CHAPTER 7:05
PREVENTION OF DOMESTIC VIOLENCE ARRANGEMENT OF SECTIONS

ARRANGEMENT OF SECTIONS

   SECTION

PART I
PRELIMINARY

   1.   Short title

   2.   Interpretation

   3.   Purpose of Act

   4.   Persons who may apply for orders

PART II
PROTECTION ORDERS

   5.   Application for a protection order

   6.   Grant of a protection order on an ex parte application

   7.   Grant of a protection order

   8.   Court may make a direction for alternative dispute resolution

   9.   Existence of other proceedings

   10.   Variation or discharge of a protection order

PART III
OCCUPATION ORDERS

   11.   Application for an occupation order

   12.   Grant of an occupation order on an ex parte application

   13.   Effect of an occupation order

   14.   Variation or discharge of an occupation order

PART IV
TENANCY ORDERS

   15.   Application for a tenancy order

   16.   Grant of a tenancy order on an ex parte application

   17.   Effect of a tenancy order

   18.   Power to discharge a tenancy order and revesting of tenancy

PART V
PROVISIONS RELATING TO OCCUPATION ORDERS AND TENANCY ORDERS

   19.   Procedure relating to occupation orders and tenancy orders

   20.   Ancillary orders respecting furniture, etc.

PART VI
INTERIM ORDERS

   21.   Interim orders

PART VII
PROCEDURES IN RESPECT OF APPLICATIONS FOR ORDERS

   22.   Date of hearing

   23.   Notice of proceedings

   24.   Absence of respondent

   25.   Absence of applicant

   26.   Explanation of orders

   27.   Service of orders

   28.   Service, other than personal service

   29.   Respondent to have notice

PART VIII
ENFORCEMENT OF ORDERS

   30.   Breach of orders

PART IX
DESIGNATION, DUTIES AND POWERS OF ENFORCEMENT OFFICERS

   31.   Designation of enforcement officers

   32.   Duties of enforcement officers

   33.   Powers of enforcement officers

PART X
POWERS AND DUTIES OF POLICE OFFICERS

   34.   Duties of police officers

   35.   Issue of warrant

   36.   Police powers of entry without warrant

   37.   Duty of police officers to assist victims

   38.   Powers of arrest where order is in force

   39.   Existing criminal law to apply

   40.   Refractory witnesses

   41.   Granting of bail

PART XI
MISCELLANEOUS

   42.   Duty to report domestic violence

   43.   Service providers to assist

   44.   Protection of authorized persons

   45.   Jurisdiction

   46.   Single act of condonation

   47.   Conduct of proceedings

   48.   Evidence

   49.   Standard of proof

   50.   Restriction of publication of reports of proceedings

   51.   Order by consent

   52.   Counselling

   53.   Appeals

   54.   Protection of mortgage

   55.   Rules of court

   56.   Regulations

      Schedule

5 of 2006
G.N. 9/2007

An Act to make provision for the prevention of domestic violence, for the protection of persons affected by domestic violence; and for matters connected therewith

[29TH DECEMBER 2006]

PART I
PRELIMINARY

1.   Short title

   This Act may be cited as the Prevention of Domestic Violence Act.

2.   Interpretation

   In this Act, unless the context otherwise requires—

   “applicant” means a person who applies, or on whose behalf an application is made, for an order pursuant to this Act;

   “child” means a person under the age of eighteen years who ordinarily or periodically resides with the applicant, whether or not the child is a child of the applicant and the respondent or either of them, and includes an adopted child, a stepchild, or a child who is treated as a child of the family but does not include a person who is, or has been, married;

   “court” means a court which, in accordance with section 45, has competent jurisdiction;

   “dependant” means a person over the age of eighteen years, living within the household, who by reason of age, physical or mental disability or infirmity is reliant on either the applicant or respondent for his or her welfare;

   “domestic relationship”, in relation to domestic violence, means the relationship between persons who are family members and share a household residence or are dependent on each other socially or financially, and includes the relationship where—

   (a)   the applicant and the respondent are husband and wife;

   (b)   a person has a child in common with the respondent and that person is being subjected or is likely to be subjected to domestic violence by the respondent;

   (c)   one is a parent and the other is his or her child or dependant; and

   (d)   the applicant and the respondent are or have been in a visiting relationship for a period exceeding twelve months;

   “domestic violence” means any criminal offence arising out of physical, sexual, emotional or psychological, social, economic or financial abuse committed by a person against another person within adomestic relationship;

   “economic abuse” means the denying of a person the liberty to undertake any lawful income generating activity or access economic resources, and includes refusal to provide basic household necessities, withholding that person’s income or salary and denying that person the opportunity to seek employment;

   “emergency monetary relief”, in relation to an interim protection order, means relief provided to the applicant to compensate for loss suffered as a result of the domestic violence, and includes medical and dental expenses, accommodation and transport expenses, household necessities and loss of earnings;

   “emotional or psychological abuse” means a pattern of behaviour of any kind, the purpose of which is to undermine the emotional or mental well being of a person, and includes—

   (a)   persistent intimidation by the use of abusive or threatening language;

   (b)   persistent following of a person from place to place;

   (c)   depriving a person of the use of his or her property;

   (d)   the watching or besetting of the place where a person resides, works, carries on business or happens to be;

   (e)   interfering with or damaging the property of a person;

   (f)   the forced confinement of a person;

   (g)   persistent telephoning of a person at his or her place of residence or work; and

   (h)   making unwelcome and repeated or intimidatory contact with a child, dependant or elderly relative of a person;

   “enforcement officer” means any officer designated as such by the Minister under section 31;

   “financial abuse” means a pattern of behaviour of a kind, the purpose of which is to exercise coercive control over, or exploit or limit a person’s access to financial resources so as to ensure financial dependence;

   “household residence” means the dwelling-house that is or was last used habitually by persons within a domestic relationship as the only principal family residence, together with any land, buildings or improvements appurtenant thereto, and wholly or mainly used for the purposes of the household;

   “interim order” means an interim occupation order, an interim protection order, or an interim tenancy order;

   “occupation order” means an order made under section 11, and includes an interim occupation order;

   “order” means an occupation order, a protection order, or a tenancy order, but does not include an interim order;

   “parent” means a person who is a parent or grandparent in relation to a child, dependant, spouse or respondent, as the case may be, by blood, marriage or adoption;

   “physical abuse” means any act or omission which causes or is intended to cause physical injury or reasonable apprehension of physical injury;

   “prescribed person”, in relation to a respondent, means a husband or wife, parent, child or dependant of the respondent;

   “protection order” means an order made under section 5 and, includes an interim protection order;

   “service provider” means any person or body of persons approved by the Minister by order published in the Gazette to provide assistance to victims of domestic violence, and includes the police, community policing forums, faith-based organizations, Government institutions, non-governmental, voluntary or charitable organizations;

   “sexual abuse” includes sexual contact of any kind that is made by force or threat and the commission of, or an attempt to commit, any of the offences under Chapter XV of the Penal Code;

   “social abuse” includes denying a person the freedom to associate freely with others with the aim of possessing that person so as to let that person become completely dependent on the abuser;

   “tenancy order” means an order made under section 15, and includes an interim tenancy order;

   “tenant”, in relation to a dwelling-house, includes any person—

   (a)   whose tenancy has expired or has been determined; and

   (b)   who is for the time being deemed under or by virtue of any written law to continue to be the tenant of the dwelling-house, and the term “tenancy” has a corresponding meaning.

3.   Purpose of Act

   The purpose of this Act is to ensure the commitment of the State to eliminate gender-based violence occurring within a domestic relationship, and to provide for effective legal remedies and other social services to persons affected by domestic violence.

4.   Persons who may apply for orders

   (1) An application for a protection order under this Act may be made by—

   (a)   a husband or wife, as the case may be, being the person against whom domestic violence has been, or is likely to be, engaged in by the respondent;

   (b)   a person who has a child in common with the respondent and that person is being subjected to or is likely to be subjected to domestic violence by the respondent;

   (c)   a parent or guardian of the child or dependant, or a person with whom the child or dependant ordinarily or periodically resides, where domestic violence involves a child or dependant;

   (d)   a dependant, where the dependant is not mentally disabled;

   (e)   a parent or sibling, by blood or marriage of the applicant or respondent, not being a member of the household;

   (f)   a police officer;

   (g)   an enforcement officer;

   (h)   a service provider approved by the Minister by order published in the Gazette .

   (2) An application for an occupation order may be made by persons described in subsection (1), except those described in paragraphs (b) and (c).

   (3) An application for a tenancy order may be made by—

   (a)   the husband or wife of the respondent; or

   (b)   in the case of a child or dependent who is subjected to domestic violence, and the husband or wife is unwilling to make an application, by a parent or guardian of that child or dependant.

PART II
PROTECTION ORDERS

5.   Application for a protection order

   An application for a protection order shall be in accordance with the form prescribed in Form 1 of the Schedule, and may pray for an order—

   (a)   prohibiting the respondent from—

      (i)   committing any further acts of domestic violence;

      (ii)   entering or remaining in the household residence of a prescribed person;

      (iii)   entering or remaining in any area specified in the order, being an area in which the household residence of a prescribed person is located;

      (iv)   entering the place of work, business or education of a prescribed person;

      (v)   entering and remaining in any place where a prescribed person happens to be;

   (b)   directing that the respondent—

      (i)   be of good behaviour;

      (ii)   returns to the applicant specified property that is in his or her possession or under his or her control;

      (iii)   pays compensation for monetary loss incurred by an applicant as a direct result of conduct that amounted to domestic violence;

      (iv)   pays monetary relief to the applicant for the benefit of the applicant and any child or dependant, where there is no existing order relating to maintenance until such time as an obligation for support is determined pursuant to any other written law;

      (v)   complies with any other condition which the court deems necessary for the effective protection of the applicant;

      (vi)   immediately vacates any place or residence for a specified period, whether or not the residence is jointly owned or leased by the respondent and the applicant, or solely owned or leased by the respondent or the applicant;

      (vii)   relinquishes to the police any firearm licence, firearm or any other weapon which he or she may have in his possession or control and which may or may not have been used in the course of domestic violence;

      (viii)   makes or continues to make payments in respect of rent or mortgage payments for premises occupied by the applicant for a reasonable period;

      (ix)   ensures that reasonable care is provided in respect of a child or dependant; or

      (x)   the applicant or both, receive professional counselling or therapy from any person or agency or from a programme approved by the Minister in writing;

   (c)   directing that the order be applied for the benefit of a child or dependant of the applicant or respondent;

   (d)   prohibiting the respondent from taking possession of damaging, converting or otherwise dealing with, property that the applicant may have an interest in, or is reasonably used by the applicant, as the case may be;

   (e)   prohibiting the respondent from molesting a prescribed person by—

      (i)   watching or besetting the household residence, or place of work, business or education of the prescribed person;

      (ii)   following or stalking the prescribed person in any place;

      (iii)   making persistent telephone calls to a prescribed person;

      (iv)   using abusive language to or behaving towards a prescribed person in any other manner which is of such nature and degree as to cause annoyance to, or result in ill-treatment of the prescribed person; or

      (v)   causing or encouraging another person to engage in conduct referred to in paragraphs (i) to (iv).

6.   Grant of a protection order on an ex parte application

   (1) A protection order may be made on an ex parte application if the court is satisfied that the delay that would be caused by proceeding on notice would or might entail—

   (a)   risk to the personal safety of a prescribed person; or

   (b)   serious injury or harm or, undue hardship.

   (2) Any protection order made on an ex parte application shall be an interim order.

   (3) Without limiting the generality of the foregoing, the court may, in determining whether to issue an interim protection order, have regard to—

   (a)   the perception of the applicant, or a child or any other person within the domestic relationship, of the nature and seriousness of the behaviour in respect of which the application is made; and

   (b)   the effect of the behaviour of the respondent on the applicant, or a child or any other person within the domestic relationship.

   (4) Where a protection order is granted on an ex parte application, the respondent may apply immediately for it to be discharged.

   (5) An interim protection order remains in force until—

   (a)   such time as the court grants a protection order under section 7; or

   (b)   the order is discharged pursuant to section 10.

7.   Grant of a protection order

   (1) On hearing an application under section 5 the Court may make a protection order in accordance with the form prescribed in Form 2 of the Schedule if it is satisfied that—

   (a)   a case for domestic violence has been made out against the respondent; and

   (b)   having regard to all the circumstances, the order is necessary for the protection of the prescribed person,

and the court may, if it thinks fit, attach a power of arrest to the protection order.

   (2) Where the court makes an order which directs the payment of compensation under section 5 (b) (iii), such compensation shall include, but not limited to—

   (a)   loss of earning;

   (b)   medical and dental expenses;

   (c)   moving and accommodation expenses;

   (d)   reasonable legal costs, including the cost of an application pursuant to this Act.

   (3) Where the Court makes an order which directs counselling under section 5 (b) (x) the order shall specify—

   (a)   that the Court receive written notification from the counsellor or therapist of sessions missed without reasonable excuse; and

   (b)   the date by which the counsellor or therapist shall submit are port to the Court in respect of the counselling or therapy, such report to include a prognosis for recovery.

   (4) The court shall have jurisdiction to award compensation not exceeding K1,000,000 and the payment of such compensation shall be received by the Court on behalf of the applicant.

   (5) Where the Court makes an order which—

   (a)   directs that the respondent vacate a household residence or any place; or

   (b)   directs the respondent to return to the applicant specified property that is in his or her possession or control,

the Court may, in that same order, if it thinks necessary and notwithstanding any other law, direct the police to remove the respondent either immediately or within a specified time from the said place or residence, or to accompany the applicant, as the case may be, either immediately or within a specified time to specified premises to supervise the removal of property belonging to the applicant and to ensure the protection of that person.

8.   Court may make a direction for alternative dispute resolution

   (1) Subject to subsection (3), at any time during the proceedings for an application for a protection order, but before the issuing of such order, the applicant or respondent may request the court to direct the suspension of the proceedings on condition that both the applicant and respondent, including any child or any other person within the domestic relationship, agree to undergo an alternative dispute resolution process with the assistance of a service provider.

   (2) Where, at the time of making the protection order, the applicant or respondent has not made a request pursuant to this section, the court shall, if it considers that it is in the best interest of the parties, inform the parties of their right to make such a request.

   (3) A request or a direction pursuant to this section shall not be made more than once in relation to the same protection order.

9.   Existence of other proceedings

   A court shall not decline to make a protection order under section 6 or 7 on the grounds only of the existence of other proceedings, including proceedings relating to custody of, or access to, a child between or relating to the parties, whether or not those proceedings relate to any other person.

10.   Variation or discharge of a protection order

   (1) The court may, on the application of any party of the proceedings, vary or discharge a protection order or, an interim protection order, as the case may be, by—

   (a)   varying or discharging any condition;

   (b)   imposing any new condition;

   (c)   making a direction pursuant to section 8; or

   (d)   varying or discharging a direction made pursuant to section 8.

   (2) On the application of the applicant, the court may, if it thinks fit, vary a protection order by directing that the protection order also apply for the benefit of a particular person within the domestic relationship.

   (3) A copy of an application made under section (1) shall be served personally on each person who was a party to the proceedings in which the protection order was made.

   (4) In determining whether to discharge a protection order the Court shall have regard to the matters referred to in section 7.

PART III
OCCUPATION ORDERS

11.   Application for an occupation order

   (1) An application may be made to the court for an occupation order granting the prescribed person or persons named in the order the right to live in the household residence, and every such application shall be made in accordance with the form prescribed in Form 5 of the Schedule.

   (2) Subject to subsection (3) and section 19, the court may, on an application under subsection (1), make an occupation order in accordance with the form prescribed in Form 6 of the Schedule granting to the prescribed person or any person named in the order for such period or periods and on such terms and subject to such conditions as the court thinks fit, the right to occupy the household residence or any other premises forming part of the household residence.

   (3) The court shall not make an order under subsection (2) unless it is satisfied that such an order—

   (a)   is necessary for the protection of a prescribed person; or

   (b)   is in the best interest of a child or dependant.

12.   Grant of an occupation order on ex parte application

   (1) An occupation order may be made on an ex parte application if the court is satisfied that—

   (a)   the respondent has used violence, against or caused physical or emotional injury to a prescribed person; and

   (b)   the delay that would be caused by proceeding on notice could or might expose the prescribed person to physical or emotional injury.

   (2) Any occupation order made on an ex parte application shall be an interim order.

   (3) Where the court grants an occupation order on an ex parte application, the court shall, at the same time, make an interim protection order unless it considers that there are special reasons why such an interim order should not be made.

   (4) An occupation order which is made on an ex parte application while the prescribed person concerned and the respondent are living together in the same household residence shall expire—

   (a)   on its discharge by the court;

   (b)   on the discharge of an interim protection order made pursuant to subsection (3); or

   (c)   in any other case, at the expiration of a period of fourteen days after the date on which the occupation order was made.

   (5) Where an occupation order is made, on an ex parte application, the respondent may apply immediately for its variation or discharge.

13.   Effect of an occupation order

   Where an occupation order is made the prescribed person to whom it relates shall be entitled, to the exclusion of the respondent, personally to occupy the household residence to which that order relates.

14.   Variation or discharge of occupation order

   The court may, if it thinks fit on an application of either party in accordance with the form prescribed in Form 7 of the Schedule, make an order, in accordance with the form prescribed in Form 8 of the Schedule—

   (a)   extending or reducing any period specified by the court pursuant to section 11 (2); or

   (b)   varying or discharging any terms and conditions imposed by the Court pursuant to section 11 (2).

PART IV
TENANCY ORDERS

15.   Application for a tenancy order

   (1) An application may be made to the court in accordance with the form prescribed in Form 9 of the Schedule for an order vesting in the applicant the tenancy of any dwelling-house which, at the time of the making of the order—

   (a)   the respondent is either the sole tenant or a tenant holding jointly or in common with the applicant; and

   (b)   is the household residence of the applicant or the respondent.

   (2) Subject to section 19, the court may make an order in accordance with the form prescribed in Form 10 of the Schedule on an application under subsection (1) if the Court is satisfied that such an order—

   (a)   is necessary for the protection of the applicant; or

   (b)   is in the best interest of a child or a dependant.

16.   Grant of a tenancy order on an ex parte application

   (1) A tenancy order may be made on an ex parte application if the Court is satisfied that—

   (a)   the respondent has used violence against or caused physical or emotional injury to the applicant, or any other prescribed person; and

   (b)   the delay that would be caused by proceeding on notice would or might expose the applicant or any other prescribed person as the case may be, to physical injury.

   (2) Any tenancy order made on an ex parte application shall be an interim order.

   (3) Where the court makes a tenancy order on an ex parte application, the court shall, at the same time, make an interim protection order unless the court considers that there are special reasons why such an order should not be made.

   (4) A tenancy order which is made on an ex parte application while the applicant and the respondent are living together in the same household residence shall expire—

   (a)   on its discharge by the court;

   (b)   on the discharge of an interim protection order made under subsection (3);

   (c)   in any other case, at the expiration of a period of fourteen days after the date on which the tenancy order was made.

   (5) Where a tenancy order is made on an ex parte application, the respondent may apply immediately for variation or discharge of that order.

17.   Effect of a tenancy order

   (1) Where a tenancy order is made, the applicant shall, unless the tenancy is sooner determined, become the tenant of the dwelling-house upon and subject to the terms and conditions of the tenancy in force at the time of the making of that order, and the respondent shall cease to be the tenant.

   (2) Every tenancy order shall have effect and may be enforced as if it were an order of the court for possession of land granted in favour of the applicant.

   (3) Nothing in this Act or in any tenancy order shall—

   (a)   limit or affect the operation of any written law for the time being applicable to any tenancy to which a tenancy order applies, or to the dwelling-house held under the tenancy; or

   (b)   authorize the court to vary, except by vesting the tenancy pursuant to this section or revesting the tenancy pursuant to section 18, any express or implied term or condition of the tenancy.

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