act No. 11 of 1981, s. 3.]

2. Interpretation, etc.
(1) In this Act, unless the context otherwise requires—
“aircraft” means any aircraft, whether or not a Kenya-controlled aircraft,
other than—
(a) a military aircraft; or
(b) an aircraft which, not being a military aircraft, belongs to, or is
exclusively employed in the service of, the Government;
“commander”, in relation to an aircraft, means the member of the crew
designated as commander of that aircraft by the operator thereof, or, failing
such a member, the person who is for the time being the pilot in command of
the aircraft;
“Convention country” means a country in which the Tokyo, Montreal and
Hague Conventions are for the time being in force;
“Hague Convention” means the Convention for the Suppression of
Unlawful Seizure of Aircraft done at the Hague on 16th December, 1970;
“Kenya-controlled aircraft” means an aircraft—
(a) which is for the time being registered in Kenya; or
(b) which is not for the time being registered in any country but of
which either the operator of the aircraft or each person entitled as
owner to any legal or beneficial interest in it satisfies the following
requirements—
(i) that he is a person qualified to be the owner of a legal or
beneficial interest in an aircraft registered in Kenya; and
(ii) that he resides or has his principal place of business in
Kenya; or

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(c) which, being for the time being registered in some other country, is
for time being chartered by demise to a person who, or to persons
each of whom, satisfies the said requirements;
“military aircraft” means—
(a) an aircraft of the naval, military or air forces of any country; or
(b) any other aircraft which is treated as a military aircraft under any
written law for the time being in force relating to civil aviation;
“Minister”deleted by Act No. 11 of 1981, s.4;
“Montreal Convention” means the Convention for the Suppression of
Unlawful Acts Against the Safety of Civil Aviation done at Montreal on the 23rd
September, 1971;
“operator”, in relation to any aircraft at any particular time, means the
person who at that time has the management of that aircraft;
“pilot in command”, in relation to an aircraft, means a person who, for the
time being, is in charge of the piloting of that aircraft, without being under the
direction of any other pilot in the aircraft;
“Tokyo Convention” means the Convention on Offences and certain other
Acts committed on board Aircraft signed at Tokyo on 14th September, 1963.
(2) For the purposes of this Act—
(a) the period during which an aircraft is in flight shall be deemed to
include any period from the moment when all its external doors are
closed following embarkation until the moment when any of the doors
is opened for disembarkation, and, in the case of a forced landing,
any period until the competent authorities take over responsibilities
for the aircraft and for persons and property on board;
(b) the period during which an aircraft is in service shall be deemed to
include the period from the beginning of the preflight preparation of the
aircraft by ground personnel or by the crew for a specific flight until 24
hours after any landing and the period of service shall, in any event,
extend for the entire period which the aircraft is in flight as defined in
paragraph (a).
(3) In this Act, unless the context otherwise requires, any reference to a country
or the territorial limits thereof shall be construed as including a reference to the
territorial waters, if any, of that country.
(4) If the Minister is satisfied that the requirements of Article 18 of the Tokyo
Convention, Article 5 of the Hague Convention and Article 9 of the Montreal
Convention have been satisfied (which Articles make provision as to the country
which is to be treated as the country of registration of certain aircraft operated by
joint air transport organizations or international operating agencies established by
two or more Convention countries) the Minister may, by order, provide that, for the
purposes of this Act, such aircraft as may be specified in the order shall be treated
as registered in such Convention country as may be so specified.

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(5) Notwithstanding the definition of “aircraft” in subsection (1) of his section,

the Minister may, by order, provide that any of the provisions of this Act shall apply,
with or without modifications, to aircraft such as are mentioned in paragraph (b)
of that definition.
[Act No. 11 of 1981, s. 4.]

3. Hijacking
Any person who, on board an aircraft in flight, whether in Kenya or elsewhere,
unlawfully, by force or threat thereof, or by any other form of intimidation, seizes
or exercises control of that aircraft shall be guilty of the offence of hijacking and
liable to imprisonment for life.
[Act No. 11 of 1981, s. 5.]

4. Offences in connection with hijacking

(1) Any person who, on board an aircraft in flight outside Kenya, does or omits
anything which, if done or omitted by that person in Kenya would be an offence,
commits that offence if the act or omission occurred in connection with the offence
of hijacking.
(2) Without prejudice to the generality of subsection (1), an act or omission by
a person shall be deemed to occur in connection with hijacking if it was done or
omitted with intent—
(a) to commit or facilitate the commission of the offence of hijacking;
(b) to avoid the detection of himself or of any other person in the
commission of the offence of hijacking;
(c) to avoid the arrest or facilitate the flight of himself or of any other
person after commission of the offence of hijacking.
[Act No. 11 of 1981, s. 5.]

5. Other offences relating to aircraft

Any person who, whether in or outside Kenya, wilfully and unlawfully—
(a) on board an aircraft in flight, commits an assault which is likely to
endanger the safety of the aircraft;
(b) destroys an aircraft in service;
(c) causes damage to an aircraft in service which renders the aircraft
incapable of flight or which is likely to endanger the safety of the
aircraft in flight;
(d) places or causes to be placed on an aircraft in service anything which
is likely to destroy the aircraft, or to cause damage to the aircraft which
will render it incapable of flight, or which is likely to endanger the safety
of the aircraft in flight;
(e) endangers the safety of an aircraft in flight by communicating
to another person information which the person supplying the
information knows to be false;
(f) destroys, damages or interferes with the operation of any air
navigation facility used in international air navigation where the
destruction, damage or interference is likely to endanger the safety of
an aircraft in flight,

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shall be guilty of an offence and liable to imprisonment for a term not exceeding
fourteen years.
[Act No. 11 of 1981, s. 5.]

6. Jurisdiction of Kenya courts in certain cases

(1) Where—
(a) in the case of an offence under section 3 of 4, the place of take-off
and the place of actual landing of the aircraft;
(b) in the case of an offence under paragraphs (a) to (e) inclusive of
section 5, the place of take-off and the place of actual or intended
landing of the aircraft,
are in the territory of the country in which the aircraft is registered, or, in the case
of an aircraft which is subject to joint or international registration, in the territory of
one of the countries having an interest in the aircraft, then a court in Kenya shall
have jurisdiction over the matter only where—
(i) the aircraft is a Kenya-controlled aircraft; or
(ii) the alleged offender is a Kenya citizen or a person ordinarily resident
in Kenya; or
(iii) the offence occurred in Kenya; or
(iv) the alleged offender is present in Kenya.
(2) In any case where a court in Kenya has jurisdiction under this Act, the
offence shall be deemed to have been committed where the alleged offender may
for the time being be.
[Act No. 11 of 1981, s. 5.]

7. Provisions as to extradition
(1) For the purposes of the application of the extradition laws to crimes
committed on board an aircraft—
(a) any aircraft registered in a Convention country shall, at any time while
that aircraft is in flight or in service, be deemed to be within the
jurisdiction of that country, whether or not it is for the time being also
within the jurisdiction of some other country;
(b) no offence which may, or does, jeopardize the safety of an aircraft,
or of any person or property on board an aircraft, in flight shall be
regarded as an offence of a political nature irrespective of the motive
or alleged motive for such offence.
(2) In this section, “the extradition laws” means the Extradition (Contiguous
and Foreign Countries) Act (Cap. 76) and the Extradition (Commonwealth
Countries) Act (Cap. 77).
[Act No. 11 of 1981, s. 6, s. 7.]

8. Powers of commanders
(1) The provisions of subsections (2) to (5) of this edition shall have effect for
the purposes of any proceedings before any court in Kenya.

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(2) If the commander of an aircraft in flight, wherever that aircraft may be, has
reasonable grounds to believe in respect of any person on board the aircraft—
(a) that the person in question has done or is about to do any act on the
aircraft while it is in flight which jeopardizes or may jeopardize—
(i) the safety of the aircraft or of persons or property on board the
aircraft; or
(ii) good order and discipline on board the aircraft; or
(b) that the person in question has done, on board the aircraft while in
flight, any act which, in the opinion of the commander, is a serious
offence under any law in force in the country in which the aircraft is
registered,
then, subject to subsection (4) of this section, the commander may take with
respect to that person such reasonable measures, including restraint of his person,
as may be necessary—
(i) to protect the safety of the aircraft or of persons or property on board
the aircraft; or
(ii) to maintain good order or discipline on board the aircraft; or
(iii) to enable the commander to disembark or deliver that person in
accordance with subsection (5)of this section,
and for the purposes of paragraph (b) of this subsection any Kenya-controlled
aircraft shall be deemed to be registered in Kenya whether or not it is in fact so
registered and whether or not it is in fact registered in some other country.
(3) Any member of the crew of an aircraft and any other person on board
the aircraft may, at the request or with the authority of the commander of the
aircraft, and any such member shall if so required by the commander, render any
assistance in restraining any person whom the commander is entitled to restrain
under subsection (2) of this section, and at any time when the aircraft is in flight
any such member or other person may, without obtaining the authority of the
commander, take with respect to any person on board the aircraft any measures
mentioned in the said subsection which he has reasonable grounds to believe are
necessary to protect the safety of the aircraft or of persons or property on board
the aircraft.
(4) Any restraint imposed on any person on board an aircraft under the powers
conferred by this section shall not be continued after the time when the aircraft
first thereafter ceases to be in flight unless before, or as soon as is reasonably
practicable after that time the commander of the aircraft causes notification of
the fact that a person on board the aircraft is under restraint, and of the reasons
therefor, to be sent to the appropriate authority of the country in which the aircraft
so ceases to be in flight, but subject to such notification such restraint may be
continued after that time—
(a) for any period (including the period of any further flight) between that
time and the first occasion thereafter on which the commander is able
with any requisite consent of the appropriate authorities to disembark
or deliver the person under restraint in accordance with subsection
(5) of this section; or
(b) if the person under restraint agrees to continue his journey under
restraint on board that aircraft.

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(5) The commander of an aircraft—

(a) if in the case of any person on board the aircraft he has reasonable
grounds—
(i) to believe as mentioned in paragraph (a) of subsection (2) of
this section; and
(ii) to believe that it is necessary so to do in order to protect the
safety of the aircraft or of persons or property on board the
aircraft or to maintain good order and discipline on board the
aircraft,
he may disembark that person in any country in which that aircraft may be; and
(b) in the case of any person on board the aircraft he has reasonable
grounds to believe as mentioned in paragraph (b) of subsection (2) of
this section, may deliver that person—
(i) in Kenya, to a police officer or immigration officer; or
(ii) in any other country which is a Convention country, to an officer
having functions corresponding to the functions in Kenya either
of a police officer or of an immigration officer.
(6) The commander of an aircraft—
(a) if he disembarks any person in pursuance of paragraph (a) of
subsection (5) of this section, in the case of a Kenya-controlled
aircraft, in any country or, in the case of any other aircraft, in Kenya,
shall report the fact of, and the reasons for, that disembarkation to—
(i) an appropriate authority in the country of disembarkation; and
(ii) the appropriate diplomatic or consular office of the country of
nationality of that person;
(b) if he intends to deliver any person in accordance with paragraph (b)
of subsection (5) of this section in Kenya or, in the case of a Kenya-
controlled aircraft, in any other country which is a Convention country,
shall, before or as soon as reasonably practicable after landing, give
notice of his intention and of the reasons therefor—
(i) where the country in question is Kenya, to a police officer or an
immigration officer or, in the case of any other country, to an
officer having functions corresponding to the functions in Kenya
of a police officer or of an immigration officer; and
(ii) in either case to the appropriate diplomatic or consular office of
the country of nationality of that person,
and any commander of an aircraft who without reasonable cause fails to comply
with the requirements of this subsection shall be guilty of an offence and liable to
a fine not exceeding two thousand shillings.
[Act No. 11 of 1981, s. 6.]

9. Piracy
For the avoidance of doubt, it is hereby declared that for the purposes of any
proceedings before a court in Kenya in respect of piracy, the provisions set out in
the Schedule to this Act of the Convention on the High Seas signed at Geneva on
29th April, 1958, shall be treated as constituting part of the law of nations, and any

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such court having jurisdiction in respect of piracy committed on the high seas shall
have jurisdiction in respect of piracy committed by or against an aircraft wherever
that piracy is committed.
10. Evidence taken abroad
(1) Where in any proceedings for an offence committed on board an aircraft
the testimony of any person is required, and the court is satisfied that such person
cannot be found in Kenya, there shall be admissible in evidence before that court
any deposition relating to the subject matter of those proceedings previously made
on oath by that person outside Kenya which was so made—
(a) in the presence of the person charged with the offence; and
(b) before a judge or magistrate of a country of which section 95 of the
Constitution for the time being applies or before a consular officer of
the Government.
(2) Any deposition mentioned in subsection (1) of this section shall be
authenticated by the signature of the judge, magistrate or consular officer before
whom it was made, who shall certify that the person charged with the offence was
present at the taking of the deposition.
(3) It shall not be necessary in any proceedings to prove the signature or official
character of the person appearing to have authenticated a deposition or to have
given a certificate under this section, and the certificate shall, unless the contrary
is proved, be sufficient evidence in any proceedings that the person charged with
the offence was present at the making of the deposition.
(4) If a complaint is made to a consular officer of the Government that any
offence has been committed on board a Kenya-controlled aircraft while in flight
elsewhere than in or over Kenya, that officer may inquire into the case upon oath.
(5) In this section—
“deposition” includes an affidavit, affirmation or statement made upon oath;
and
“oath” includes an affirmation or declaration,
and nothing in this section shall prejudice the admission as evidence of any
deposition which is admissible in evidence apart from this section.
[Act No. 11 of 1981, s. 6.]

11. Evidence generally

(1) A notice by the Minister in the Gazette that any country specified in the
notice is a Convention country shall, while such notice is in force, be conclusive
evidence that the country is a Convention country.
(2) A certificate, purporting to be signed by the Minister, that an aircraft is or
is not a military aircraft for the purposes of this Act shall be conclusive evidence
of the fact certified.
(3) In any legal proceedings, a document purporting to be certified by such
person or authority as the Minister may, by regulations under this section, designate
for the purpose as being, or being a true copy of, or of part of, a document issued
or record kept in pursuance of any law relating to civil aviation shall be evidence
of the matters appearing from that document.
[Act No. 11 of 1981, s. 6.]

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12. Director of Public Prosecutions consent required to prosecute

(1) No prosecution for an offence under section 3, 4 or 5 shall be instituted
without the written consent of the Director of Public Prosecutions.
(2) Notwithstanding the provisions of subsection (1), a person may be arrested
for, and charged with, an offence under section 3, 4 or 5, and may be remanded
in custody or on bail.
[Act No. 11 of 1981, s. 6, s. 9,]

13. Amendment of extradition laws

(1) The Schedule to the Extradition (Contiguous and Foreign Countries) Act
(Cap. 76) is hereby amended by the addition to the section entitled “Piracy and
Similar Offences” of the following—
Jeopardizing the safety of aircraft in flight or of the persons or property on board
such an aircraft.
(2) The Schedule to the Extradition (Commonwealth Countries) Act (Cap. 77) is
hereby amended by deletion of item 27 and the substitution therefor of the following
—
27. Revolt against the master of a ship or the commander of an aircraft, or
jeopardizing the safety of aircraft in flight or of the persons or property
on board such an aircraft.
[Act No. 11 of 1981, s. 6, s. 9, Act No. 12 of 2012, Sch.]

SCHEDULE
[Section 9.]

PROVISIONS OF GENEVA CONVENTION ON THE HIGH

SEAS TO BE TREATED AS PART OF THE LAW OF NATIONS
Article 15
Piracy consists of any of the following acts—
(1) Any illegal acts of violence, detention or any act of depredation, committed
for private ends by the crew or the passengers of a private ship or a private aircraft,
and directed—
(a) on the high seas, against another ship or aircraft, or against persons
or property on board such ship or aircraft;
(b) against a ship, aircraft, persons or property in a place outside the
jurisdiction of any State.
(2) Any act of voluntary participation in the operation of a ship or of an aircraft
with knowledge of facts making it a pirate ship or aircraft.
(3) Any act of inciting or of intentionally facilitating an act described in
subparagraph (1) or subparagraph (2) of this article.

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Article 16
The acts of piracy, as defined in article 15, committed by a warship, government
ship or government aircraft whose crew has mutinied and taken control of the ship
or aircraft are assimilated to acts committed by a private ship.
Article 17
A ship or aircraft is considered a pirate ship or aircraft if it is intended by the
persons in dominant control to be used for the purpose of committing one of the
acts referred to in article 15. The same applies if the ship or aircraft has been used
to commit any such act, so long as it remains under the control of the persons
guilty of that act.

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