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CRIMINAL PROCEDURE LECTURES

TOPIC ONE
INTRODUCTION AND STRUCTURE OF COURTS
The Criminal Procedure is the process through which penal
and criminal laws are applied. That is the process of the
application of penal laws. It is procedural law and not substantive
law. The essentials of criminal proceedings are:
1. To bring the accused within the power of the tribunal.
2. A preliminary investigation to ensure the crime is one which
should be prosecuted.
3. Notice to the accused of the offence charged upon arrest:
the accused has to be told why he is being arrested. Notice
to give charge sheet with information against him, for him to
respond and to defend himself.
4. Opportunity to prepare for trial, procure witness.
5. A speedy trial. A trial should be conducted as fast as possible
because during the course of the trial the accused may be
kept in prison as they have been refused bail.
6. Fair trial before an impartial tribunal. Accused is given an
opportunity to say something in his defense. Through
counsel of his own choice.
7. A right to the review of the case by a suitable appellate
tribunal. Right to review if the accused is not happy /
satisfied with the process.
Under our jurisdiction there are 2 ways of review:
1. Review by way of appeal.
2. Review by way of revision.
Criminal proceedings commenced in the name of the state of
Kenya are titled R (meaning Republic) v Accused. In other
jurisdictions, such cases are titled People v Accused or State v
Accused.
In private prosecutions, it is always the Republic because you
institute in the name of the state. The state is treated in all
criminal cases as the complainant and it is not necessarily the
victim.
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In law every crime is committed against the state because a


crime is defined as a wrong against the society or the state. The
state is responsible for the society. The state takes the
responsibility to seek redress of the complainant or the victim.
The state protects and defends others. The real victim is also the
complainant particularly in crimes involving private property and
against the person. In all cases the real victim as a complainant
appears as a witness for the prosecution, and therefore the
complainant is not a party to the suit. The parties are the republic
and the accused. The complainant has no right to appeal only the
state can appeal because the complainant is a witness.
STRUCTURE AND JURISDICTION OF THE CRIMINAL COURTS
IN KENYA
1. In the administration of criminal law the function of the court
is to defend the society from the acts of the criminal.
2. The courts also uphold the fundamental rights of the
accused person. The courts are alive to the inalienable rights
of the accused person.
3. Criminal procedure is intended to assist the court in the trial
of suspects (to balance these competing interests).
4. The criminal procedure helps the court determine the guilt or
innocence of the accused.
The subordinate courts conduct most trials in Kenya. The High
Court does try criminal cases but its criminal jurisdiction is fairly
limited (e.g. murder). The court martial has limited jurisdiction.
Some courts have appellate jurisdictions. The appellate courts
are:
i)
The Supreme Court
ii)
The Court of Appeal.
iii) The High Court.
iv) The Senior Resident Magistrate Courts.
Magistrates Court
Established by the Kenyan Constitution (Article169 (a), the
court works under Chapter 10, the Magistrates Court Act and the
Judicature Act, Chapter 8. The Magistrate courts are classified in 2
ways:
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1. Magistrate courts;
a. District Magistrate courts:
i. District Magistrate Court 1
ii. District Magistrate Court 2
iii. District Court magistrate 3
b. Resident Magistrate court:
i. Chief Magistrate
i. Senior Principal Magistrate.
2. Subordinate courts:
a. Class 1:
i. Resident Magistrates Court;
ii. Principal Magistrate Court
iii. Chief Magistrate
iv. District Magistrate 1
v. Senior Resident Magistrate
vi. Senior Principal Magistrate
b. Class 2
i. District Magistrate 2
c. Class 3
i. District Magistrate 3 it has been done away
Therefore the powers are given according to the classes to the
courts in them.
District Magistrates Court
Established under section 8 of the Magistrate Courts Act and
may be of class 1 and 2. Its jurisdiction is limited to gazetted
geographical districts and by their sentencing power. Jurisdictions
of the District Magistrate are set out in section 7(2) and (3) of the
Criminal Procedure Code.
The District Magistrate Court 1 has the same power as the
Resident Magistrates Court.
Powers:
1. It can impose imprisonment not exceeding 7 years.
2. It can impose a fine not exceeding Ksh. 20,000.
What happens when a District Magistrate Court 1 determines
that the accused should be given a heavier punishment than that
which they can give? They refer to a court with the appropriate
jurisdiction i.e. the Senior Resident Magistrate Court, the Principal
Magistrate Court the Chief Magistrate is appropriate.
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A District Magistrate can try a person charged with fairly


serious criminal offences e.g. rape, assault, causing grievous
bodily harm.
District Magistrates Court 2
A second class of courts has powers to impose such
punishment as:
1. Imprisonment not exceeding 2 years;
2. Fine not exceeding Ksh. 10,000.
Cases triable under the DM2 are theft, burglary,
housebreaking, and offences created under various statutes e.g.
the Traffic Act.
District Magistrates Court 3
Power to impose:
1. Imprisonment not exceeding 12 months.
2. Fine not exceeding Ksh. 5,000.
It deals with minor offences e.g. affrays, fighting in public; for
this offence there has to be more than one person charged; drunk
and disorderliness, loitering with intent to prostitute. It attracts
light fines and discharges.
It tries offences under statutes like offences under the
Traditional Liquor Act, the Changaa Prohibition Act, and the Traffic
Act.
NB: DM courts are courts of first instance, criminal trials
originate here. These courts have no revision or appellate
jurisdiction; they cannot review matters or hear appeals.
Appeals arising from the DMs are heard at the RMs and the
High Court depending on the classification of the DMs court.
Appeals from the DM 3 go to the RM while appeals from the DM 1
and 2 go to the High Court. With appeals from the DM3 there is a
further appeal to the High Court, which is the final court of
appeal. Appeals from the DM 1 and 2 have a further appeal to the
court of appeal.
The DM courts are being phased out particularly DM 2 and 3.
Law magistrates who are not qualified lawyers man these two
classes of courts.
During colonization we began with the RM courts. The DM
courts were created by the independence government to
accommodate the African district courts manned by people who
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are not lawyers. Most magistrates in Kenya are now lawyers so


few lay magistrates should head courts.
DM where graduate lawyers join as magistrate is the entry
point. They are promoted to Resident Magistrate and not to DM1.
Resident Magistrates Court
They were established under section 3 of the Magistrate
Courts Act. They enjoy wide jurisdiction. The RMs courts are
presided over by the Chief Magistrate, the Senior Principal
Magistrate, the Principal Magistrate or the Senior Resident
Magistrate or Resident Magistrate.
The Criminal Jurisdiction of the RM court covers most of the
crimes and is set out in section 7 of the Criminal Procedure Code.
Section 7(1) of the Act vests the CM, the SPM, PM and SRM
courts with power to pass any sentence authorized by law for the
offence triable by that court. These courts have jurisdiction to try
all serious offences except treason and murder, which are only
triable in the High Court. Offences permitted are manslaughter,
robbery with violence, arson, rape, etc. They try offences carrying
life imprisonment and death.
Section 7(1)(b) and section 7(2) vest the RM court (distinct
from others: SRM, SPM, PM, CM) with powers to pass any
sentence authorized by law under section 278 of the penal code
i.e. stealing stock, section 308 (1) of the Penal code and section
322 of the penal code.
The offences created under this section carry a maximum of 14
years imprisonment, implying then that the jurisdiction of the RM
of 7 years can be exceeded for these offences.
In respect of other offences the jurisdiction the RM is limited to
7 years imprisonment or a fine not exceeding Ksh. 20,000.
Section 8 of the CPC allows the Judicial Service Commission to
extend the jurisdiction of the RM so that the RM can try cases of
this class - SRM or the CJ can post an appropriate magistrate for
that particular case.
RMs courts (the two classes) are courts of first instance or
original jurisdiction. They handle trials but not appeals except
appeals from the DM 3 court.

Under the Kenyan Law there is no provision for trial by jury there
for the magistrate is a judge for both the Law and for Fact. The
magistrate does not sit with assessors.
Apart from trials the RMs court has jurisdiction to:
1. Preside over committal proceedings.
2. To conduct inquests.
COMMITTAL PROCEEDINGS
RMs courts try criminal cases and committal proceedings.
Section 233 of the CPC relating to conducting of committal
proceedings in respect of offences triable at the High Court e.g.
murder and treason.
The role of the RM court is to decide whether or not the person
would stand trial in the High Court for a capital offence. The
objective is that the High Court should not handle frivolous cases
and therefore committal proceedings are there for dismissal of
frivolous cases and serious ones are taken to the High Court.
Committal Proceedings take the form of a preliminary hearing
before magistrates and evidence is recorded by the magistrate to
determine whether the case is worth trying in the High Court.
Replacement of preliminary inquests where magistrate dont get
to hear oral evidence. They dont deal with witnesses. Instead
they are furnished with committal bundles comprised of a bundle
of documents relating to the case i.e. the statements of the
witnesses and the accused.
Any expert evidence report from a doctor or analyst is passed
to the magistrate to read in order to make a determination
whether there is a case worth trying in the high court.
1. If in the opinion of the magistrate the bundles have a case
triable at the High Court, the accused is committed to the
High Court for trial.
2. If the documents do not disclose any offence, the magistrate
should discharge the accused.
3. If the documents do not disclose the offence charged but
they do disclose a lesser offence, the magistrate conducting
the committal proceedings should charge the accused with
that lesser offence, e.g. if charged with murder, but
documents do not show murder but show manslaughter, the
magistrate should charge the accused with manslaughter.
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INQUESTS
RMs court has jurisdiction to conduct an inquest. Inquests are
conducted in the event of sudden deaths, including cases of
suicide.
They are governed by section 387 of the CPC. It covers deaths
arising in police custody, in prison, roads traffic accidents, and
other circumstances where it is not readily explainable and not
possible to point out a suspect.
It is the duty of the police to report such deaths to the court. The
role of the courts in conducting inquests is investigatory. It is not a
trial.
After the inquest, the court may identify the person responsible
for the death and recommend his arrest and stand trial. Where
the death cannot be connected with the inquest the file will be
closed and that would be the end of the matter.
Suspects are treated like witnesses but there is not enough
evidence to charge them so the police just give their names to
the court to investigate.
JUVENILE COURTS
Created by the Children and Young Persons Act, cap 141 of the
Law of Kenya and it is repealed by the Childrens Act, which came
into force in 2003.
The Juvenile Court tries young offenders aged below 18. Under
the relevant laws there are procedures that govern juvenile cases.
The procedure to be followed is not prescribed in the CPC, but is
based in the Childrens Act.
Procedure:
1. Matters are heard in camera without an audience,
2. The words conviction and sentence are not used and the
offender, if found guilty is not convicted and sentenced.
The objective is to ensure that children and young persons are
not treated like adults. The objective is to rehabilitate young
offenders; therefore terms, which are commonly associated with
punishment, are avoided. Juvenile courts are not allowed to
impose a custodial sentence unless the offender cannot be dealt
with otherwise.
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Young offenders are placed in probation so that they are taken


care of by probation officers and they are counseled. Other
measures taken include discharge where one is guilty but they are
left.
There is only one juvenile court in Nairobi. Elsewhere
juveniles are tried by the PM and the RM courts, but they follow
the procedure required when tying juvenile cases,
Where the trial is by DM2 and DM3 the juvenile upon being
found guilty is not sentenced there but referred to the RM for
sentencing.
Young persons during sentencing are treated rather leniently.
Custodial sentences are avoided as they expose the young
offender to hard-core criminals.
Keteta v R (1972) EA 532
Minor convicted of attempted stock theft and sentenced to
imprisonment, on appeal to the High Court applied cap 141 and
stated that it was improper for a minor to be sentenced to
imprisonment and went on to discharge him conditionally.
Main v R (1970) EA 370
This is a robbery case involving a young person. The Childrens
and Young Persons Act compelled the court to hold that the
protection offered under the act could only be taken away but
express terms of section 296 of the penal code and since it does
not do so the young person convicted were sent to borstal
institutions.
Thomas Odinga Mulanya v R C.A. Criminal Appeal no 84 of
1986.
A young person pleaded guilty to manslaughter and sentenced
to three years imprisonment. He was seventeen years at the time
of the commission of the crime. On appeal, the court of appeal
found that he ought not to have been sent to prison and his
punishment converted to six strokes of the cane.
COURT MARTIAL
Established under the Armed Forces Acts cap 199. It is a
subordinate court. It is designed for the maintenance of discipline
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among the members of the Armed Forces. Part V creates service


offences i.e. crimes that can only be committed by members of
the armed forces. These include:
1. Treachery in case of treason committed by members of the
armed forces,
2. Cowardice
3. Offences arising out of service
4. Mutiny and insubordination,
5. Disobedience of lawful order from a senior officer (check the
New Constitution);
6. Absence and desertion without leave;
7. Offences relating to maligning;
8. Drunkenness and fighting;
9. Rowdiness and quarrelling
10.
Offences relating to property belonging to the armed
forces, etc.
The Court Martial consists of:
1. Senior commission officer who are commission officers.
These are the Commission Officers and the Military
Commission Officers. Senior Commission Officers should be
in the rank of the Marshal and above.
2. Two other members who are also soldiers,
3. A judge advocate that is either a magistrate or an advocate.
The Chief Magistrate at the request of the Convening Officer
appoints the judge advocate with the consent of the AG. The
role of the judge advocate is to guide and advice the court
on matters of law. Proceedings are conducted according to
the law. He is like a judge, summing up the facts and law
after both parties including the prosecution do their case.
The judge advocate sums up the case for the benefit of the
court. The judge advocate is a member of the Court Martial
and therefore he does not participate in the determination of
the case. He guides the case.
An appeal lies at the High Court to the decision of the Court
Martial. It is with the leave of the Court Martial. It is not as of
right. The AG has a right in the case of an acquittal to challenge.
(Look at the relevant statute for the procedure.)
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If the procedure is not followed the decision can be thrown out on appeal to
the High Court.

For an officer who breaks the law against a fellow member of


the armed forces, they are triable in the Court Martial, but if it is
to a fellow citizen, then the case shall be tried in a civilian court.
The same principle applies as regards the abuse of property.
HIGH COURT
The High Court is established under article 165 of the
constitution and has unlimited jurisdiction and inherent powers in
its trial capacity in criminal cases. It has appellate jurisdiction
over criminal matters arising from the subordinate courts.
It has countrywide jurisdiction. The criminal jurisdiction of the
High Court is set out in the CPC i.e. section 4 which empowers it
to try any offence and impose any lawful sentence. It doesnt
matter that the matter is murder or treason; It can try for sedition
or traffic matters, etc.
Apart from original and appellate jurisdictions it also has a
supervisory jurisdiction over the subordinate courts and inferior
tribunals exercising judicial and quasi-judicial functions. This is
found under section 165(5) and (7) of the constitution.
Supervisory jurisdiction goes hand in hand with Judicial review in
exercise of the order of certiorari, mandamus and prohibition.
The order of certiorari quashes the order of the inferior court to
body. It has been used by the High Court to quash decision s of
inferior tribunals in the area of criminal law. This is where one
feels that the other court has acted in excess of its powers by the
order being illegal and irregular.
In the case of certiorari the case is R v Resident Magistrates
Court in Nairobi and the Commissioner of Police Ex Parte
Ngecha Industries H.C. Misc Application No 182 of 1998.
Rons Chesogony v Chief of General Staff and Others Civil
Appeal No. 84 of 2000 Ex Parte Ngecha Industries
A certiorari was issued to quash an order issued by the Nairobi
Chief Magistrate authorizing the police to enter and search the
premises of the appellant and seize certain items contained in the
search warrant issued by a Ugandan court, The Ugandan search
warrant had been issued by the Kampala Chief magistrate
addressed to the Kenya Police in Nairobi and requiring the Kenya
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Police to enter the premises of the applicant in Nairobi and search


out for certain things set out in a list attached to the warrant and
if found forward by the Uganda Attorney General to Nairobi Chief
Magistrate who endorsed it. In execution of the same the Kenya
police seized some goods and removed them from the applicants
premises. The applicant moved to the High Court to challenge the
legality of the search. In this case, the law applicable was the
Extradition (contiguous and foreign countries) Act cap76 not the
CPC. Under the provisions of this Act, a magistrate is allowed to
enclose a warrant of arrest issued in another country issued for
the arrest of a person in Kenya. The Act does not provide for the
endorsement search warrants, the order was therefore illegal and
unlawful and it was quashed. The magistrate had acted in excess
of his jurisdiction by endorsing the search warrant.
In the other two cases the jurisdiction of the High Court was
used to quash the proceedings of the Court Martial. In both cases
the procedure of the Armed Forces act had not been complied
with,
In Ronald Muge the complaint was in relation to the
appointment of the judge advocate where the latter was
appointed by the CJ without the consent of the AG. The
proceedings were defective and quashed.
Stopped PROHIBITION
Prohibition is used to prohibit the doing of such acts, which
are ultra vires or contrary to the rules of natural justice by an
inferior court or tribunal. The order is available where the court
acts:
i)
In excess of it jurisdiction;
ii)
Denies the accused a fair hearing.
In the case of Amrik Singh v the Resident Magistrate
Court in Nairobi H.C. Misc App. No 117 of 1982 a trial
magistrate allowed an amendment of a charge without giving an
opportunity for the advocate of the accused to be heard on
objection before the amendment was allowed. An order of
prohibition was granted by the High Court to prohibit further
proceedings in the matter.
In Jared Benson Kangwana v AG H.C. Misc App 446 of
1996 an order of prohibition was made to prohibit the Nairobi
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chief Magistrate from hearing a criminal case against the


applicant, on the grounds that the criminal trial against the
accused was an abuse of the process of court.
It was held that the said criminal proceedings against the
applicant were instigated and maintained by 3 rd parties
particularly the Transnational Bank with a view to exert pressure
on the applicant to pay the debt owed to the bank. The charges
against the applicant were preferred after he sued the bank on a
civil matter. The court concluded that there was bad faith on the
part of the bank and proceeded to prohibit the trial.
In the other case the matter of an application by Kamlesh
Pattni & Others H.C. Misc. Appl. 1296 of 1998. AN order of
prohibition was made prohibiting the Kibera DMs court from
proceeding with the charges against the applicant on the basis
that the charges were an abuse of the powers of the court. In the
case of Pattni, business rivals had instigated the charges; the
charges were intended to give credibility to the rivals counter
claim filed against Mr. Pattni.
Should a prohibition be issued against a 3 rd party? Some
judges argue that it is improper for the claim to be against a 3rd
party and not the court.
Deepa Panachand v AG H.C. Misc. Appl.199 of 2000.
John Wambua v Principal Magistrate Court Kibera H.C.
Misc Appl 328 of 2000
In both cases H.C. refused to grant an order of prohibition to
stop a criminal trial. In both cases the judge stated that the
complaint was real that the 3rd party rather than the court was
acting improperly and there is no basis of prohibiting the court.
In the Wambua case the complainant was that the KWS was
using the prosecution to prosecute the applicant.
The H.C. also has revisional jurisdiction under the section 362
and 367 of the CPC. Revisional jurisdiction is intended for
correction of errors at the trial court, which are not appealable in
law. It is therefore supplementary to the appellate jurisdiction of
the High Court.
Revision was sought in Obiero v Republic (1962) EA 650 by
the state for the enhancement of the sentence from absolute

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discharge to conditional discharge. The state was of the opinion


that the discharge occasioned injustice.
The state had no right of appeal and the only way of attaching
the sentence was by way of revision. The High Court has the
power to revise on its own motion without being moved by any of
the parties.
The High Court can also revise a trial court order of a party
who has the right to appeal but does not appeal. R v Singh
(1957) EA 882.
Revisionary powers should not be exercised where an appeal
has been launched. Revision is sought mainly in cases where
there are errors e.g. misquoting provisions of the law. In civil
cases revision is referred to, as review there is an apparent error
in discovered after the trial.
The High Court has jurisdiction to issue a habeas corpus order.
This is like other orders in a prerogative order and is issued at the
discretion of the H.C. and it secures the release of any person and
authority. The High Court uses the same to execute control over
the police and prison authorities where they hold a person without
legal authority. Provision is under section 389(2) of the CPC and it
literally means produce the body as is directed at the person
holding the applicant.
Re Ali Rehman (1960) EA 302
An order of Habeas Corpus issued and directed at the
commissioner of prisoner and the officer in charge of Luzira prison
provision in Uganda to release the applicant who was legally in
prison.
Re Application of Muthoni Mureithi on Behalf of Mwangi
Stephen Mureithi (Nairobi H.C. Misc Criminal Appl 88 of
1982). Mwangi was at the time Assistant Director of the
Intelligence and Moi transferred him to the Manager of the
Uplands Bacon Factory. He was arrested and held in custody with
his lawyer, John Khaminwa. The wife sought an order of habeas
corpus. Unfortunately, the court did not get to issue the order for
he was detained. The order was not against the director of the
CID to produce the body of Mwangi Stephen Mureithi.

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Republic v Commissioner of Police and Director of CID Ex


Parte Raila Odinga (Nbi. H.C. Crim App 344 of 1988).
Brought by the wife of Odinga after he was arrested before he
was detained.
Re Ibrahim (1970) EA 168
It has been held that High Court can only issue in respect of a
living person.
Held in Stephen Baraka Karanja v R (Nbi High Court
Crim App 374 of 1998).
The case was at the height of
the Mwakenya. Karanja was arrested in Limuru disappeared for a
week. The wife sought the order. Police were unable to state his
whereabouts, he had been tortured and killed and then buried.
The state argued that Habeas Corpus could not be issued for the
person was already dead. The judge held that Habeas corpus
means produce the bodies.
The CJ then decided to change the case to Akilano Akiwumi
instead of Schofield (the police officer who had taken him to
Nakuru, tortured, killed and buried him) who said that Habeas
Corpus applied only in regard to living persons.
JURISDICTION IN CONSTITUTIONAL MATTERS
High Court has jurisdiction over the constitutional matters
whether civil or criminal.
Article 165 of the Constitution.
Under Article 165 the High court protects the fundamental
rights of individuals. Enables individuals who are complaining of
infringement of their rights to approach the High Court. This
provision has been used to prohibit criminal proceedings, which
are in the opinion of court an abuse of court process.
Stanley Munga Githunguri v R High Court Crim Appl 271 of
1985
The High Court ruled that the prosecution was an abuse of the
process of court and granted a prohibition order under the section
84 of the former constitution. Section 84 of the former
constitution would be applied where judicial review cannot be
done and is not available.
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Article 165 of the constitution places primary duty of


interpretation the constitution on the High Court. In the
magistrates court whenever a constitutional issue arises during
trial should refer the matter to the High Court for interpretation.
This is essentially a reference by a magistrate i.e. it is the
magistrate who refers the matter to the High Court on either its
own motion or on application by the parties.
Reference initially goes to the CJ who must probate on the
basis of merit. If he finds merit, he should appoint a constitutional
court.
He has stated on a number of cases that the CJ has exclusive
administrative power to examine the issue and determine
whether it justifies the convening of a constitutional court.
Githungiuri v R Misc Appl 180 of 1985.
G.B.M. Kariuki v R H.C. Misc App 382
Samuel Okello & 3 Others v Chief Magistrates Court
Nairobi H.C. crim App 182 of 2000.
Here the counsel for the accused had applied before the
magistrates court for a number of documents to be furnished to
the accused by the prosecution. Facilities to help defense included
statements recorded at inquiry and documents of evidence for the
trials.
A constitutional court appointed under section 67 must be
made up of 3 High Court judges whereas a court appointed under
section 84 need not have 3 judges but the CJ may determine how
many judges will hear the case.
COURT OF APPEAL
Established in 1977 after the collapse of the EAC. Established
under section 164 of the Constitution and is the second highest
court in the country.
It enjoys appellate jurisdiction conferred by section 3 of the
Appellate Jurisdiction Act cap 9. It has no original jurisdiction and
therefore cannot revise a decision of the high court and cannot
enhance a sentence.
It hears appeals from the High Court or a Tribunal whether
original or appellate. Some acts of parliament make decisions of
the High Court final so no appeal in such cases can lie in the Court
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of Appeal. For example appeals from court martial under the


armed forces Act cap 499.
Kabilu v R 1982 88 KAR 584
Applicant had been convicted by a court martial of taking part
in a mutiny and sentenced to 8 years imprisonment and
dismissed from the armed forces. His appeal to the High court
was dismissed and he filed a further appeal to the court of appeal,
which was dismissed for being incompetent for want of
jurisdiction of the court of appeal.
TOPIC TWO
PREPARATION OF CASE FILES
A file is a folder that holds loose papers together for
organization and protection. File folders usually consist of a sheet
of heavy paper stock or other thin, but stiff, material which is
folded in half, and are used to keep paper documents. They are
often used in conjunction with a filing cabinet for storage.
Successful practitioners (prosecutors and counsels)
need to have the ability to think on their feet, master the art of
persuasive talking and impress by their charisma. Mastery of
these skills gives practitioners confidence. However one has to
effectively prepare for the task of representation for them to
exude the kind of confidence expected of a practitioner.
Preparation will entail knowing the facts of the case thoroughly,
considering the potential relevance of all the facts in their legal
context, considering possible responses to any point made,
planning and thinking through arguments beforehand. Having
gone through this, the practitioner can deliver a convincing
address while addressing all the relevant questions that may
arise. For effective preparation, the prosecution/defence has to
maintain a file that must have basic documentation.
PREPARATION AND CONTENTS OF THE
POLICE/PROSECUTION FILE
Preparation and compilation of

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police files is governed by The Force Standing Orders. The police


file would ordinarily have the following documents and records
(a)Custody Record
This explains the reason why the suspect was arrested, place
of arrest, time and date. It also indicates time when the suspect
arrived at the station and his condition on arrival. A detention
decision is then made to keep the suspect in police custody
possibly to await arraignment or pending further investigation.
The comment by the suspect on being informed of detention is
also recorded. It also contains the name of the officer opening the
custody record. The accused persons personal details like
names, postal and residential addresses, age, occupation and
ethnic/racial group. Name and rank of the arresting officer and
officer in charge of the investigation are also noted. Detained
persons rights are read recorded and an interpreter, in case the
suspect does not understand the language. All documents
relating to the report of the offence and all subsequent reports or
amended reports to be marked A(1), A(2) etc. The marking
distinguishes various reports made by different persons and
enhances clarity and reference.
(b)Photographs, sketches, plans and such other material referring
to the scene of crime together with copies of any other
documentary exhibits should follow the reports. These documents
should be marked as B(1), B(2).. photographs should be mounted
on foolscaps. In case they are not mounted on foolscaps, then
they should be placed in envelopes of a suitable size and the
contents thereof clearly listed on the outside.
(c)Copies of reports such as post mortem, ballistic report, finger
print, expert report, handwriting expert and all other expert
reports should then follow marked C(1), C(2)..

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Contents of medical reports and such other experts whose


language is technical must be supported by a statement from the
expert setting out in detail and simple language the contents of
the report.
2. Witness statements- prosecution files must have prosecution
witness statements. The complainants statement that forms
the substratum of the charge must be on the file. The
arresting officers and Investigation Officers statements as
well as all expert witnesses statements and all material
witnesses statements should be in the police file. Every
statement recorded by police will
a. show the date, time and place it was taken;
b. bear the full names, age, registration and full address
and all other available identifying particulars relevant
to the individual making the statement;
c. the language used by the person making it will be
indicated at the head of the statement by adding the
words in thelanguage. If other than English and an
interpreter is used, a certificate shall be completed by
the interpreter.
d. The statement must be endorsed to the effect that the
author has been invited to effect corrections he wishes
to make after reading it. The statement must be signed
by the witness or if illiterate thumb printed. If the
witness declines to authenticate the statement, then
the reason thereof is recorded, if given by the witness.
18

3. Copies of all other prosecution witnesses should then follow,


including evidence of identification parades which follows
the main identifying witness. The statement of the Police
Officer conducting the ID parade will be cross referenced
with statements of each identifying witness for ease of
reference, and will itself include as an addition to the
statement a copy of police form P. 156. all statements are
marked D(1),D(2)..
4. then follows the main statement by the accused person
including statements made under caution and all
supplementary statements to be marked E(1)
5. investigation diaries of all police officers conducting the
investigation which must be full and accurate setting forth
times, dates and places visited and action taken should be
marked F(1)..
6. copies of charge sheet and related documents that will be
read in court to the accused person should follow. The same
should be marked G(1)..
7. Lists of witnesses, exhibits, prisoners property, accuseds
property, accuseds criminal record, statistics Forms will
follow. These are marked at H(1)..
8. The document that follows thereafter is the covering report
drawn up by the officer in charge of the investigation setting
forth in detail the prosecution case as it stands. Reference
must be made to the contents of the file e.g F1 for quick
reference.
19

9. On the left hand side of the police file cover a


correspondence sub-file will be kept. This sub-file deals with
requests for advice from the IO to the in charge or any other
correspondence on the matter. The sub-file also contains
instructions from gazetted officers/state counsels to IOs.
Commendatory remarks and other matters on interest
arising out of the case are also recorded in the sub-file. This
sub-file is marked H(1).

PREPARATION AND CONTENTS OF THE ADVOCATES


FILE
The advocate has a pivotal role in a trial. He is the central
figure who communicates his clients story to the court. Just as
the quality of a story depends on the author, the persuasiveness
of a case depends on the author. A case presented in court is as
much a product of the lawyers conceptual skills as it is a re
capitulation of evidence. The facts are jumbled in pieces; in
memory of witnesses, buried in documents or reflected in physical
exhibits. The advocate makes sense of these pieces, he/she;
(a)

The advocate conceptualizes the theme of the case

(b)

Plans its presentation

(c)

Narrates the clients story

(d)

Documents it is correct

(e)

The case is presented with vividness and strength

Making a compelling case requires work. The advocate will


marshal evidence to prove facts that support the ultimate findings
and make it understandable and convincing to the court.

20

Preparation is essential to success in litigation. An advocate


cannot rely on natural ability and charm to produce a winning
case nor expect fate to produce the winning point in an inspired
cross-examination. Instead, good litigators depend mostly on
hard, painstaking work.
Preparation is essential to a controlled and smooth
presentation. In an adversarial system uncertainty looms and one
may appear befuddled and inept when a surprise is sprung during
the trial. The lawyer may panic, ask foolish questions, miss
opportunities and consequently fail a client. A well crafted plan
permits counsel to keep steady course, appear in control, and
manage adverse events. A good trial plan, complete with a
summary of points for each witness and outline of questions,
serves as an anchor to help the advocate withstand surprises.
When an adverse ruling is made by the court, a witness gives an
unexpected response the natural response is to look perplexed
and disappointed. Yet the best reaction is to take the event in
stride and remain focused on the theme. A trial plan helps the
advocate accomplish this goal.
To adequately prepare for trial, an advocate must know the
case itself as much as possible and what the other parties have.
To do this, one must know what court and police files have and
then build a comprehensive defence file. To achieve this, the
advocates file must have the following documents:a) Instruction note:- this is the basis upon which the advocate
takes action. It is issued by the client or the clients agent. It
contains a note of the exact action required of the advocate,
advocates name, name and address of the person giving
instructions and retainer.
21

b) Client attendance form:- this form indicates name of


client, date of attendance, length of time spent attending the
client/representative and purpose(s) of attendance. It
enables the advocate to track the time spent attending to
the client. It may eventually have a cost element especially
where one bills the client on an hourly basis. This attendance
form is filled for attendance in chambers.
c) Court attendance form:- this form is filled on attending
court to represent a client. It contains date of attendance,
length of attendance, file reference, name of client, case
number and parties, name of advocate in attendance,
counterpart in attendance, name of judicial officer, purpose
of the court attendance, instructions for the said attendance,
what transpired in court and further instructions as a
consequence of the court attendance.
d) Charge sheet:- after taking the plea (not guilty), the
advocate will be given a copy of the charge sheet. The
charge sheet has to be perused by the advocate for defects
that may lead to miscarriage of justice.
e) Bail/bond documents:- if the offence is bailable, then the
advocates file will have the necessary copies of documents
necessary for the admittance of the client to bail. These may
include titles, valuation report, identification card of the
surety, pay slip e.t.c. They are copies because the originals
are deposited in court.
f) Contents of Prosecution file:- on attending court, after
taking plea, the advocate would ordinarily apply to court for
copies of the entire prosecution with specific interest in:Custody Record, photographs, sketches, plans and such
other material referring to the scene of crime together with
copies of any other documentary exhibits. Copies of reports
such as post mortem, ballistic report, finger print, expert
report, handwriting expert and all other expert reports.
Witness statements, investigation diaries of all police
officers conducting the investigation which must be full and
accurate setting forth times, dates and places visited and
action taken. Lists of witnesses, exhibits, accuseds criminal
record, statistics Forms will follow. The covering report

22

drawn up by the officer in charge of the investigation setting


forth in detail the prosecution case as it stands.
g) Photographs, sketches, plans and such other material
referring to the scene of crime together with copies of any
other documentary exhibits obtained by the defence for the
purposes of the defence should be on the file. Photographs
should be mounted on foolscaps. In case they are not
mounted on foolscaps, then they should be placed in
envelopes of a suitable size and the contents thereof clearly
listed on the outside. Marking and mounting is for purposes
of ease of reference and safe keeping.
h) Copies of reports such as post mortem, ballistic report,
finger print, expert report, handwriting expert and all other
expert reports should be on the defence files. Defence can
only rebut expert evidence by calling an expert. If the
defence calls an expert of similar competence, then the
expert will write a report which will be produced at the
hearing. Contents of medical reports and such other experts
whose language is technical must be supported by a
statement from the expert setting out in detail and simple
language the contents of the report.
i) Witness statements- defence files must have defence
witness statements. The accuseds statement that forms the
substratum of the defence must be on the file. If the
defence engages services of a private investigator, the
investigators statements as well as all expert witnesses
statements and all material witnesses statements should be
in the defence file.
23

j) Lists of defence witnesses and exhibits should also be on the


file.
k) The advocate should have a list of authorities that he
intends to rely on while submitting.
l) It is also appropriate for the advocate, on the basis of
witness statements, expert reports, photographs, sketches
and all documents in his custody to render a preliminary
legal opinion to client on the strengths and weaknesses of
the case. This may be important especially, where in a
proper case, there are out of court settlement offers.
m)

Written notes on case concept/battle plan (preparation

for trial of the case) which should capture the spirit of the
opinion.
PREPARATION AND CONTENTS OF COURT
FILE
1. The Court file (physical file) contains the following; (on top of
the file)
Court of arms
Court names/ place
Case number/ year
Names of suspect(s)
Name of the case
2. Inside the file 1st page contains;
The date
24

Names and rank of judicial officer to conduct trial


Names and rank of prosecutor
Names of counsel/advocate (s)
Names of Court Clerk
Names of Interpreter (if Present)
3. Plea Taking Proceedings
Charges read from the charge-sheet to the suspect in a
language he/she understands
The suspect(s) reply recorded as clearly and directly as
possible
Suspects (s) applications, complaint/ request or inquiry
Advocates address
Prosecutors address
Courts orders on bond/bail for suspect, mentions, hearing
dates and allocation of hearing
Proceedings of Court orders and rulings
4. Court documents in the Court file are
Charge sheet
Bail/bond documents
Particulars of surety documents
Release order of the Suspect

Court Exhibit list

Court list of witnesses


25

High Court orders


5. Hearing Proceedings.
Criminal proceedings commence from when a suspect is
arraigned in court and takes plea. The plea taking process is
recorded. Any applications made in the intervening period
before the hearing starts are also recorded in the court file.
When the hearing starts the proceedings are recorded of all
that is said by each witness, cross examination thereof and
comments made during the proceedings.
All pages of the proceedings are marked serially except the
court rulings and judgment that are marked separately.
Preparation of Advocates file
1. The physical file will contain
Case number/ year
Names of suspect
1. Inside the file will contain
Instructing contact (s) on behalf of suspect
Written instructions from client
Copies of documents or written information from Police
station on clients case
Copies of documents or written information from court on
clients case
Dates of mentions and hearing of the case or any changes
thereof
26

Written notes on visits and enquiries made at the scene of


crime or accident, police station, hospital etc
Written notes on people interviewed and possible witnesses.
TOPIC 3
ARREST
Occurs when a person restrains freedom of movement of
another, it amounts to a deprivation of personal liberty. Under the
Kenyan Law, enjoyment of fundamental rights and freedoms is
subject to public interest. There is a provision for derogation from
the rights and freedom for public interest.
Section 85 provides for derogation for the same of public security.
Right to liberty and movement is enshrined in section 82 of the
constitution. For criminal procedure purposes the right to liberty
may be derogated:
1. In the execution of a court sentence.
2. In the execution of an order of the High Court and the Court
of Appeal for contempt.
3. In the execution of a valid court order for the fulfillment of an
obligation of those in law.
4. To bring a person before the court an order. This is where the
court issues a warrant of arrest for person to be brought to
court,
5. On reasonable suspicion of a person being about or having
committed a criminal offence,
6. For those below age of majority for their education and
welfare e.g. children in custody.
7. Purposes of preventing spread of contagious and infectious
diseases.
8. Confinement of persons suspect of being of unsound mind,
people addicted to alcohol or to drugs for the purpose of
their case.
9. For the purposes of extradition from Kenya / prevention of
entry.
27

10.
When there is lawful need to generate a warrant for
detention.
The CPC does not define an arrest and there is no definition of this
so we resort to case law as in Hussein v Chang Fook (1970) 2
WLR 441 where Lord Devlin stated that an arrest occurs:
1) When a police officer states in terms that he is
arresting; or
2) When an officer uses force to restrain the individual
concerned; or
3) When by words or conduct the officer makes it clear
that he will use force if necessary to restrain the
individual from going where he wants to go; but
4) It does not occur where he stops an individual to make
inquiries.
The provisions relating to arrest found in section 21 40 of the
CPC.
Section 21 provides that in making an arrest the arresting
officer shall actually touch or confine the body of the person being
arrested unless the person submits to the custody either by word
or conduct.
Section 24 provides that the arrested person must be subject
to more restraint than necessary to prevent escape. Once a
person submits to custody of arrestor he should not be tied up. It
is a requirement of a lawful arrest that the arrested be informed of
his arrest.
Article 49 of the constitution any person arrested and
detained should be informed as soon as is reasonably
practicable in a language he fully understands the reasons for
his arrest. This requirement arises from the Common Law. (
Mwangi s/o Njoroge v R (1954) 21 EA 377)
Wheatly v Lodge (1971) 1 All ER 173.
In some circumstances it is not necessary to inform the arrested
person the reason for arrest for example where the arrested:
i)
Person knows the nature of why he is being
arrested;
28

ii)

Where the suspect runs away from his


arrestors.

Christine v Leachinsky (1947) AC 573 (1946) KB 144


Court here discussed the circumstances where it is not necessary
to inform the person of reasons for his arrest.
1. An arrest can be effected either with or without a warrant.
2. An arrest can be enforced either by a law-enforcing agent
(police, DO, DC, and Immigration Officer) or by a private
person.
In either case the process of arrest must be exercised reasonably
within the law.
Where unreasonable force is used or where an arrest is
unlawful note that there exists a remedy in civil criminal law to
redress wrongs committed against the victims. This is a
constitutional right - the right to personal liberty so if it is to be
deprived there should be remedies.
ARREST WITHOUT WARRANT
I)

By Police Officers

Police officers are bound by virtue of the Police Act and


Administration Police Act to maintain law and order in society. In
the normal course of their duty they carry out arrests.
Most arrests without warrants are committed by police officers
during the course of their duties. Powers of police officers in
arrest, prevention of crime and investigations are covered by the
CPC and other statutes. The CPC is the main legislation covering
arrests.
Section 29 of the CPC sets out circumstances in which police
officer may arrest a suspect without a warrant by the court. They
are:
1. Person suspected of having committed a cognizable offence.
2. Person who commit a breach of the peace in his presence.
3. Person obstructs officer as he exercises his duty;
29

4. Person who escapes or attempts to escape from lawful


custody;
5. Person who is suspected upon reasonable ground of being a
deserter in the armed forces;
6. Person found in a street or public place at night and
suspected reasonably of being there for an illegal purpose or
unable to give a reasonable explanation or give account of
themselves.
7. Person with instrument of housebreaking without reasonable
excuse;
8. Reason of possession of anything suspected to be stolen
property;
9. Person reasonably suspected of having committed an
extraditable offence (Offence committed in another country
by suspect or offence where one may be extradited from
Kenya).
10.
Person for whom he has reasonable cause to believe
that a warrant of arrest has been issued against them. Under
section 30 a police officer may arrest without a warrant
persons who are vagabonds, habitual robbers and thieves.
Under section 32 a person who has committed a nonrecognizable offence (offence in respect of which police require
warrant of arrest minor offences) refuses to give his name or
residence, police may arrest without a warrant.

What happens to people arrested without a warrant?


Section 33 of the CPC requires that a person arrested without a
warrant is to be taken to a magistrate or person in charge of
police station as soon as possible and thereafter to court.
The decision to charge the person taken by the OCS
Section 3b when arrested person is taken to the police
officer in charge of the PS the Police Officer may inquire about the
case and release of the person on bond unless he is suspected of
having committed a capital offence or the offence is found to be
serious in nature.
30

The officer in charge may set the suspect free altogether if he


finds that there is insufficient evidence altogether.
The provision of the CPC are further entrenched by Article 49(f)
of the constitution which provides that the arrested person who is
not released should be brought to the court as soon as is
reasonable practicable. At any rate within 24 hours of his arrest in
cases of offences other than those punishable by death e.g.
burglary, theft and within 14 days of arrest for capital offences
It was found that it would be unfair if one would be arrested and
charged immediately when they were innocent. In Imanyara v R
Nairobi H.C. Misc App. No 125 of 1991 it was stated that in
situations where a person is arrested without a warrant, 3
statutory provisions are relevant. These are:
1. Article 49 of the constitution provision relating to the
deprivation of liberty.
2. Section 3b of the CPC p Provision relating to the production
in court of a person arrested without a warrant.
3. Section 29 39 of the CPC provisions relating to arrest
without warrant.
4. Also stated that the effect of a combination of the provision
of the CPC is that the prisoner should be brought to court as
soon as is reasonably practicable as soon as he ends up in
police custody if he is not released on bail from the police
station.
II)

By Magistrate

Section 38 of the CPC empowers the magistrate to personally


arrest an offender or order any person to do so when an offence is
committed in his presence or his jurisdiction. He may thereafter
release the offender on bail or commit him to custody.
Under section 39 of the CPC a magistrate may arrest or order
arrest in his presence within the local limits of his jurisdiction any
person whose arrest by magistrate is competent at the time and
can issue a warrant of arrest. He can only arrest a person within
his jurisdiction.
It was stated in the case of Kionywaki v R that in effecting an
arrest magistrate acts as a judicial officer and not in an

31

administrative capacity and cannot be subject to civil and criminal


proceedings.
III) By Private Persons
Section 34(1) grants a general power to private persons to
arrest anyone who in his view commits a cognizable offence or
who he suspects of committing a felony. This enables members of
the public to arrest someone.
Section 34(2) allows property owners and their servants or
agents to arrest without warrant any person who commits any
offences of damage or injury to property.
Private persons should use reasonable force just like police
where the person to be arrested resists. Use of unreasonable
force to effect an arrest my lead to criminal and civil liability
(assault/false imprisonment and battery).
In Uganda v Muherwa a private person who used a weapon
to incapacitate the deceased suspected to be a thief in the
process of which he died was prosecuted and convicted of
manslaughter.
In Beard and Anor v R the appellants, two private persons
arrested the complainant, tied him and assaulted him although he
made no attempt to escape. They also delayed in handing him to
the police. They were prosecuted for assault and unlawful
confinement. Convicted of these offences as they used
unreasonable and unnecessary force.
Under section 35a person arrested by private persons without
a warrant should be handed over to the police without delay. The
police, depending on the circumstances, should re-arrest him or
set him free.
IV) By Chiefs
Section 8 of the Chiefs Act (cap 148) empowers a chief and an
assistant chief to arrest any person for the purpose of preventing
them from committing a crime in their jurisdiction. In the eyes of
the law chiefs and the assistant chiefs are police officers.
In Lamabutu v R the court recognized chiefs, assistant chiefs,
PCs and DCs as police officers.
32

ARREST WITH WARRANT


Are mainly required for minor offences and misdemeanors
(less than 3 years imprisonment). Warrants of arrest are issued to
secure attendance of person in court. This procedure of securing
attendance is applied mainly in cases where the proceedings are
commenced by first\ laying a charge in court.
After laying a charge in court you seek his attendance in court
as opposed to police arrest then the accused is taken to court.
Private prosecutors e.g. labor officers mainly use this procedure.
As an alternative to an arrest warrant, the prosecution can
apply for summons to issue against the accused person.
Under section 90 with respect to private prosecutions upon
receiving a complaint filed by private prosecutors, the courts may
either issue summons to accused or warrant to compel
attendance in court.
The proviso to section 90 states that a warrant be issued unless
a complaint is made by private prosecutor. Under section 100 a
warrant of arrest may be issued to a person served with a
summons to appear in court. Section 101 warrants of arrest are
issued where the accused disobeys summons.
Section 102 warrants of arrest must be in written form signed
by the magistrate and it must bear the seal of the court. It must
briefly state the charge against the suspect and describe the
suspects details so that the person receiving the warrant knows
the offence charged.
NB: A warrant of arrest is directed to a particular person
ordering him to arrest the person in respect of whom it is issued
and bring them to court. Person is OCS, OCP. Warrant of Arrest
remains in force until either execution or a cancellation by the
court that issued it.
Kingori s/o Kiranditu v R
It was stated that any person or police officer to who warrant is
issued is bound to execute it like the court, which issues the
warrant; he is protected by judicial immunity.

33

Sometimes in private prosecution when the police are unwilling


to arrest a person, once one goes to court a warrant of arrest is
issued the police have to comply.
Section 103, the court issuing a warrant may direct security to
be taken in respect of an offence other than murder, treason, rape
in which case the officer such release such person in court if the
warrant allows for the release of the person on bond.
The warrant of arrest may be directed to the following persons:
1. Police officers usually to one particular officer or officer in
charge or to all other officers in a particular division.
2. To a landowner, manager and farmer of land. Warrant issued
to such persons is to allow them to arrest any person who
enters their land. On arrest they should hand over the
accused to the nearest police officer.
3. By virtue of section 107 the person effecting arrests should
notify the substance of the warrant to the suspect and if he
is required by the suspect and show him the warrant.
Section 22 imposes duty on an occupant of premises or any
person in charge of premises to afford all reasonable facilities of
arrest i.e. to allow the person to enter premises discharging a
warrant arrest, i.e. to allow the person to enter promises to effect
an arrest if there is a reasonable suspicion that the suspect is in
those premises. The facilities should also be provided to such
persons to enable them to search the premises. Where no
reasonable facilities are allowed (I.e. access) the officers may
break in even without a warrant. Only break in when they are not
allowed entry).
Section 22(2) women in occupation of premises who are not
suspects and who by custom do not appear in public should be
given reasonable facilities to withdraw (Muslim Women).
Section 23 allows arresting persons to break out of the premises
to liberate themselves.
The CPC provide elaborate procedure where the arrest has to
be effected outside the jurisdiction of court.
Section 10 The warrant may be forwarded by part or
otherwise to the magistrate within the local limits where the
jurisdiction it is to be executed. The magistrate to whom the
34

warrant is forwarded should endorse it. Endorsement is crucial


(within his jurisdiction). It is his responsibility to cause it to be
executed.
Under section 111 instead of the warrant being forwarded to
the magistrate within whose jurisdiction local limits to which it is
to be executed, the issuing court may direct it to a police officer
to take it for endorsement by a magistrate within the local limits.
NB: the police officer may execute the warrant without the
endorsement if there is reason to believe the delay will be
occasioned by obtaining the endorsement. Officer has to be
executed certificate explaining the same. If it is not so endorsed
and if it is enforced without endorsement, the arrest will no doubt
be unlawful/.
A person arrested outside the local jurisdiction of the issuing
magistrate may be taken before the magistrate within the local
limits of whose jurisdiction the arrest was made this is necessary
to avoid holding the person for more than 24 hours.
Apart from the police, the court of law and private persons,
other tribunals discharging functions of a judicial nature have
powers to issue warrants of arrest e.g. the Rent Tribunal, Judicial
Commission of Inquiry etc. Section 30 of the National Assembly
powers and privileges Act, vest the powers on the members of the
National Assembly to arrest.
SEARCH AND SEARCH WARRANTS
Like arrests, the search of the premises of the suspect and
seizure of the property of the suspect infringes on the
fundamental rights and freedoms of the individuals and in
particular the right to privacy.
The enjoyment of the right to privacy of the freedom for the
invasion of privacy should be weighed against the rest of the
society at large in finding out wrongdoers and redressing crime.
The invasion of privacy of the individual in the interests of the
society should be done properly within the law.
Search are warrants governed by section 118 122 of the CPC

35

A search warrant is defined as an authority to search a place


for evidence of a crime, which is suspected or believed to have
been committed or to make an arrest of a suspected criminal.
A search warrant authorizes the person to whom it is
addressed to enter a place or premises described in the warrant.
If the item is found, it should be seized and taken to a court
having jurisdiction.
Note: Warrant describes the premises to be searched and the
item to be searched for. If the premises are not the right one it is
an illegal search and the owner may commence proceedings on
tortuous liability.
A police officer having reasonable suspicion that there is
evidence in a certain place for the investigating of a crime, he
may apply to the court for a search warrant authorizing him to
search the place.
Under section 118 of the CPC it is necessary that the evidence
of a reasonable suspicion which must be given on oath. The Police
officer must show that there is reasonable ground for suspicion
and given by way of an affidavit sworn by the officer.
Under section 119 of the CPC a search warrant may be issued
on any day including Sunday for urgent matters.
A search may be conducted with or without a search warrant.
Where the same is conducted with a search warrant under section
120 of the CPC there is an obligation on the person in charge of a
closed place or premises to allow ingress and egress in and from
the premises to allow them to enter and to leave for searching.
Failure to provide such allows the police officer to use force to
enter or break out of the premises.
By virtue of section 104,106, 109, 110 and 111 of the CPC on
warrant of arrest also applies to search warrants, i.e.:
1. Warrant should be in the hands of the magistrate or the
judge issuing it and it must be signed;
2. It should bear the seal of the court;
3. It must state the offence against the accused person in
respect of which it is issued;
4. May be directed to one or more police officers or to all other
police officers in the relevant area.

36

5. If it is to be conducted outside the jurisdiction of the court it


must be endorsed by the magistrate within the local limits of
which the search is to be conducted.
6. May be executed without endorsement in courts where there
is delay.
The directions in the warrant must be strictly observed
articles, items not in the warranted should not be seized. Only
what is mentioned unless they are likely to produce additional
evidence as to the identity of the items or they are relevant to the
charge. The seizure of irrelevant articles is legally unjustifiable
and in most cases causes damage to the prosecutions case.
Vivendi v R (1957) EA 355
Appellant is convicted in district court of Bussaga of being in
possession of property reasonably suspected of having been
stolen and failing to give a satisfactory account of possession.
Police was acting on information received. They searched the
house and shop of the appellant looking for a camera and
expensive sunglasses, which they did not find. Instead they found
a tiny box and exposure between under the counter said to have
been left by V 3 months ago. V admitted leaving expensive meter
with the appellant but denied that the meter in question was the
one deposited by him with the appellant. V called as prosecution
witness and denied ownership of the meter found in the shop. He
denied ever depositing the exposure with the appellant. No
search warrant produced by police and the only evidence in the
shop was the oral evidence of the police against him, which was
inadmissible under section 63 of the evidence ordinance. It was
held that it is possible to establish that a particular search was
conducted under the authority of a warrant without proving
contents of warrant.
The evidence did not justify a reasonable suspicion that the
exposure meter had been stolen.
Circumstances where a search may be conducted without
a search warrant
Where a person who is being sought by the police to be
arrested enters a place where the process of getting a search
warrant would give the fugitive a chance to escape, section 22 of
37

the CPC allows the police to enter such a place and search for the
person to be arrested even though they do not have search
warrant.
NB: The police should only carry out a search for the person
when they are in hot pursuit of the person and they are afraid
that he would disappear if they wait for a court to give them a
search warrant.
Section 26 of the CPC empowers the police to detain and
search aircraft, vessels vehicles, and persons and if they have
reason to suspect the same contains stolen property or property
unlawfully obtained. This person may be exercised by other
persons with permission from the commissioner of police e.g.
officers of immigration department, income tax, customs and
excise department.
In all these circumstances the suspicion must precede the
process of stopping a person for a search. Suspicion arising from
the stopping of the search renders the action of the police illegal
under section 26 of the CPC.
Keityo v Uganda (1967) EA 23
Koech v R (1968) EA 108
Section 27. A search on a woman must be done by another
woman.
TOPIC FOUR
CRIMINAL LITIGATION
COMPLAINT AND CHARGE
Introduction
In most criminal cases, proceedings commence at this stage
i.e. by way of indictment or charge. The formal document is
usually referred to as charge in the subordinate courts whereas

38

indictment refers to the form of charge in the High court. The


CPC1 refers to these as charge and information.
What is a charge?
A charge refers to a formal written accusation or complaint
against a person (the accused) for an offence known in law. The
offence must be provided for in law 2. It is drawn by a magistrate
or a police officer and signed as required by law. Since criminal
cases are usually for and on behalf of the Republic, the state is
the party to institute the case; namely through prosecutors or
state counsels. Therefore the title reads as REPUBLIC V. ACCUSED
What is the purpose of the formal charge (rules?)
The Golden Rule is that the charge sheet should inform the
accused person in clear and unmistakable terms of the allegations
against him; in order for him to be able to prepare his defense.
This rule is part of the wider requirement of affording an accused
person a fair trial. Therefore in Nashon Marenya V. Republic

the court emphasized on the need for the charge to be clear and
unequivocal as a way of avoiding confusion as to what the
accused must meet. The court further was emphatic that such a
confusion cannot be said not to lead to a miscarriage of justice. In
the words of Todd J; Charges and particulars should be clearly
framed so that the accused persons know what they are charged
with, and proper references should also be made otherwise
confusion may arise, and if confusion arises, it cannot be said that
failure of justice may not have been occasioned.
1

Criminal Procedure Code


Section 77(8) of the constitution
3
Criminal Appeal No. 786 of 1982 (unreported)
2

39

The law provides for the manner in which a charge is to be


framed. It has three basic parts: commencement, statement of
the offence and the particulars of the offence.
Framing of charges
Section 134 of the CPC provides that every charge or
information must contain and shall be sufficient if it contains a
statement of the specific offence(s) with which the accused is
charged together with such particulars as may be necessary for
giving reasonable information as to the nature of the offence
charged.
Consequently as a statutory requirement the charge sheet must
contain the following:
(i) Statement of the offence
Pursuant to section 137 of the CPC 4 and as part of the wellrecognized principle of criminal law, no person shall be convicted
of a criminal offence unless that offence is defined and the
penalty thereof prescribed in a written law. The statement of the
offence must contain the offence charged together with the law
creating that offence. In cases where the offence is defined in one
section and the penalty prescribed in another it is imperative that
the two sections be quoted in the charge.
(ii) Particulars of the offence
The particulars required are such as will provide reasonable
information as to the nature of the offence charged. This includes
4

Criminal Procedure Code

40

where and when the offence is alleged to have been committed,


the subject matter of the charge and the identity of the accused
and the complainant5. In short it should be sufficient enough to
disclose the offence.
In Yozefu & Anor. V. Republic6 the court emphasized that
the particulars must disclose the offence, and such statement is
enough if it contains a precise statement of the incriminating
factors as the prosecution seeks to prove at the hearing. As per
Spry J A: It is fundamental that every charge should allege all
the essential constituents of an offence. In the present casewe
think that the allegation that the pieces of skin came from an
animal killed in contravention of the Act was an essential
ingredient, and its omission makes the charge defective. The
allegation that the offence is completed once a person is in
possession of a trophy was rejected by the court. From this case it
is clear that one needs to understand the offence before one can
draw up the charge.
FRAMING THE CHARGE
Section 137 Rules with regard to framing of charges:
Statement of the offence based on description of what offence
has been committed.
Particulars are the words which will describe the offender and
it will also briefly describe the particulars of the offence. It will
describe the property or goods which are the subject matter. If
the goods are specific, there will be a proper description of the
goods. The particulars are supposed to reveal the ingredients of
the offence.
5
6

Section 137,criminal procedure code


[1969] E.A 236

41

If there are things like instruments or documents to be


indicated in the charge sheet, Section 137 (e) makes provision
that where it is important to refer to document it shall be
sufficient to describe it without setting a copy thereof. If it is a
cheque for example you dont need to attach a photocopy.
137 (e) where it is necessary to refer to a document or
instrument in a charge or information, it shall be sufficient to
describe it by any name or designation by which it is usually
known, or by the purport thereof, without setting out a copy
thereof;
The issue of joinder becomes relevant depending on the
charge.
A charge must have:
- A Statement of offence
- Particulars the particulars must be clear, concise, must
describe the elements of the offence
Where there is more than one person charged, you can join
persons if they have jointly committed an offence, it must be
clear in the facts that there was unity of purpose. It will depend
on the circumstances, if you want to charge them with jointly as
prescribed at Section 136 of the CPC. Is there a common purpose?
Charge the people jointly.
Particulars
Two men have car jacked a motor vehicle there is no violence
theft of motor vehicle charge the persons with committing the
theft of motor vehicle.
Sura Mbaya will be charged jointly with others not before the
court. Joinder means that there is more than one offence in the
same transaction so one has to join all the offences in one charge
sheet. Charge him separately on another charge sheet for
stealing a Toyota Corolla
Particulars
Sura Mbaya jointly with others not before the Court
Second count: Theft of Toyota Corolla
Where facts are not clear on lets say sexual assault, charge
with the highest charge which would be rape. There is provision
that where someone is charged with rape and evidence is
42

adduced that a lesser offence was committed the court can


reduce the charge to the lesser offence. The court cannot
enhance a charge but it can reduce the charge depending on the
evidence.
COUNT NO. 1

Theft of Range Rover

COUNT NO. 2 Theft of Toyota Corolla


Each statement of offence must attract its own particulars. A
charge is duplex where in one charge there is more than one
offence. The rule of joinder of counts and joinder of charges.
ALTERNATIVE CHARGE
It is different from a count, if in the main charge there is not
enough evidence adduced, then there is an alternative charge to
which evidence can be adduced that another offence occurred.
In doctrine of recent possession An alternative charge can
only be brought in respect of the person in whose possession the
goods have been found.
COUNT NO. 1
STATEMENT
PARTICULARS
COUNT NO. 2
STATEMENT
PARTICULARS
ALTERNATIVE CHARGE
STATEMENT
PARTICULARS
COUNT NO. 3
43

STATEMENT
PARTICULARS
The good rule is to charge with Rape as count No. 3 knowing
very well that if there is no evidence to support rape the court will
if there is evidence reduce the charge to indecent assault.
In ones legal opinion they will have given all the details and the
charge that one drafts is based on ones legal opinion.
Alternative charges are comparative and therefore the court
cannot find you guilty of the main charge as well as the
alternative. The court will not find a person guilty of theft and
then guilty of possession. In terms of making findings, as a court
one should never find somebody guilty of the main charge and
the alternative.
There is a provision for amendment of charges which means in
the course of trial: Section 214 of the CPC states that where, at
any stage of a trial before the close of the case for the
prosecution, it appears to the court that the charge is defective,
either in substance or in form the court may make such order for
the alteration of the charge, either by way of amendment of the
charge or by the substitution or addition of a new charge, as the
court thinks necessary to meet the circumstances of the case:
This section is to the effect that if it appears to the court that
the charge should be amended, it can move itself and require the
prosecutor to amend the charge. Alternatively the prosecutor can
make an application to the court to amend the charge. A new
charge is brought with red under-linings to show that it has been
amended.
Substitution means that there is a totally different charge. If
for example someone has been charged with dangerous driving, if
thereafter the victim of the Accident dies, the prosecution can
substitute it with one of causing death by dangerous driving and
they can substitute the charge.
If in the course of evidence it emerges that other charges that
ought to have been drafted were not drafted the court can direct
that the other charges be drafted, the police will then go and draft
and bring a new charge sheet. Provided where a charge is so
altered the court shall call upon the accused person to plead to
44

the additional or substituted charges. The court must take a fresh


plea giving the accused to admit or deny.
Where the charges are altered the accused may demand that
the witnesses or any of them may be recalled and give evidence
afresh or be further be cross-examined by the accused or his
advocates. This means that once a charge is altered or amended
the accused is at liberty to require the witnesses who had already
given evidence to be recalled to either given evidence afresh or to
be re-examined.
Variance between charge and evidence, and amendment of
charge.
In the court file in the proceedings it must be indicated that the
accused person; that Section 214(1) is complied with.
The charge will be read and explained to the accused person.
The accused person is required to respond. 214(2) court file
should indicate that the accused has the right to have the
witnesses recalled, it should all be recorded down and the court
should proceed to recall the witnesses.
214(2). Variance between the charge and evidence adduced
in support of it with respect to the time at which the alleged
offence was committed is not material and the charge need not
be amended for the variance if it is proved that the proceedings
were in fact instituted within the time (if any) limited by law for
the institution thereof.
One of the most common variances is the variance of time,
this is due to time since proceedings take place long after the
offence. The witnesses usually give varied times. It has taken
awhile and there will be variance of time. The provision is saying
that variance of time should not be a material thing.
214(3) where an alternation of a charge is made under sub
section (1) and there is a variance between the charge and the
evidence as described in subsection (2), the court shall, if it is of
the opinion that the accused has thereby misled, deceived,
adjourn the trial for such a period as may be reasonably
necessary.
The court shall adjourn the trial for such a period as may be
reasonably necessary. If the substitution or amendment brings in
a different charge, then one would have been misled and will
need time to reorganize themselves. For example if you beat up
45

somebody and within the stipulated time they later die, one is
then charged with manslaughter. Like when Pattni was charged
with murder of an employee it takes one by complete surprise
and they usually will need time to go and organize themselves.
DUPLICITY OF CHARGES
Blacks Law Dictionary defines duplicity as charging of the
same offence in more than one count of an indictment or the
pleading of two or more distinct grounds of complaint or defence
for the same issue. It further states that in criminal procedure this
takes the form of joining two or more offenses in the same count
of an indictment.
It is a legal requirement that a charge should not suffer from
duplicity. Duplicity occurs where the charge or count charges the
accused of having committed two or more separate offences 7; it is
said to be duplex and barred for duplicity. Duplicity can be
avoided where a statute creates offences in the alternative,
Section 86 of the Traffic Act provides for offences created in the
alternative e.g. causing death by driving a motor vehicle:
a) driving recklessly;
b) driving at high speed.
c) Driving in a manner dangerous to the public.
d) Leaving the motor vehicle on the road in a manner
dangerous to the public.
All these are stated in the alternative so that you cannot be
charged of two or more but only one of the alternative.

Archbold Jf: Pleadings, Evidence and Practise in criminal cases, London, Sweet and Maxwell ,(5th ed), 1962 at
page 53

46

A count charging the accused of causing death by driving the


motor vehicle recklessly and at high speed is duplex. The charges
should be expressed in the alternative:
Mwamdalafu v R8 The appellant was charged with the
alternative counts of the offence of arson and attempted murder.
The particulars of the charge of arson alleged that the appellant
had set on fire two houses, one belonging to A and the other
belonging to B. The houses stood more than 100 yards apart. He
was charged with one count of murder and one count of arson.
The particulars stated that he attempted to cause the death of A
and his wife by setting on fire 2 houses one As and the other Bs.
Evidence showed that the appellant had attempted murder on 2
occasions. The first, he burnt As house and when A took refuge in
Bs house, he burnt Bs house as well. The question was whether
there was duplicity.
It was found that yes there was duplicity, with respect to the
arson charge as there were two offences arising from two acts of
arson. Secondly, there was also duplicity with respect to the
attempted murder hence there ought to have been two charges of
attempted murder. Thirdly, the attempted murder counts should
be framed in the alternative. There ought to be four counts and
not two but the second attempted murder count should be in the
alternative.
In Saina v R9, The appellant was charged on a single count
with the offence of housebreaking, theft and handling stolen
8

[1966] EA 459

[1974] EA 83

47

property. He was convicted but on appeal the High Court found


the charge barred for duplicity. It was found that one count
charged 3 separate offences i.e. shop breaking contrary to section
306(a) of the penal code, handling stolen goods contrary to
section 322 of the penal code. It was forth held that each offence
should be set out in a different count. The charge of handling
stolen property is in the alternative.
In Bhatt v R

10

, The appellant was charged with being in

possession of obscene material, contrary to section 181(a) of the


penal code. It was alleged that the appellant for the purpose of or
by way of trade for the purpose of distribution or public exhibition
had in his possession 37 photographs of an obscene nature which
could tend to corrupt the morals of any person etc. Section 181 11
talks of alternative purposes.
It was held that (on appeal) the particular motive why the
appellant had the photos should have been averred to the
purposes. It was wrong for the charge to refer to many purposes.
The averment of several purposes made the charge barred for
duplicity. Each of the several particulars set out in the charge
constituted a separate offence. Charging the accused in this
manner prejudices his defense.
In Koti v R

12

, the appellant was charged and convicted of

wrongfully attempting to interfere with or influence witnesses in a


judicial proceeding either before or after they had given evidence
contrary to section 212 (1) of the penal code. On appeal, it was
10

(1960)
Criminal procedure code
12
(1962) EA 439
11

48

held that the charge was duplex, i.e. it charged with two offences;
interfering with the witness before and after. They should state if
it was before or after. If it was before and after there should been
two counts. Duplicity is allowed in certain circumstances. There
are exceptions to the general rule that courts should not charge
an accused with more than one offence.
Exceptions to the General Rule
1. Where the form of preferring a charge is allowed by statute.
The second schedule of the CPC authorizes charging of 2
offences in one count in respect of:
a. The offence created under section 330 of the Penal
Code in respect of false accounting;
b. Second schedule authorizes offences creates under the
section 304 and section 379 i.e. burglary and stealing.
Form 9, in the second schedule.
In Pope V R
accounting false

13

the accused was charged with fraudulent

accounting contrary to section 330(a) of the

penal code. In the particulars it was alleged that he falsified or


was privy to the falsifying of a document .He was convicted. On
appeal he argued that the charge was bad for duplicity because it
charged two offences in one count. The court of appeal held that
the charge was not duplex for it only charged one offence and
was in the form authorized by the second schedule to the criminal
procedure code.

13

(1960) EA 132

49

2. Where the separate offences are charged conjunctively using


the word and as opposed to or if the matter relates to one
act. In Gichinga v R the appellant was charged with driving
a car recklessly. In the particulars, it was stated that he
drove in a reckless manner and at a speed which was
dangerous

to

the

public

having

regard

to

all

the

circumstances of the case contrary to section 86 of the


Traffic Act.14 The Act employs or rather than and. The
magistrate acquitted the accused because of duplicity as it
alleges the commission of two offences. On revision by the
high court, it was held that the charge was not duplex and it
had been expressed conjunctively and it referred to one
incident or act i.e. appellants manner of driving at the
relevant time. If it had been expressed using the disjunctive
OR. In a. reckless manner or at a high speed it would have
been duplex.
Effects of Duplicity
The law is not clear. There are two opposing views:
1. One view holds that duplicity is an incurable defect which
can be cured by amending the charge hence if found to be
duplex, the accused should be discharged. This was seen in
Cherere Gukuli v R

15

and followed in Saina v R16. Those

who subscribe to this position hold that a count which


charges for two counts is barred for duplicity and a
14

Cap 404 Laws of Kenya


(1955) 22 EACA 478
16
[1974] EA 83
15

50

conviction based on it cannot stand. In Kasyoka V R17, the


charge sheet read that the accused had dishonestly
received or retained a cheque knowing or having reason to
believe it to have been stolen. The appellant had been
convicted of among other offences handling stolen property
contrary to section 322(2) of the Penal code 18. The state
argued that the fact that a charge was defective was not
necessarily fatal to a conviction or charge the real test being
whether the accused was able to understand the charge.
Held the appellant was convicted on a duplex charge and no
one can state for sure which of the two offences was
committed.
2. The other view holds that the true test should be whether
injustice or prejudice has been occasioned on the accused by
the duplicity so that where the accused suffers no prejudice;
conviction of duplicity should stand. This school relies on
section 382 CPC which provides for finding of a sentence or
order issued by a court should not be reversed or altered on
appeal or revision on account of error omission or irregularity
in the charge unless the error omission or irregularity has
occasioned a failure of justice. This school of thought was
followed in:
a. Kababi v R19. The appellant was charged in a single
count with causing the death of three persons by
dangerous driving. He was convicted. He appealed,
17

(2003)KLR 406
Cap 63 Laws of Kenya
19
(1980) KLR 95
18

51

challenged the decision of the court that it was based


on a barred charge. It was held that the failure to
charge or to file three separate counts did not occasion
injustice though there was duplicity. The conviction was
upheld.
b. Koti v R20: Appellate court found the charge was
duplex but declined to interfere because it did not
occasion any injustice. It was held that the test in
deciding whether a failure of justice had occurred was
whether the accused had been prejudiced in his trial.
c. Mwandalafu v R21 : the appellate court found that the
arson charge was duplex but that it did not occasion
any injustice. The court relied on section 382 of the
Tanzania Criminal Procedure Code.
d. Mwangi v R22. In this case, the appellant had been
found in possession of a firearm stolen thirteen months
earlier when he was in prison. He had been convicted
on a single charge of being in possession of the
revolver

and

the

ammunition

without

firearms

certificate and of receiving the revolver knowing it to


have been stolen. The appellate court found that the
charge was duplex but that it had occasioned no
injustice. Bennet J opined that the firearm and the
ammunition could be charged in one count.

20

(1962) EA 439
[1966] EA 459
22
[1974] EA 83
21

52

CAPITAL CHARGES
A capital charge is a formal written accusation of an
offence drawn by a magistrate or by a police officer and signed as
required by law for the purpose of use in preliminary proceedings
or in a proper trial. It lies against all persons who actually commit,
who procure or assist in the commission of any crime or who
knowingly harbor a felon.23Accordingly s
Framing of capital charges
The Criminal Procedure Code at Sec.135 (1) makes provision
for the joinder of counts. It provides that:
Any offences whether felonies or misdemeanors, may be
charged together in the same charge or information if the
offences charged are founded on the same facts, or form or are
part of a series of offences of the same or similar character.
Despite the above provision, in framing a capital charge the
general rule of practice is that no other count should be joined to
a count which carries a death penalty in the event of conviction
except where the additional count is based on precisely the same
facts as the more serious charge. In line with this, the Court of
appeal has long held that it is undesirable to charge an accused
person on more than one charge of murder. 24That rule has been
followed in subsequent cases. Furthermore, the same court has

23

Dr. P.L.O. Lumumba[2005]A Handbook on Criminal Procedure in Kenya, LawAfrica Publishing (K)
Ltd,Nairobi,48
24
Mongolia v. R [1934] 1 EACA 152

53

also laid down that a charge of murder ought not be laid with a
count of another offence.25
In the case of Yowana Sebuzikira26 The Court of Appeal
upheld its ruling that there should be no departure from the
established rule of practice that no other count should be joined
to a count of murder or manslaughter, except where the
additional count is based on precisely the same facts as the more
serious charge.
With regard to robbery with violence, the case of Wanjala &
another v. R27 applies. In that case the appellants were charged
with two charges of capital robbery which was a departure from
the general rule but the Court of Appeal was of the view that no
prejudice could have been caused to the appellants as the
robberies formed part of the same transaction and the evidence
in support of one charge was relevant to the other.
In the case of treason, whether the same rule applies is a
matter of conjecture. In practice, however, the treason charges
brought in Kenya have not contravened this rule. It is noteworthy,
however, that in a treason charge, apart from alleging the
particulars of the offence, the prosecution must also state the
overt acts in the information. For instance, in the case of R v.
Raila Amolo Odinga & two others 28the treason charge was
drafted as follows:
CHARGE SHEET
25
26

Valezi Kashiza v. R [1954] 21 EACA 389


[1965]EA 685

27
28

54

Count 1
Statement of Offence
Treason contrary to Section 40(1) (a) (iii) and (b) of the Penal
Code.
Particulars of Offence
1. RAILA AMOLO ODINGA AND 2. OTIENO MAK-ONYANGO.
On diverse days between THE 15TH DAY OF July 1982 and 1st
day of August,1982, in Kenya, being persons owing
allegiance to the Republic of Kenya, jointly compassed,
imagined, invented, devised or intended to overthrow by
unlawful means, the government and expressed, uttered or
declared such compassings, imaginations, devices or
intentions by the following overt acts or deeds:
OVERT ACTS- RAILA AMOLO ODINGA AND OTIENO MAKONYANGO.
1. RAILA AMOLO ODINGA: In mid-July, 1982 at Nairobi loaned
Senior Private

Hezekiah Ochuka his Peugeot 504

Registration Number KVZ 642 to assist him in making


preparation to overthrow the government.
2.RAILA AMOLO ODINGA: On or about 18th day of July, 1982
visited the house of Senior private Hezekiah Ochuka at Umoja
estate in Nairobi and discussed plans to overthrow the
government with Senior Private Hezekiah Ochuka and others

55

3.OTIENO MAK-ONYANGO: On or about 20th day of July, 1982


inspected the house of Albert Vincent Otieno at Ngong Road in
Nairobi with a view to obtain the use of the house as Command
Headquarters for a group planning to overthrow the government.
The requirement that overt acts be stated in the information is
intended to avoid uncertainty in such a serious and sensitive
charge so as to enable the accused to prepare his defence.
Further, it has been submitted that the reason for the requirement
that no other count should be joined to a capital count is that
such a charge is so serious and complicated that the defence
ought not to be embarrassed by the necessity of dealing at the
same time with other matters, whether of equal or of minor
gravity.29
In cases where an offence is created by one section of the law
and the punishment is provided for in another section, it is the
practice to specify in the count both the punishment and the
section creating the offence. This is the practice in murder cases.
In Pitalis Oval Mambia v. R,30 the appellant was charged with
murder which was expressed in the following terms:
Statement of offence
MURDER contrary to Section 204 as read with 203 of the Penal
Code.
Particulars of offence

29
30

Alkaeli v. R
Criminal Appeal No.206 of 1987, C.A, Kisumu

56

PITALIS OLAL MAMBIA: On the 19th day of June,1984 at Wangaya


sub-location, South West Kano Location in Kisumu District of the
Nyanza Province, Kenya, Murdered Morris Babu.
The rule that it is better to specify in the count the
punishment section rather than the definition section has a long
history.31
ALTERNATIVE CHARGES
This is a charge preferred against the accused person
instead

of

the

former

charge(offence).This

is

justified

in

circumstances where the factors attending the offence in question


are not very clearly focused with the consequence that it is not
easy to discern which offence was actually committed. The rule
relating to duplicity prohibits a situation whereby two substantive
offences are charged under the same count and ordinarily even in
cases where one charge has several counts to it, it is a mandatory
requirement of the law that the counts should be set out
separately and the two should be numbered consecutively. 32
A good example is where a person is thought to have
stolen property contrary to section 275 of the penal code yet the
prosecution is not certain that the accused actually stole .In this
scenario, the alternative of handling suspected stolen property
contrary to section 322 of the penal code may be preferred
against the accused.
31

32

Cosma s/o Nyadago v. R [1955] 22 EACA,450 (C.A)


Lumumba PLO, A handbook in criminal procedure in Kenya (Law Africa, Nairobi 2005) pg.62.

57

In Bennault Oinamo V R (KLR HCK) the appellant was


charged with unlawfully obtaining credit by false pretences and
on appeal it came to light that the offence with which he was
charged with could not amount to a false pretense in law but
there was evidence that might have supported obtaining credit by
means of fraud other than by false pretenses.
The High court ruled that in those circumstances the prosecution
should have laid two separate charges namely; one by obtaining
credit by false pretenses and two by obtaining credit by fraud
other than by false pretenses.
It is also proper to charge in one count the offence of incitement
to violence with an alternative charge of creating disturbance in a
manner likely to cause a breach of peace .However the trial court
is not in law permitted to make a finding on the alternative charge
when a finding has been made in the main charge (this was held
in the case of Wainana V R

33

In Kigen Arap Chemoiwa V R

34

, the court determined that if

the prosecution is in doubt as to whether the accused has


completed an offence, it is desirable to charge him with an
attempt of the completed offence because it is always open to the
trial court to convict on an attempt upon a charge of the
completed offence.
33

34

(1973) E.A 182 (ILCK).


(1962) E.A 684 (SCK).

58

Alternative charges may be waived if the offence preferred arose


from one transaction
In R V Chow (1965) 1QB 598, an English court considered that
where a statute creates two rather than three offences that is
(recklessly or dangerously driving) held that even if there
are separate

offences,

it

is

impossible

to

charge

them

conjunctively if the matter relates to one single incident.


From the foregoing, it is clear that alternative charges are a
means to the end of achieving justice, without the mischief of
duplicity.
CONSPIRACY
Definition of Conspiracy given in the case of Crofter Hand
Woven Harris Tweed Co Ltd V Veitch, Viscount L.C said:
Conspiracy when regarded as a crime is an agreement of
two or more persons to effect any unlawful purpose . . . and
the crime is complete if there is such agreement.
There can also be conspiracy to do a lawful purpose by unlawful
means. Conspiracy is an inchoate offence. Inchoate meaning just
begun or undeveloped. Inchoate offences permit intervention at
an earlier stage before any harm has been done but where the
accused begins to manifest his criminal intention overtly.
For the actus reus, parties must have at least reached a decision
to carry out the unlawful object.
However reaching an agreement /decision is essentially a mental
operation, though manifested by some acts of some kind. what
59

has agreed to be done and not what in fact has been done.
Section 393 of the Penal Code

35

states:

Any person who conspires with another to commit any


felony or to do any act in any part of the world which if done
in Kenya would be a felony, and which is an offence under
the laws in force in the place where it is proposed to be
done, is guilty of a felony and is liable if no other
punishment is provided to imprisonment for seven years, or
if the greatest punishment to which a person convicted of
the felony in question is liable is less than imprisonment for
seven years then to that lesser punishment.
Common Elements
Agreement: There must be an agreement between two or
more persons to effect the particular prohibited purpose. The
agreement could be express or implied. In the case of R v
Karia,

36

it was held that the existence of an agreement may

be inferred from the facts.

The offence of conspiracy is complete as soon as the parties


agree to effect the unlawful purpose.

Conspiracy will

continue to subsist as long as they agree. It will only


terminate

on

its

completion

by

performance

or

by

abandonment or frustration.
One can join the existing conspiracy (i.e. become party to it
and it is not necessary for all the parties to a conspiracy to
be in contact with each other. What is necessary is that all
35
36

Cap 63, Under Chapter XLI Section


R v Karia 16 E.A.C.A 116

60

parties

to

conspiracy

have

common

purpose

communicated to at least one other party to the conspiracy.


There must be at least two parties to the agreement but the
other need not be identified. If all the other conspirators are
acquitted, the one remaining conspirator must also be
acquitted.
In the case of Mawji v R,37 the Privy Council held that the
English rule that a husband and a wife could not commit
conspiracy applied to all valid marriages, including polygamous
marriages. In conspiracy both husband and wife are regarded
as one person.
Under Section 394 of the Penal Code,
Any person who conspires with another to commit a
misdemeanor, or to do any act in any part of the world which if
done in Kenya would be a misdemeanor and which is an
offence under the laws in force in the place where it is
proposed to be done, is guilty of a misdemeanor.
Section 395 deals with other conspiracies. It states:
Any person who conspires with another to effect any of
the purposes following, that is to saya) To prevent or defeat the execution or enforcement of
any written law; or
b) To cause injury to the person or reputation of any
person or to depreciate the value of any property of any
person ;or
37

Mawji v R

61

c) To prevent or obstruct the free and lawful disposition of


any property by the owner thereof for its fair value; or
d) To injure any person in his trade or profession ;or
e) To prevent or obstruct by means of any act or acts
which if done by an individual person would constitute
an offence on his part, the free and lawful exercise by
any person of his trade, profession or occupation ;or
f) To effect any unlawful purpose; or
g) To effect any lawful purpose by any unlawful means, is
guilty of a misdemeanor.
An example of a criminal conspiracy to make lawful protests by
unlawful means was seen in the case of R v Zulu38. In this case
the accused was charged with conspiring to injure the Ndola
Municipal Council in its trade contrary to the Zambian Penal Code,
by urging people to boycott its beer. The court held that it did not
matter that the ultimate object of the accused was to make a
lawful protest, if they did this by employing unlawful means, i.e.
boycotting to cause financial injury to the Council.
Under Section 317 of the Penal Code, Any person who conspires
with another by deceit or any fraudulent means to affect the
market price of anything publicly sold or to defraud the public or
any other person whether a particular person or not, or to extort
any property from any person is guilty of a misdemeanor and is
liable for imprisonment for three years.
38

R v Zulu [1961]R.&N.645(N.R)

62

In the case of Scott V Metropolitan Police Commissioner, 39 D


agreed with the employees of cinema owners that in return for
payment, they would abstract films without the consent of the
employers or owners of the copyright, so that D could make
copies and distribute them for profit. The Court held that D was
guilty of conspiracy to defraud. The House of Lords said:
an agreement by two or more by dishonesty to deprive a
person of something which is his or to which he is or would
be or might be entitled and an agreement by two or more
by dishonesty to injure some proprietary right of his suffices
to constitute the offence of conspiracy to defraud
The general rule of practice is that it undesirable to charges
offences of conspiracy where specific offences are available. This
position is mainly for two reasons; first is because conspiracy has
matured into a known specific offence hence preferable to charge
the offence disclosed by the evidence 40.; secondly, in a charge of
conspiracy, there has to be at least two accused persons. It has
held to be improper to join other offences to a charge of
conspiracy especially where the conspiracy charge covers the
substantive offences.41
JOINDER OF CHARGES/COUNTS
The legislative cushion upon which several counts may be joined
Sec. 135(1) of the CPC

39

[1975] AC 819[1974]3 All ER 1032


Procedures in Criminal Law in Kenya by Momanyi Bwononga
41
Uganda V Milenge & Anor (1970) E.A 269 (CA)
40

63

This provision was judiciary interpreted in the case of Ralph V


Dalip Singh

42

the appellant had been charged jointly with

another with the theft of property belonging to the Kenya Uganda


Railway and convicted of conveying stolen property. In the second
count the appellant was charged alone and convicted of bribing a
police officer in order to procure the release .It was adduced in
evidence that the bribe had been given very shortly after the
arrest of the two men. On appeal, it was argued on behalf of the
appellant that there had been misjoinder of offences because
theft and bribery were not offences of a similar character. It was
held that although the two offences were different in character,
they were founded on the same facts as the evidence clearly
demonstrated that the bribe was offered within a very short time
after the appellants were had been arrested.. This demonstrates
that it is not necessary that the offences are of the same
character and nature as a condition precedent to their inclusion in
one

charge

under

notwithstanding

different

sec.135(1)

counts.

which

The

above

provides

any

is

true

offenses

,whether felonies or misdemeanors may be charged together in


the same charge or information if the offences charged are
founded on the same facts ,or form part of a series of offences of
the same or similar character
In Kamwana s/o Mutia V R43, the question which arose was
whether the trial would be a nullity where there was a joinder of
42
43

1943 1 EACA 121


(1952) EA 471

64

counts for dissimilar offences in one charge sheet. The appellant


appealed against conviction and sentence on three counts
involving

theft,

breaking

and

entering

premises,

and

possession of bhang. The fourth charge was not treated as an


issue at the trial but when the appellant had been convicted on
the other three counts, he asked that this offence be taken into
consideration whereupon the magistrate purported to convict him
of this offence and composed for it a separate sentence.
On appeal, the supreme court of Kenya held that the count
charging the appellant with possession of bhang shouldnt have
been included in the same charge sheet with the other three
dissimilar counts .but since no injustice resulted from the
improper joinder, the trial of the other three should not be treated
as a nullity
So long as the anomaly of misjoinder does not occasion an
injustice courts are ready to disregard the impropriety of
technicalities and deal with substantial justice. This position
prevails even in English courts .In R v M (1938)44 the appellant
was convicted upon an indictment which charged four offences, 2
of rape of a young girl on 2 occasions, a third of stealing from the
girls father and a fourth of indecent assault on a married woman.
He appealed on the ground that the two charges of rape and
indecent assault should not have been tried together. However,
the court only ruled as to the desirability of the two dissimilar
offences being tried and charged separately and upheld the
44

2 ALL ER 516

65

conviction noting that the impropriety did not occasion a


miscarriage of justice to the accused.
JOINDER OF PERSONS
Section 136 of the Criminal procedure Code spells out the
circumstances under which persons may be joined as co-accused
persons. Persons who join in the commission of an offence may in
law be jointly indicted for it or each of them may be indicted
separately.45
In Nathan V R

46

the appellant who was a travel agency

proprietor was charged together with a public officer on a number


of counts. He was convicted on one count of wrongfully and
corruptly giving money to a public officer. The officer was
convicted in the same trial for receiving the said bribe. On appeal,
it was held by the East African court of appeal that there had
been no such misjoinder as the concatenation of events was
uninterrupted and therefore the offences constituted the same
transaction.
In Yakobo Uma and another V R47 , the two appellants were
charged and tried jointly for the offence of doing an act intended
to cause grievous harm Only the first appellant was charged on
the second account. The allegations in the particulars showed
that the incident involving the first appellant occurred on a
different date and place and with a different weapon from the one
said to involve the second appellant. The complainant was
45

Criminal Procedure in Kenya by PLO Lumumba at page 64


[1965] EA 777
47
[1963] EA 542
46

66

however the same in each count.. On appeal, Sir Udo Udoma CJ


ruled that the charge as laid down was bad in law for misjoinder.
AMENDMENT OF CHARGES
Sec 214(1) of the C.P.C Provides where at any stage of a trial
before the close of the prosecution case, It appears to the court
that the charge is defective either in form or substance, the court
may order for its amendment to bring it in line with required style
Once the charge has been amended, an accused person should
be called upon to plead to the amended charge.
However, a simple variance between the charge and the
evidence adduced (for
Example with respect to the time for which the alleged offence
was committed) is immaterial and the charge need not be
amended, especially if it is proved that the proceedings were
instituted within the time (if any) limited by law for the institution
thereof..
Sec275 (1)48 provides for the amendment of information, every
objection to information for a formal defect on the face thereof
shall be taken immediately after the information has been read
over to the accused.
When information is amended a note of the order for the
amendment shall be endorsed on the information and the
information shall be treated for all purposes of the proceedings as

48

Criminal procedure code

67

having been filed in the amended form as provided in Sec


275(3)49.
Where such an amendment is made, the accused shall be
required to plead afresh to the charges. The court is thus required
to inform the accused of his right to plead to the new charges and
also to recall any of the witnesses who have already given
evidence for the prosecution for purposes of cross examination in
light of the amended charges.
The purpose of this is to give the accused an opportunity to
prepare his defense in the light of the amended charge.
The position at Kenyan law is that the courts can amend the
charge in the course of a trial but this should be done at the
earliest opportunity before the close of the prosecution case. 50
However some East African cases suggest that an amendment
can be done even after the close of the prosecution case. In
Maulidi Abdalla Change V R51 a charge was amended at the
close of the defence case with the result that a new charge with a
heavier penalty was introduced. Sir Ralph Windham stated
interalia that a charge can be substituted even after the close of
the defence case, but the substituted charge can only be allowed
if it will not occasion injustice to the accused person.
In Benjamin Sauzier VS R52, the appellant appealed against his
conviction of attempted arson. The appeal was dismissed but the
appellate court commented on the aspect of amending the charge
49

Criminal procedure code


Section 214 CPC
51
(1964) E.A122,
52
(1962) EA 50
50

68

even after the prosecution case .In this case, at the end of the
prosecution, the evidence had disclosed attempted arson only.
The trial judge then upheld a submission of no case to answer,
but having regard to the provisions of the C.P.C ordered that the
charge be amended to attempted arson and took the appellants
plea on the amended charge.
The court held inter alia that it is not necessary to amend a
charge of committing a full offence in order to convict an accused
person of an attempt. However, in amending a charge, the court
is not entitled to make a new case other than the one put forward
by the prosecution.
QUASHING OF INFORMATION
It was the rule of common law that if an indictment or inquisition
was bad on the face of it, or there was any such insufficiency
either in the caption or in the body of an indictment as would
make erroneous any judgment whatsoever given or any part
thereof , the court may in its discretion quash the indictment 53.
For instance a number of persons may not be indicted jointly for
an offence which must be several. In R v tucker54 ,an indictment
against six people for unlawfully exercising a trade that was
quashed because it was a distinct offence in each case and could
not be made the subject of joint prosecution.
In R V Phillips55 judgment was arrested on an indictment of six
persons (to which four pleaded and were convicted) on the
53

See Arch bold Jf: evidence, pleadings and criminal practice, London, sweet and Maxwell, (5 th edition) 1962 at 88.
4 Burr 2046
55
2 str 921
54

69

ground that the offence was in its nature several and could not be
indicted together for it.
It has however been stated in R v The chairman of London
Sesions ex parte Downes56 that a court is not entitled to quash
an indictment because an examination of the dispositions has led
it to the conclusion that the prosecution would not succeed on the
account.
In Kenya section 276 of the criminal procedure code provides for
quashing of information. it is provided that if information does not
state , and cannot by amendment authorized by section 275 be
made to state an offence of which the accused has had notice , it
shall be quashed either on a motion made before the accused
pleads or a motion made in arrest of judgment .
In the event that section 276 is invoked, a written statement of
every such motion shall be delivered to the registrar or other
officer of the court by or on behalf of the accused and shall be
entered upon the record.
If

an

information

does

not

state

and

cannot

even

after

amendment be made to state an offence for which the accused


has had notice, it shall be quashed either on a motion, made
before the accused, pleads or on a motion in arrest of judgment
(276(1)) CPC. The motion shall be written and delivered to the
registrar or other officer of the court (section 276(2) CPC
CONCLUSION
56

1954 1 QB 1

70

From the foregoing, it is clear that the person framing a charge


must be conversant with the issue. Example is when a person
enters a house with the intent to commit a felony contrary to
section 304 of the Penal Code. If the entering was daytime, then
the offence will be housebreaking if on the other hand the felon is
alleged to have been committed at night, the proper offence to
charge will be that of burglary57.
It is in the spirit of The Constitution to ensure justice for all. It
therefore follows that:
The criminal trials must be dealt with expeditiously.
If the charge as framed does not clearly state the offence
as charged, no adequate opportunity can be said to have
been offered to the accused to prepare his defense.
Failure to make the offence well known to the accused leads
to contravention of the constitution and consequently
miscarriage of justice.
If a defect of a charge is of such magnitude as to occasion
failure of justice, it is unconstitutional and not even a plea of
guilty to it can stand..

TOPIC FIVE
IDENTIFICATION PARADES
The Police Form No. 156 pursuant to Force Standing Orders issued
by the Commissioner of Police under Section 5 of the Police Act
57

Section 304(2) of the Penal Code(Cap 63)

71

Cap 5 of the Laws of Kenya which is invariably used for the


conduct of identification parades provide for this procedure in
criminal law.
1. DEFINITION
An identification parade (herein after ID Parade) refers to a
procedure in criminal law where a group of people with similar
characteristics who must be at least 8 in number including the
one suspected of the crime, are assembled to discover whether a
witness can identify the suspect whom they allegedly saw during
the commission of a crime and whom they had previously
described in sufficient detail to the police.
In Njihia v Republic

58

where the complainant stated that he had

identified the appellant then at an ID parade in which the


appellant and two other suspects had been lined with eleven
other persons and in the court during the trial, the Court of
Appeal held that the ID parade conducted in this case was not
proper because contrary to the ratio of one suspect to eight
persons which is stipulated in the Police Force Standing Orders,
three suspects had been lined with eleven others. This was
mathematically too low a ratio to exclude the chance of random
guesswork.

58

[1986] KLR 422


72

The court observed that Police Force Orders require a ratio of one
to eight as the minimum; and indeed in many parades the ratio is
between one to ten and one to twelve.
2. PURPOSE
The importance of identification evidence cannot be negated in
criminal procedure. Without prior identification of a suspect who
later becomes the accused person, there cannot be a proper
conviction.
Therefore, it is a trite law that an accused person must be clearly
identified. If there is no identification then the accused cannot be
convicted unless there are other factors connecting him with the
offence.
In R Vs Mwango59, it was held that an identification parade
must be conducted when the identity of an accused is doubtful.
However, where a suspect is known to the witness then there is
no need for an ID parade to be conducted as this becomes an
instance of recognition as opposed to identification of the suspect.
In Ajode- Vs Republic60, the Court of Appeal comprising Gicheru
CJ, OKubasu

JA and Otieno Onyango Ag JA , held that it is

established law that there is no need for an ID parade to be


conducted in cases where the witness knows the suspect as the
witness will merely be merely demonstrating his recognition of
the suspect and will not be identifying him.
59

60

[2004]2KLR 81
73

So that in
The purpose of conducting ID parades can be said to be twofold:
a) They

are

held

to

enable

eye

witnesses

identify

suspect/suspects whom they allegedly saw prior to a trial


being held.
This is fundamental because dock identification is generally
considered to be valueless unless a properly conducted ID Parade
is held to justify the suspects being charged with the crime as
stated by the Court in Ajode vs Republic61. The court further
held that a court should not place much reliance on dock
identification unless it has been preceded by properly conducted
identification parade.
In Wafula & 3 Others vs Republic

62

the court held that there

had been a failure on the part of the police to investigate the case
properly, particularly the failure to conduct identification parades
so that the dock identification by the witness nearly 14 months
after the commission of the crime. This identification was
therefore valueless.

b) They

are

held

to

facilitate

due

process

which

is

fundamental requirement in criminal law.


Section 77 of the Constitution cements an accused persons right
to a fair trial. This right can be said to include the right to have an
61
62

Ibid . See also


[1986] KLR 627

74

ID parade conducted in accordance with set down procedure prior


to the accused being charged.
The Kenya Police Force Standing Orders at Form no 156 has set
down procedures which if flouted will negate the validity of an ID
parade and will lead to the release of the accused as they cannot
be properly convicted because their constitutional rights were
trampled upon.
In the case of John Musyimi Mutua & Wambua Mutie V
Republic63 where witnesses identified one appellant in an
identification

parade

two

years

after

the

crime

and

no

Identification parade was conducted for the second appellant. The


court held that the Admissibility of such identification was shaky
and could not be relied upon. The conviction of both was quashed.
In essence this illustrates that identification evidence is an
essential aspect in criminal procedure, for a proper conviction.
3. PROCEDURE
As stated above, the procedure of carrying out an ID parade is
clearly legislated and the same must be followed to the letter
failure to which an ID parade will be a held by the court to be a
nullity as it will have flouted the accused persons rights.
The Police Force Standing Orders provide the procedure of
conducting an identification parade as follows:

63

75

i.

The suspected person will always be informed of the reason


for the parade and that he may have an advocate or friend
present when the parade takes place64.
In Ssesanga Stephen Vs Uganda65, the Court held that the
suspect has a legal right to be informed and also inform his
lawyer that an ID parade is being conducted. It held that the
right of the accused to be informed that he could have his
lawyer present was mandatory and failure to inform him would
be fatal to the parade.

ii.

The police officer in charge of the case should not conduct


the parade though he may be present 66;

This is because the rules require that an independent person


should be present to take care of the rights of the suspect.
Another officer other than the one in charge should therefore
have conduct of the parade.
iii.

The witness or witnesses should describe the accused


person prior to the parade being conducted.

The courts have held that the witness should not merely state I
will be able to identify the accused if I see him again. They
should actually give an adequate description of the accused. This
is what will inform the police on whom to include in the parade as
these ought to be persons of similar appearance with the suspect.
64

Standing Order 6 (iv) (a)


[1969] EA 365
66
Standing Order 6 (iv) (b)
65

76

In Ajode vs Republic, the court of appeal held that it is trite law


that before an ID parade is conducted and for it to be properly
conducted, the witness should be asked to give a fair description
of the accused and the police should then conduct a fair parade
based on this description.
iv.

The witness or witnesses should not see the accused before


the parade67.

In Ajode vs Republic it was held that where the witness saw


the accused outside the police station prior to the parade being
conducted, his identification of the accused in the parade was
valueless as he was demonstrating recognition as opposed to
identification. Similarly in Omar v Republic68

where the

appellant was charged with three offences of capital robbery, the


fact that the accused had been consistent throughout the trial in
saying that the witnesses saw him at Webuye and Eldoret Police
Stations before the parade and the lead inspector in his evidence
stated that the Appellant had complained of this fact, the parade
being the foundation of the identification of the Appellant failed
for it was flawed by this reason. As there was no other evidence of
identification, the appellants conviction was quashed and his
conviction set aside.
However in Njuki & 4 others Vs Republic the Court of Appeal
comprising Gicheru, Bosire and OKubasu JJAs held that although
there were discrepancies in the conduct of the parade as the
67
68

Standing Order 6 (iv) (c)


[1986] LLR 3198 (CAK)

77

witness saw the accused persons before it was conducted, the


main factor to be considered ion such a case was whether the
discrepancies are of such a nature as to create doubt in the guilt
of the accused. Where the discrepancies were relatively minor
they could be overlooked.
v.

The suspected person will be placed among at least eight


persons of similar appearance, e.g. in age, height, general
appearance and class of life as the suspected person. If the
suspected person is suffering from a disfigurement, steps
should be taken to ensure that it not especially apparent 69;

In Mburu & Another v Republic70

, the fact that it was

conceded, even by the prosecution, that the second accused was


the only person in the parade with a visible wounded face and
swollen eye, his parade was improperly conducted and his
identification was thus valueless.
vi.

The suspected person will be allowed to take any position he


chooses and will be allowed to change his position after each
identifying witness has left, if he so desires 71;

vii.

When explaining the procedure to a witness the officer


conducting the parade will tell him that he will see a group of
people

which

may

or

may

69

Standing Order 6 (iv) (d)


(2008) 1 KLR (G&F)
71
Standing Order 6 (iv) (e)
70

78

not

contain

the

person

responsible.

The witness should not be told to pick out

somebody or be influenced in any way whatsoever 72;

viii.

Where the witness is identifying more than one suspect, the


members of the ID parade should not be similar i.e. the
parade should always contain new members whom the
witness has not seen before.

In Mburu & Another v Republic the court of appeal held that in


cases involving multiple suspects, multiple identification parades
must be held. It is improper to line up the same persons in more
than one parade. Because the forms indicate that the parade of
the second accused was conducted on ten minutes after the
parade in respect of Mburu was conducted and that the same
members of the parade were used on both occasions and it was
held that the ID parade of the second accused was valueless and
his conviction was quashed and his sentence set aside.

ix.

Care should be taken to ensure that witnesses do not


communicate with each other73;

x.

Every unauthorized person must be excluded 74;

72

Standing Order 6 (iv) (k)


Standing Order 6 (iv) (f)
74
Standing Order 6 (iv) (g)
73

79

xi.

If the witness desires to see the suspected person walk, hear


him speak, see him with his hat on or off, this should be
done but the whole parade should be asked to do so 75;

xii.

The witness must identify the suspected person by touching


him76;

xiii.

At the end of the parade the conducting officer should ask


the suspected person if he is satisfied that the parade has
been conducted in a fair manner and make a note of his
reply77. The procedure is often to have the accused sign the
form of the ID parade to this effect.

xiv.

A note must be made after each witness leaves the parade


recording whether he identified the suspected person and in
what circumstances78;

xv.

The conducting officer must record any comment made by


the

suspected person during the parade particularly

comments made when the suspected person is identified 79;


xvi.

The parade must be conducted with scrupulous fairness;


otherwise the value of the identification as evidence will be
lessened or nullified80.

75

Standing Order 6 (iv) (h)


Standing Order 6 (iv) (i)
77
Standing Order 6 (iv) (j)
78
Standing Order 6 (iv) (k)
79
Standing Order 6 (iv) (m)
80
Standing Order 6 (iv) (n)
76

80

In Mburu & Another v Republic81

the court of appeal

considered this rule and stated thus The same issue recently
arose in David Mwita Wanja & 2 others v R82, and this Court
stated as follows: The purpose for, and the manner in which, identification parades
ought to be conducted have been the subject matter of many
decisions of this court over the years and it is worrying that
officers who are charged with the task of criminal investigations
do not appear to get it right. As long ago as 1936, the
predecessor

of

this

Court

emphasized

that

the

value

of

identification as evidence would depreciate considerably unless


an identification parade was held with scrupulous fairness and in
accordance with the instructions contained in Police Force
Standing Orders. See R v Mwango s/oManaa (1936) 3 EACA 29.
xvii.

The identification parades should be conducted with much


privacy as possible and should not, unless unavoidable, be
held in view of the public.

They should be held in an

enclosed compound or yard from which all spectators and


unauthorized persons have been excluded 83.
xviii.

It is the duty of the magistrate to ensure that where a police


officer gives evidence of an identification parade, the parade
was conducted in accordance with the above rules.

81

(2008) 1 KLR (G&F)

82

Cr A No 117/2005 (unreported)

83

Standing Order 6 (v)

81

TOPIC SIX
PRINCIPLES OF A FAIR TRIAL
PLEAS
On appearance before court, a judicial officer must ensure
that the charge is properly drawn
It must be in regard to an offence that is known to law
It must not be duplex
Section 77(2) (b) of the constitution makes?
All the proceedings must then be recorded
The court records must reflect the Coram which include the
judicial officer by name, the Prosecutor by name,
Section 198(4) of the CPC provides that the language of the
High Court shall be English whereas that of subordinate courts
shall be English or Kiswahili.
Adan v Republic Plea should as far as possible be recorded in
the language of the accused. Summary proceeding of what is
required in the course of a plea.
That in the event of a plea of guilty the fact should be stated to
the accused and he/she should be granted an opportunity to
respond
Where there is more than one accused jointly charged, the plea
of each should be recorded separately. And if a charge or
indictment contains several counts the accused must be asked
to plead to them separately. In the event that an accused does
not change plea, a plea of guilty should then be entered and
conviction recorded and after mitigation and facts relevant to
sentence are taken the sentence can be meted out.
Plea of guilty this kind of plea must be unequivocal and hence
the elaborate requirements laid down in the case law where the
82

plea is not properly taken and recorded the accused may be set
free despite the plea of guilty.
Not guilty the recording of in nearly exact words of the
accused need not be as scrupulous as in the case of a plea of
guilty but must be recorded nonetheless. Section 278 of the
CPC provides that where one pleads not guilty they are deemed
to have put themselves up for trial.
Say nothing i.e. refuse to plead, assuming that the court
accused understands the proceedings a plea of not guilty
should be entered.
May plead lack of jurisdiction by the court.
Demurrer - meaning that the charge is open to some legal
objection, e.g. facts may be true but do not amount to an
offence May plead lack of jurisdiction.
Autrefois acquit/convict Section 279 of the CPC makes provision
that:
(1)
An accused person against whom an information is filed
may plead:(a) that he has been previously convicted or acquitted of
the same offence; or
(b) that he has obtained the Presidents pardon for his
offence.
(2)
If either of those pleas are pleaded and denied to be
true, the court shall try whether the plea is true or not.
(3)
If the court holds that the facts alleged by the accused
do not prove the plea, or if it finds that it is false, the
accused shall be required to plead to the information.
In cases where it would have been proper to prefer the charge
complained of with the previous charge an accused can plead
that they had previously been tried and convicted or acquitted
of the same offence (see Section 77(5) of the Constitution)

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Further under the same Section 279 they may plead that they
have obtained Presidential pardon for the offence in question
(see Section 77(6)
It is cardinal principle of constitutional and criminal law that a
person must not suffer double jeopardy for the same offence.
The test is not whether the facts relied on are the same at the
two trials but whether an acquittal or conviction on previous
trial would have led to a similar conclusion in the subsequent
trial R v Duadji (1948) 15EACA 89.
Conditional discharge does not bar similar charges, discharges
such as those under Section 87, or where prosecution enters a
nolle prosequi.
An absolute discharge amounts to a bar to preference of similar
charges
Section 162 deals with Insanity
Where the court has reason to believe that due to unsoundness
of mind the accused is rendered incapable of understanding
the proceedings/making his defence, the court shall order for a
medical examination. If the medical examination confirms
unsoundness of mind the proceedings shall be postponed.
Where offence is bailable the accused maybe released on bail
on sufficient security that he will be properly taken care of and
shall not injure ..
He may be ordered to appear before the court or other officer
appointed by the court. If he is not capable of raising bail he
shall be remanded in custody or in a mental hospital. Problems
do arise since there are a lot of accused people who are not
serious mentally ill as those already there and the congestion
of mental hospital arises being caused by persons who should
be in custody, they can be remanded in custody if there are
facilities that can take care of their mental health. The case
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shall be reviewed from time to time as provided under Section


164.
CHANGE OF PLEA
An accused may change their plea from not guilty to guilty in
the cause of trial.
It is also accepted that where in mitigation the accused
essentially retracts the plea of guilty then the court can enter a
plea of guilty.
Kamundi v R [1973] EA 540 held that whereas, there are no
provisions regarding change of plea, there are equally no
provisions to prevent a change of plea before the court
becomes functus officio the same was held in Maumba v R
(1966) EA 167 IT WAS STATED THAT A MAGISTRATE POWERS
TO ALLOW AMENDMENT INCLUDING PLEA EXISTS ONLY DURING
TRIAL, before conviction and before the court becomes functus
officio
These East African decisions followed the English case of S
The court can be described as being functus officio when it has
determined a case by passing a sentence at which point it
lacks power to re-open the case on its own motion or on
application by the prosecution or the defence.
In the course of taking of a plea one finds in other jurisdictions
a plea bargaining where a person can bargain for a lesser
offence in exchange for being a State witness. There is no
provision for plea bargaining in Kenya
Sabur v R 1958 EA 126 it was stated that plea bargaining
would be deemed to negate a free and voluntary plea. An
accused person is being induced to bargain for a lesser
sentence. The position is that the defence and prosecution
have no place in the sentencing process which is seen as a
preserve of the Judiciary. It is not however to have accused
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persons charged with murder pleading guilty of manslaughter,


this is common in the High court through State counsels
indicating to the court that they have no objection to such a
plea this is an isolated practice that has no legal backing
which means the process can be exploited. Since murder is
non-bailable, they can use this process to bargain and there
would be nothing to bind them to make sure that they plead
guilty to manslaughter.
In the event that an accused pleads not guilty or a plea of not
guilty is entered the next question is that of granting of bail.
Bail is one of the rights protected by the constitution based
on the notion that one is innocent until proven guilty.
Bail is governed by the constitution, the CPC, case law and
practice adopted by various courts. When we look at the
processes and securities that are offered, most of these are not
in the CPC and courts have adopted some of the practice. In
every station there is usually a procedure that the courts follow.
Section 72(5) OF The constitution makes provision for bail to
those awaiting trial. Prior to 1987 all offences were bailable.
By amendments to Section 123 of the CPC Parliament created
non-bailable offences i.e. murder, robbery with violence and
attempted robbery with violence this was done without
similar amendments being made to the Constitution.
Margaret Magiri Ngui v R
The appellant together with others were charged with robbery
with violence. While in custody she suffered severe ulcers and
high blood pressure, she applied and was denied bail under
Section 123. She challenged the constitutionality of Section
123 of the CPC. It was argued that the provisions contravened.
The constitutional court agreed that the said sections were
inconsistent with the constitution and declared them null and
86

void. It then went on to consider the bail application on merit


and held that bail as a general rule should not be granted
where the offence charged carries a mandatory penalty
because the temptation was very high in such cases.
Subsequently section 72(5) of the Constitution was amended to
prohibit the grant of bail in offences punishable by death.
The result is that the grant of bail was no longer to be
considered on the merit of individual cases with regard to
capital offences but would be based purely on the nature of the
offence.
During the time when the amendments of section 72 was being
argued the AG argued that allowing for bail in capital cases
would lead to courts readily granting bail in such cases.
This was not withstanding the fact that the Constitutional Court
s refusal to grant Magiri bail.
Eliud Mwaura v R Criminal App NO 446 of 1986 had also earlier
demonstrated the seriousness with which courts addressed the
issue of bail for capital offences where bail was denied even
though the accused had been in remand for 11 months. In
practice it was agreed that courts had to be cautious in
granting bail for capital offences.
Section 72(5) states that bail is granted to ensure the
attendance of the suspect at the trial.
Bail consists of the
temporary release of an accused person while awaiting trial. It
is therefore an agreement between the accused (and his
sureties if any) and the court that the accused will pay a
certain amount of money fixed by the court should he fail to
attend court as and when required by the court. Bail is
temporary as it is based on the assumption that the accused
will show up in court if and when required to do so.
The sureties bind themselves to the court to forfeit whatever
amounts they have bound themselves.
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Section 123 (2) of the CPC provides that the amount of bail
shall be fixed with due regard to the circumstances of the case
and shall not be excessive. You cannot bind a person with
conditions of bail that they are not able to meet.
Section 123 there are two persons who can grant bail, the
police can grant bail at the police station and if they dont then
the accused can make an application. When an accused
person is held for an inordinate period the accused can go
before a subordinate court to apply for bail. It does not happen
often and what often happens is that when the accused is held,
if the accused does not appear before the court a habeas
corpus application can be made before the High Court. Habeas
Corpus tries to compel the person holding the suspect to
produce the suspect before a court of law. Section 123 gives
the court power to grant bail. Once the court has determined
the amount of bail, the court will consider whether to grant bail
or not. Firstly is the offence bailable or non-bailable, attempted
murder is a bailable offence.
When the Bill in 1993 the Narcotics and Psychotropic
substances Act when it was enacted, there was an attempt to
state that these offences were not bailable and the constitution
was not accordingly amended. The subordinate courts were
refusing to grant bail but a Constitutional Court clearly
indicated that Magiri was still binding on the courts, and that
statutory law should not come up with provisions prohibiting
bail. Where bail is to be denied it is still should be within the
constitutional framework. With Drug related offences, the
principles of Magiri apply and the principles are that it is true
one has a right to bail but due to the nature of the crime one is
likely to abscond.
Once the court has identified that an offence is bailable, when
determining what the terms of bail are going to be is that there
is not table in the CPC that states bail terms. There are three
ways in which the court can grant bail

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1. Cash bail cash deposited with court and a receipt obtained,


the court will record that cash bail is granted and in addition
the court will indicate the mention date and the date for
hearing. If it is within 14 days one does not need a mention
day, anything longer than 14 days there will be a mention
date.
2. Bond bond can be granted as free bond, the accused is
released on their own bond after signing a document which
indicates an amount e.g. 5000 IN the event that the accused
fails to turn up in the court when they eventually show up
they are required to explain or forfeit the amount.
3. Bond and surety in addition one is required to produce a
number of sureties which is discretionary upon the court
whether one needs one surety or more. Surety are brought
before the court and examined by the court, the process is to
ensure that the surety understands what their obligation to
the court is and what their responsibility towards the
accused person is. Their responsibility is to ensure that the
accused person comes to court.
if the surety agrees to
become surety they are required to sign the documents
binding themselves to amounts of money that they are
prepared to forfeit to the State should the accused abscond.
One must have a Kenyan surety so that the likelihood of
absconding is minimized. The court has power to reject a
surety and so it is not only the surety who can refuse but
after examination the court can decide that a person is not
suitable to be a surety. The prosecutor is also given a
chance to cross-examine the surety, this is important since
the courts do not have ability to trace the surety or the
accused person in the event that they disappear but the
prosecutor through the police force can trace the people.
The prosecutors can raise an objection and the court must
consider it before allowing or disallowing the objection. The
Prosecutor has the responsibility to cross-examine the surety
and are given the opportunity to object to bail even before it
is granted. Essentially if the prosecutor does not raise the
objection the court is expected to grant bail.
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In the US they have an institution of Bondsmen who are not


part of the institution but they can sign bonds for accused with
the responsibility of ensuring that the accused people show up
in court, if the accused disappears, the bondsmen then are
required to forfeit the money.
The courts may require that in addition to signing security
documents, that security are deposited with court.
they
include Titles, logbooks etc, in addition to bringing sureties
they are required to deposit securities with the courts. If it is a
logbook a search must be done with the Motor Vehicle
department and the court will go through all the documents
and official communication must come from the registrar of
motor vehicle confirming particulars of the logbook, if it is a
title there has to be a search and the land is valued so in
addition to showing up with a title, the registrar of land must
confirm that it exists and is worth the amount being alleged.
The reasons why courts require these securities, when the
accused abscond, it may be difficult to recover money from an
accused but where the securities are available the state can
recover what the accused is meant to have forfeited. It
depends on the court practice on how much they will require.
Some courts might reject title deeds and with sureties the court
has to guard against professional sureties. This happens in big
cities where sureties are not easily recognizable and people
become professional sureties in that they negotiate with
accused persons who pay them and they produce fake
documents and so when the accused persons disappears they
cannot be traced and the securities turn out to be fake.
TOPIC SEVEN

PLEA TRIAL BAIL

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There is pre-trial bail and bail pending trial. Pre-trial bail is the
bail given to an accused person before trial.
Some of the things taken into account are
1.
Nature of Offence is it bailable or not even where the
offence is bailable consideration should be given to its
seriousness; R v Kariuki Sunday Nation Jan 1976 at page 3, where
the accused told the manager of Egypt air in Nairobi
Another consideration is whether it is one that
2.

An additional consideration to the nature of the offence is


whether it is the kind of offence that may attract undue
hostility to the accused i.e. R V Gajjan Singh and others
where a landlord was charged with a criminal offence and
bail was opposed by the prosecution on the ground that
such release may have led to a breach of the peace i.e. an
attach on the
The court said that that the application was opposed
on the ground that the appellant might not appear to
stand the trial but on the ground that there was a reason
to apprehend breach of the peace by one side or the other
we consider that the attitude taken up by the
prosecution advocate was very sensible and wise.

3.

Severity or otherwise of sentence in case of conviction


e.g. where it is likely to attract a fine rather than
imprisonment the more reason to grant bail.

4.

the court will consider what sort of person the accused is


his social standing, ties with the community, ownership of
property in the areas, is he a citizen or non citizen,
immigrant etc the court may also consider the special
circumstances of the accused e.g. illness which may be
aggravated by incarceration.

5.

The court considers the length of the remand period, the


longer it will take before the trial the more reason to grant
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bail under this head may also arise consideration to


delays either by the prosecution or by the defence. The
longer it takes the court to hear a case the more reason to
grant bail.
6.

Unnecessary delay by prosecution may result in grant of


bail in cases where the court would otherwise not grant
bail.

7.

Delaying tactics by the defence may also lead to


cancellation of bail R v Muturi Kigano Daily Nation 1976 of
18 and 19 November at pages 3. If the court for any
reason believes that adjournments sort by defence are not
genuine, they can cancel bail and have the case proceed
with expediency.

8.

Where the accused person is to be released on surety, the


court has to determine whether the accused may fail to
turn up for trial especially where no deposit has been
made. Section 125 deposits to be made. Some courts
may consider that surety having given their personal
information is sufficient amount of surety based on their
earnings, the court can ask for payslips and if the court
allows surety to be surety based on their earnings they
have to be certain that if the accused does not turn up in
court they would know how to find him.

9.

Where the accused is to be released on sureties; are they


capable of paying up in the event of accused failing to
turn up for trial especially where no deposit has been
made.

Central to all these considerations is whether the accused


person will turn up for trial whether or not there is likelihood
of accused absconding.
10. Whether or not the accused is likely to interfere with
witnesses this is a difficult matter for courts to evaluate
this because the courts do not know the relationship of
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the accused and the witnesses there may well be cases


where it is possible to make an intelligent guess that the
accused because of the nature of the offence may actually
intimidate prosecution witnesses. It is difficult for courts
especially where there is no evidence of such an
occurrence happening.
Usually it is the prosecution that makes the objection that there
is likelihood of interfering with witnesses. Where they do so
then grounds supported by facts should be adduced to show
reasonable cause for the alleged fears. It is not sufficient for
the prosecution to allege, they must show facts.
Character and antecedents of the accused persons in some
jurisdiction this is taken into consideration however in Kenya
the practice is that the courts do not have access to previous
records of the accused therefore they can only consider
situations where the accused had previously absconded or
abused bail terms.
Depending on the nature of the case the magistrate may
inquire into the kind of evidence in support of the accusation
i.e. its cogency.
Views of the prosecution the prosecution must be given
opportunity to object to bail if they so wish. However, the
grant of bail is entirely the discretion of the magistrate where
the prosecution advances cogent reasons then it is advisable
for bail to be denied.
Section 124 of the CPC states that bail should not be excessive,
but no specific amounts are provided the court should consider
whether the amount is reasonable. The amount of fine or
sentence generally that the offence is likely to attract.
The economic circumstances of the offender should be taken
into account
Insufficient Bail Terms
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Section 127 provides that where through mistake, fraud or


otherwise, insufficient bail terms or sureties have been
accepted, or if they afterwards become insufficient i.e. through
additional more serious charges the court may require of the
accused to find sufficient sureties failure of which he maybe
remanded in custody.
SURETIES
It is the responsibility of the accused and his next of kin to find
suitable sureties. Sureties are examined by courts/magistrates
to assess their suitability such examination forms part of the
court records. The magistrates thus take responsibility in the
event that something goes wrong.
The prosecution are also allowed to cross-examine sureties and
to cross check any details that they supply to the court, such
place of residence, employment, authenticity of any documents
produced.
The examination of sureties includes finding out the nature of
the relationship that exists between them and the accused whether they can exercise authority to require the accused to
attend court.
It also includes ensuring that the sureties
understand the nature of their obligation to court and their
undertaking to ensure that it is their responsibility where there
is failure on the part of the accused to attend court.
Considerations will also be made to the financial resources of
sureties or capability, character and previous convictions if any.
Proximity or relationship with the accused person is also taken
into consideration.
It is essential that the surety should be interested in and
looking after and if necessary using powers/or position of
authority over the accused to prevent his escape.
They must attain the age of majority.

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Under Section 128 the surety can apply at any time to be


discharged from responsibility, there is no requirement for a
surety to furnish the court with reasons. In practice such
applications are made during mention dates when the accused
is present. Where the accused is absent then a warrant of
arrest may be issued to require attendance
Section 129 provides that where a surety dies before a bond is
forfeited, his estate shall be discharged from all liability in
respect of the bond. This provision should be understood
within the context of the personal nature of the obligation of a
surety to the court which cannot be assigned.
FORFEITURE
Section 130 and section 131 OF the CPC provides an elaborate
procedure for forfeiture where an accused absconds, in
summary it is as follows;
A warrant of arrest is issued against the accused and a
summons to the surety
If the accused comes to court he should give reasons as to why
forfeiture should not take place if the court is persuaded the
warrant may be ..
Where the accused is not arrested and continues with non
attendance the surety will be required to show cause why
forfeiture should not be ordered against them.
In practice the surety will be given time to look for the accused
and it is only where he fails to do so that the forfeiture will
ensue.
If penalty is not paid then an order can issue for attachment
against property.
Where it is not possible to attach property the court can make
an order for a term not exceeding 6 months.
The court may also enforce only part payment of the surety.
R v Forgobhai Jessa the accused was released the court held
that the undertaking by a surety was not a mere formality. A
95

surety incurs duties in relation to the person whose attendance


he had been bound.
If he fails to take reasonable precautions in the discharge of his
duty he is liable to be ordered to pay the penalty of the bond.
Nsubuaga v R 1968 EA 10 it lays down procedure to be
followed before forfeiture. The accused was granted bail of
Shs. 500 for trial on 25 th July 1967, on which date the
magistrate recorded that the accused was absent and issued a
warrant of arrest.
On appeal IT WAS held that a mere
statement by prosecution is not sufficient to satisfy
requirements of Section 130(1) of the Ugandas CPC which is
similarly to Kenyas section 131(1).
Evidence should have
been given on oath.
The court must take into serious account the fact that rules of
natural justice have been observed. In practice courts adopt
various practices when it comes to issuing orders of forfeiture.
There are courts that when the accused person is called and
does not respond, they issue a warrant of arrest. There is need
to verify since it is possible for accused persons to have good
reasons why they are not in court and if an order for forfeiture
is made, they can suffer injustice, once an order for forfeiture is
made the magistrate cannot recall it.
CHALLENGES
Some of the challenges that face the grant of bail is that
because of the discretionary nature of bail, the practice of
courts may differ from court to court.
there is lack of
uniformity in approaching bail terms which confuses defence
counsels and litigants alike.
The defence often view with hostility members of the bench
who are conservative and with awe/admiration those they
consider to be liberal with bail terms. It is really a question of
balance that the court has to strike as a person is innocent until
proven guilty. The court should seek to balance all this.

96

Courts are called upon to make bail decisions with very little
information. They therefore rely heavily on the prosecution.
Criticism has been levelled at judicial officers who do not grant
bail as a matter of practice but wait for accused persons to
apply.
SUGGESTED REFORMS
Legal or administrative requirement that magistrates inform
accused persons of their right to bail
Mechanisms should be created for courts to gauge the financial
ability of accused persons while considering bail terms. This is
not a structured mechanism but a practice that an individual
may adopt. It has been suggested that such mechanisms could
use probation officers to provide pre-trial reports.
There is the suggestion of provision of legal aid for the indigent
failing which judicial officers should be retrained to be more
practical in the promotion and protection of the rights of those
appearing before them.
RENEWAL AND APPEALING FOR BAIL TERMS
Section 123 - The High Court has powers to review cases where
bail is denied by the police or the magistrates courts. It also
has powers to entertain bail applications in its original
jurisdiction. In practice where bail is denied the application
may be renewed before the court trial secondly, where bail
terms are considered unreasonable application may be made
for review of the terms and appeal lies to the High Court.
Consideration by the trial court will be based on where or not
there is a change of circumstances to warrant such an
application. Where investigations are still going on the police
are more likely to fear that the accused persons can intimidate
witnesses not to record statements but once statements are
recorded this minimises that fear.
The trial

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A criminal trial commences when on the hearing date an


accused person is called upon to take his place in the dock.
The charge is then read to the accused and his plea taken.
As a preliminary process the prosecutor is expected to
inform the court of the number of witnesses they intend to
call and to indicate their readiness to proceed. It is
important for the prosecutor to indicate to the court the
number of witnesses he will call. Usually in every court
there are courts that take plea and others that dont but
every court has mentions, they have hearings,
judgements etc. the court has to determine whether to do
mentions first, of those who are in remand and those who
are out on bail. The court then does a call over for the
hearing that are there for the day for purposes of
determining how many witnesses are there for each case
and which cases is most ready to proceed.
If the prosecution is ready to proceed the accused has a
right to be defended by an advocate of his choice, the
court should ensure that the advocate is present.
Section 194 provides that the accused must be present
personally or where his presence has been dispensed of
represented by his advocate if any throughout the trial..
this position was restated in Afumu & Another v R 1956 26
KLR 87- the appellant an omnibus driver was jointly
charged with the owner of assault for causing actual
bodily harm. When the principal witness was about to
give evidence it emerged that the appellant was absent
his advocate applied for adjournment which application
was rejected. The trial proceeded in the absence of the
accused but in the presence of his advocate. They were
subsequently convicted and the magistrate proceeded to
cite his own (magistrates) experience with misconduct of
African omnibus drivers.
After the plea is read and taken, the trial then starts by
the prosecution tendering its evidence.
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The prosecution has ..


Section 197 of the CPC makes provision for the manner of
recording evidence before magistrates. The evidence of
each witness taken down in writing or typewriter in the
language of the court by magistrates or in his presence and
hearing
and
under
his
personal
direction
and
superintendence and shall be signed by the magistrate and
shall form part of the record.
The evidence shall not be ordinarily be recorded in question
and answer form but in narrative form cause the same to be
taken down i.e. the question and answer combined provided
that the magistrate may take down specific questions and
answers or cause the same to be taken down.
There is also provision that evidence may be taken by
shorthand.
In practice magistrate or judicial officers record evidence by
hand and the Magistrates file is the only record of the
proceedings. This comes with a lot of limitations. Firstly it is
not humanely possible for a magistrate to capture
everything a witness is saying, one can develop selective
hearing and so one never knows whether the record
captured everything as it should have. For an accused
person this becomes an uphill task to convince the court that
something was said and not recorded.
Prosecution Case
The prosecution should lay out its case in a logical sequence
and ordinarily the first witness should be the direct victim of
crime if any. The exception to this rule is where one has
expert witnesses, and where there are expert witnesses,
they should take precedence over other witnesses.
Section 151 of the CPC provides that every witness in a
criminal matter shall be examined upon oath administered
by the court. in practice where the witness does not wish to
take an oath then they must be affirmed.

99

The witness shall then be cross-examined by the defence.


The prosecutor file has all the witness statements and as
they lead them they lead them based on the statements that
the witnesses have written down.
The idea of leading the witness and giving evidence is so
that the accused can elaborate what is in the particulars of
the charge to prove the case. facts are laid down to be able
to show that the offence the accused is charged with was
actually committed.
Cross-examination is basically to raise doubt on the case of
the prosecution. Because of this a lot of latitude is allowed
in cross examination and one can ask anything they want to
ask as long as they are relevant to the case. the act of cross
examination is important for the defence counsel in the
criminal case because of the latitude. One is trying to build
the basis for their defence during cross examination. Cross
examination must have a logical connection to ones defence
After cross-examination there is re-examination which is
done by the prosecution to clarify issues that will have arisen
in the course of cross-examination. It is important to stick to
the relevant things that were raised during crossexamination.
The court also has powers to cross examine witnesses. For
the court to do this, there must be issues where the court is
seeking clarification which has not been brought up by the
prosecution or defence.
Where the accused is not
represented, this helps the courts to be proactive. The
accused who is not represented may not know how to crossexamine a witness and the court can do that to clarify
issues.
Once cross examination and re-examination have been
finalised the court must sign the proceedings, this is so that
at the end of every witnesss evidence the court must sign
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and put in the designation and date of that part of the


proceedings. This way the witnesses are called until they
have all given evidence and then the prosecution can
indicate to the court that they are done.

TOPIC EIGHT

RULING/PRIMA FACIE CASE

Close of Prosecution case


Section 211 of CPC on hearing the evidence in support of
the charge and such summing up, submission or argument
as may be put forward, summing up and submissions re by
the prosecutor and defence respectively.
After which the court shall consider whether or not a prima
facie case has been established
If it appears to the court that a case is made out against the
accused person sufficiently to require him to make a defence
Bhatt v Republic 2957 EA 332, where the court defined a
prima facie case as one where a reasonable court directing
its mind to the law and evidence would convict if not
explanation were offered by the defence.

Where the court is of the opinion that the prosecution has


failed to establish a prima face case; then a detailed
reasoned ruling will be written leading to an acquittal under
Section 210 of the CPC and the accused shall be set at
liberty accordingly
Where the court finds that the prosecution has established a
prima face case, then the ruling should not be detailed and
no reasons are required either
101

Compliance with Section 211


Once a ruling that a prima facie case has been established is
entered; S 211 of the CPC provides;
That the court shall again explain the substance of the
charge to the accused. This is to prepare the accused
person or to remind him of the charge.
Shall inform him that he has a right to give evidence on oath
from the witness box, in which case he shall be liable for
cross examination.
Or that he can make an un-sworn statement in which case
he shall not be liable to cross-examination.
Thirdly, even though it is not mentioned in S 211 the
accused shall be informed of his right to remain silent see
section 306 (3) dealing with trial in the High Court which
makes reference to this as an option that the accused may
elect. It is now standard practice in criminal courts that the
court must explain this option to the accused.
Whichever option the accused person chooses, he shall be
informed of his right to call witnesses. Whether he chooses
to give a sworn statement, unsworn etc he must be given
the option
Section 211(2) enables the court to compel attendance of
witnesses on behalf of the accused where there is need and
to grant adjournment to enable such witnesses to attend
court.
The accused may also apply for production of documents or
thing that he considers necessary for defence.
The court can reject such applications where it considers it to
be vexatious or that it is intended to delay or defeat the
cause of justices in which case the reasons for refusal should
be recorded.
David Nalima v Republic at the beginning of the
prosecution case the appellant was unrepresented he later
hired counsel at the close of prosecution case counsel
withdrew. The appellant conducted his own defence and
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gave evidence, his co accused gave evidence and called one


witness at which point the appellant indicate that he wanted
to call 3 witnesses. The application was rejected on the
ground that the accused knew his right to call witnesses but
failed to do so. Even though the case had dragged on for a
considerable period, the HC held that none of the
considerations appeared to be good reasons for refusing the
appellant opportunity to call witnesses.
DEFENCE CASE
The accused shall commence his defence by calling his
witnesses referred to as Defence Witnesses (DW).
The practice is for the accused where he has elected to
give evidence whether sworn or unsworn first see R v
Malakwen arap Mutel
This procedure ensures that the accused person who must
be present throughout the trial does not have the
advantage of listening to his witnesses and thereby
probably tailoring his own evidence to corroborate such
witness statements
The accused shall then call witnesses who shall be
sworn/affirmed and shall give their evidence in chief, be
cross examined by the prosecutor and re examined by the
defence and finally they may be examined by the court.
the weakness is that most accused persons are
unrepresented and dont know what to do, they may be
led by the court if they are unable. The other challenge is
if an accused is unrepresented they lead themselves and
are cross-examined but they cannot re-examine
themselves, the ideal will be for court to re-examine them
for clarification.
After calling all the witnesses the defence shall signify to
the court the close of their case.
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Both the defence and the prosecution may then address


the court. the procedure is like during the examination.
The argument will be to support each sides position.
After the close of the defence case the accused or his
advocate have the being the address to the court; with
the prosecutor having an automatic right of reply where
the accused has adduced evidence (calling witnesses
other than himself)
Where only the accused has testified the right of reply is
only exercisable by the prosecution where the AG or the
Solicitor General appears in person in court.
After listening to the arguments from both sides the court
will proceed to write the judgment. At the ruling stage the
ruling can amount to an acquittal in the same way that a
judgment can amount to an account where the court has
established there is no prima facie case.
ISSUES ARISING IN THE CAUSE OF TRIAL
Non attendance by complainant Section 202 of the CPC
provides that where the accused is present before the court
but the complainant having had notice of time and place of
hearing fails to attend trial, the court acquit the accused
unless for some reason it thinks it proper to adjourn the case
to another date.
Section 204 Withdrawal of Complaint at any time before a
final order is passed the complainant can withdraw his
complaint on satisfying the court that there are sufficient
grounds and where the court is so persuaded then the
accused shall be acquitted accordingly. Usually there are
attempts by people to withdraw cases such as sexual
offence in which case the court can decide not to allow such
an application where it feels the victim of crime may have
been coerced into withdrawing the claim for where for public
good it would not be right to allow withdrawal.
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Section 205 adjournment allows For the court to exercise


its discretion to allow for adjournment during trial. The
duration which people have to spend in remand before they
can be tried is a good indication of whether there is too
much delay and the court has a problem with backlog.
Courts can only manage the case they have by giving people
cases that they can proceed with. It must be ensured that
the daily cause list is not overburdened by cases which will
not proceed. Adjournment should only be allowed where
there is sufficient ground.
Non appearance by both parties after adjournment section
206 provides that where an accused charged with an offence
other than a felony does not appear after adjournment the
court may proceed in his absence to convict and sentence,
where the court subsequently is satisfied that nonattendance was due to reasons beyond the control of the
accused the sentence may be set aside where it is the
complainant who fails to turn up then charge may be
dismissed with or without costs. This is rare in the criminal
system. where there is private prosecution one of the
punitive measures against a prosecutor is to have costs
awarded to the accused person.
Philip v R 1961 EA 268 the accused was summoned to give
evidence at an inquest, he appeared in court at 9 am on the
required date when the magistrate did not appear he went
away at 10.30 am and when then came back to court at 4
pm and apologies. He was then convicted on his own plea of
failing to attend judicial proceedings and fined 200. he
appealed and the court held that there was no such offence
created and that he court has summary powers to fine a
person who absents themselves from court, the proceedings
were declared a nullity.
Witnesses all persons may be called as witnesses in
criminal cases except
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children of such tender years that they have no sufficient


intelligence to give evidence.
Insane persons
Persons whose understanding is affecting by temporary
causes such as illness or drunkenness.
Deaf and dumb witnesses if they are unable by writing or
signing or otherwise to communicate.
If they can
communicate by writing or any other way, then they can
testify.
The accused, and the husband or wife of the accused
spouses cannot give evidence against each other unless the
offence is in relation to the spouse i.e. if the wife has
battered the husband then the husband can testify.
Children any child may be sworn as a witness provided that
it appears to posses sufficient intelligence to understand the
nature and obligations of the oath- competency is therefore
based on understanding not age.
The child may give un-sworn statement if the courts is of the
opinion that they can understand the nature of proceedings
even if they do not understand the nature of the oath.
R v Gabriel 1960 it was the duty of the court to ascertain
the competence of a child to give evidence. It is not
sufficient to ascertain that a child has enough intelligence to
justify the reception of evidence, but also that the child
understands between truth and falsehood.
The magistrate should question the child to ascertain
whether or not she understands the nature of an oath
Fransisio Matovu v R EA 260 if the magistrate does not
allow the child to be sworn they should record whether in his
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opinion the child is possessed of sufficient intelligence to


justify the reception of the evidence and if he understands
the duty of telling the truth. The court has to be clear that it
is not asking the child things that are beyond the knowledge
of the child. The court has to establish whether the child
ascribes to any religion, the court should find out if they
know about their religion.
Where the child does not
understand what an oath is the court must establish whether
they understand the duty of telling the truth by finding out
from the child if they know the consequences of telling the
truth. If the court is satisfied then the child can testify.
Refractory Witness(difficult witness) Section 152 provides
that whenever a person either in obedience to summons or
by virtue or warrant or being present in court and being
verbally required to give evidence.
Refuses to be sworn; a person refuses to answer any
question put to him or refuses or neglect to produce any
document or refuses to sign his deposition without offering
sufficient excuses, then the court may adjourn the case for
any period not exceeding eight days, and may in the
meantime commit that person torsion, unless he sooner
consents to do what is required of him.
The committal may be ordered again and again until the
witness complies. The court can order the person to be
taken to police cells for whatever amount of time until upto 8
days or compliance.
Such a witness who refused may be prosecuted for contempt
of court; which allows for more substantive punishment but
for which a proper charge must be laid out.
The provisions of Section 152 allows for a summary
procedure to enable the court to deal with contempt on the
face of the court by such witnesses, because the conduct of
such witnesses is deemed to lower the dignity and authority
of the court. These are summary provisions and can be
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draconian so the court must ensure that the witness


understands what is required and that he is deliberately
being obstinate before resulting to punitive measures.
Hostile Witness where a witness is called by a party to the
proceedings either the prosecution or defence but on
taking the witness stand gives evidence that is contrary or
contradictory to what the party expected him to give that
party may apply to the court to declare such a witness
hostile.
For a witness to be declared hostile, there must of necessity
be a written statement which had been recorded with the
party calling such a witness and from which statement he
seeks to materially deviate.
If the evidence is materially different then the court should
make a decision based on the recorded statement vis--vis
the witnesss statement in court.
Where the court is satisfied that the witness has deviated
materially from his written statement then the court can
declare the witness hostile. The hostile witness is a concern
of the party that are calling this witness and a refractory
witness is a difficult witness
A declaration that a witness is hostile leads the party making
the application to cross examine their own witness this
essentially means that the witness is unreliable and is
treated as such.
The evidence of hostile witnesses is usually rendered
useless, unless other witnesses give evidence supporting the
new version. One of the difficulties is that prosecution
witnesses when they go to the police, the police insist on
recording the evidence for a witness, this brings difficulties
as there could be language barriers, one may have a
problem where evidence is not recorded by a police officer in
a language that he witness does not understand. The court
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must not be punitive to a witness who may be telling the


truth that the statement does not reflect what they said.
There are no provisions in the CPC with regard to hostile
witnesses but it is a practice in English law and so we follow
it as part of common law.
Where the nature and extent of deviation is considered
serious enough then such a witness may be charged with
perjury i.e. by giving false information or lying before the
court. with a hostile witness the ultimate is being charged
with perjury but with a difficult witness they would be
charged with contempt of court.
Commission for examination of witnesses: - Section 154-158
makes provision for the HC or a magistrate of first class
jurisdiction examination of witnesses in the following r
The commission may be directed to a magistrate, who shall
then proceed to the place and take evidence of the witness,
in the same manner that evidence is taken during trial.
The parties to the proceedings may tender any
interrogatories in writing to court issuing the commission
which may then be forwarded to the magistrate conducting
the commission and who shall examine the witness upon
those interrogatories alternatively they may appear before
the magistrate by advocate or if not in custody in person and
may examine, re examine or cross examine the witness.
A magistrate below the level of 1 st class may apply to the
High Court stating reasons for commission to issue for cross
examination
The commission shall then be turned to the magistrate ..
Right of court to call a witness: - Section 150 provides that
the court may at any stage of trial summon or call any
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person as a witness or any person in attendance but not


called as a witness or recall any person already called as a
witness.
The general rule is that the matter of calling witnesses
should be left to the prosecution or the defence
R v Mwisoli the accused was convicted of murder, during
the trial the judge called a defence witness whom the
defence had elected not to call.
The court of appeal
disapproved of such practice and considered it an
interference with the defence.
R v Makanga 1937 EACA 71- the magistrate adjourned court
to go and obtain a witness whom he had reason to believe
could give material evidence. There were no police officer or
nor court prosecutor present. The Court of Appeal held that
a magistrate has power to summon any person as a witness
at any stage of the proceedings if it appears to him that the
is essential to a just decisions but that magistrate should
himself leave the bench during the hearing of a case and
himself seek out and
Identification: it is an elementary rule of criminal procedure
that the accused be properly identified by witnesses - hence
the requirement that the relationship between the witnesses
and accused is established.
Identification Parades these are carried out by police to
establish whether the witnesses can identify suspects that
they allege have committed offences against them.
The proper procedure to be followed in conduct of
identification parades was laid down in R v Mwango 1936
EACA 29 but The Police Standing Orders also make similar
provisions;

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(a)
That the accused person is always informed that he
may have a lawyer or friend present when the parade takes
place;
(b)
That the officer in charge of the case, although he may
be present does not carry out the identification.
(c)
that the witnesses do not see the accused before the
parade;
(d)
That the accused is placed among at least eight
persons, as far as is possible of similar age, height general
appearance and class of life of himself/herself.
(e)
The accused person should be allowed to take any
position that he chooses, and that he is allowed to change
his position after each identifying witness has left, if he so
desires.
(f) Care should be exercised that the witnesses are not allowed
to communicate with each other after they have been to the
parade.
(g)

Exclusion of any persons with no business there;

Careful notes should be made after each witness leaves the


parade, recording whether the accused
Identified or other
circumstances.
(h)
Ensure the witness touches the person that they
identify.
(i) During the termination of the parade or during the parade
ask the accused if he is satisfied that he parade is being
response recorded.
(j) While introducing the witness tell him that he will see a
group of people who may or may not contain the suspect
should not tell him to pick out somebody or influence in any
manner whatsoever
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(k)
The whole exercise must be scrupulously fair, otherwise
the value of the parade will diminish,
This procedure was endorsed further in Musoke v R 1957 EACA
715
Whenever the prosecution is to adduce evidence based on the
conduct of an identification parade, then the magistrate must
ensure that it was done in compliance with these instructions.

TOPIC NINE

EXPERT WITNESSES
These are witnesses who assist the court in areas of expertise
such as medical reports, ballistic reports, handwriting experts,
government analysts its not in all cases that expert witnesses
are necessary it is only in some cases i.e. where a firearm is used
a ballistic expert, handwriting a handwriting expert.
The general rule of practice is that expert witnesses should be
given priority over other witnesses.
This is the practice
irrespective of whether he is the next witness to be called
logically
The evidence of such witnesses may be challenged by other
experts. One can be challenged by another expert. It is not
common in Kenya as we have not developed the norm of people
challenging expert evidence. For example in rape and defilement
a medical report is required which indicates about blood and
semen tests but in developed countries they require DNA testing.
Trial within a Trial
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This is with regard to confessions. The general is that any


statement whether written or oral by an accused person relating
to the charge against him is admissible in evidence against him.
The courts are however particularly careful about statement made
to police offices as a result of the English courts developed what
are now known as judges rules to be followed by police officers
whenever they wish to take statements from an accused the
procedure is largely governed by law of evidence.
Section 25 of the Evidence Act defines confession as comprising
words or conduct, or a combination or words and conduct, from
which whether taken ..
Principally the law in Kenya has changed since the introduction of
the Criminal Law Amendment Act No. 5 of 2003 Section 25A of
the Evidence Act provides that
A confession or any admission of a fact tending to the proof of
guilt made by an accused person is not admissible and not be
proved against such a person unless it is made in court. The
effect of the provision is to remove confessions from the mandate
of police officers.
Since the introduction of the said amendment there has been
differing opinions on its suitability
Human rights activist have hailed the provisions as a s step
forward in limited the opportunity for the torture suspects by the
police
Judicial officers have been uneasy about a provision that requires
them to perform investigation functions and have pointed out the
undesirability of judicial officers performing such a function that
may lead to a conflict of interests. The police have argued that
since the amendment there has been a slow down in
investigations as well as an escalation of crimes.
The problems posed by the amendment have lead to another
proposed amendment i.e. The statute law (Miscellaneous

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Amendment) Bill 2005 which proposes to amend Section 25A of


the Evidence Act as follows:
Delete the words in court and substitute thereof the words
before a judge, a magistrate or a police officer (other
than the investigation officer) being an officer not below
the rank of Chief Inspector of Police.
The Attorney General shall make rules governing the making of
a confession in all instances where the confession is not
made in court.
The proposed Bill has attracted criticisms from civil society groups
who contend that it is a draw back to the progress made by ct No.
5 of 2003 and maintaining their concern that the police will
employ torture, threat and other undesirable and illegal tactics to
obtain confessions should the amendment be passed.
Confessions cause a major problem in our system because, the
burden of proving a criminal case is on the prosecution, further
the accused is protected from being compelled to give evidence
against himself; and yet ideally a confession if properly taken
would be the best evidence against the accused; note must also
be taken of the fact that even where the police do not produce
statements they may still produce evidence such as recoveries
and arrests made arising from such confessions.
Historically due to lack of proper safeguards extraction of
confessions from accused persons has been characterized by
systemic
It must be noted that the current provisions presume that there is
no need for rules or guidelines when confessions are taken before
a court. this raises the likelihood of different standards being
applied by different courts and where a dispute arises then it will
be difficult to decide with certainty what ought to have been done
in the absence of such rules governing how confessions should be
taken before the courts. Nonetheless it is expected that should
there be a dispute that the courts will apply the principles already
developed with regard to confessions previously taken by police
officers.
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Therefore even the current status the accused may therefore


dispute a statement if it was not given voluntarily i.e. if it resulted
from coercion or inducement which may occur prior to the taking
of the statement in which case the court must establish such facts
before taking recording a statement from an accused. It is
possible to coerce the accused person and take them to court to
record a statement. If this happens there are no mechanisms to
lay out what precautions the court can take when an accused is
taken before the court to record a statement. The court should
establish that there was no coercion before the accused was
brought to them.
It must be explained to the accused that they are under no
obligation to give the statement but that if they do give it then it
can be used in evidence against them.
It is important that the statement should be recorded in the
language in which the accused gives it and translated into a court
language. It should be read back to the accused person who
must indicate whether or not they agree with the statement as
recorded, they should then sign or thumbprint it.
Where a confession has been duly taken from the accused person,
the prosecution, depending on the evidence that they have may
seek to produce that confession as evidence. After determining
who is to be charged, they dont have to produce every statement
under caution or inquiry or confession, the police usually do not
have very good evidence.
The prosecution must inform the court of their intention to
produce the confession and then the accused will be required to
indicate to the court whether or not they have any objection to
the said production. If the accused has no objection then the
statement will be produced where the accused opposes the
production then the court will conduct a trial within a trial whose
main objective will be to establish the circumstances under which
the statement was taken. The main trial will be interrupted and in
the court file, the judicial officer will indicate that a trial within a
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trial is commenced. if the trial within trial will start with the
witness relating to the manner, conditions and circumstances
under which the statement was recorded. The witnesses will be
examined in chief, cross examined and re-examined.
After the close of the prosecution case, the court will not enter a
ruling; instead the defence will be given opportunity to adduce
their evidence, at the end of the defence case the court will make
a ruling. The ruling will limit itself to the issues raised during the
trial within trial and will either allow or disallow the production of
the statement.
The magistrate has to determine how the
statement was taken. Where the court rules that the statement
was made voluntarily by the accused then the witnesses who
produced the statement shall resume his stand in the main trial;
and produce it accordingly.
The practice is that during trial within trial the disputed statement
should not be read out and that it is only after a ruling favouring
its production that it can then be read out. On production the
accused/defence will still have the opportunity to cross-examine
the witness and more so on the contents of the statement.
EXHIBITS
Identification and production of exhibits
Where any recoveries have been made in the cause of
investigations, the prosecution together with the investigator will
determine whether or not to use them in the cause of the trial
bearing in mind their relevance. Production of exhibits before the
courts is done by the officer who made recoveries; since most
criminal cases start with key witnesses; those witnesses are
required to identify such exhibits; at this stage the exhibits will be
marked for identification i.e. MFI 1,2,3, ETC.
The exhibits will
then be shown to all other witnesses who may need to identify
them. The officer who made the recoveries and in whose custody
the exhibits were being held prior to the trial will then produce
them at which point they will be marked as Exhibit 1,2,3 etc.

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Exhibits once produced before the courts must be properly stored


and should not be tampered with until the end of trial.
Return and Destruction of Exhibits
The general rule is that at the end of trial the exhibits should be
returned to their owners where there is no dispute as to
ownership. Where there is a dispute on ownership in a criminal
court then the parties disputing will go before a civil court for
inter-pleader proceedings to determine ownership. It is also a
general practice that exhibits that are bulky or delicate or
perishable and whose storage may be problematic can be
returned to their owners once they have been produced but
before the trial ends. In cases of bulk where there is no storage
space, the court can make an order for return of those goods,
contraband goods are usually forfeited to the state those that are
illegal and dangerous such as drugs are destroyed by the court.
the court must preside over the destruction of such exhibits;
depending on the quantities and level of security threats such
exhibits will be destroyed by the trial court notwithstanding the
possibility of appeal in all other cases destruction and forfeiture
should only occur after 14 days when the Right of Appeal has
lapsed. If exhibits are destroyed before the appeal period the
accused person may argue at appeal that destruction of exhibits
is an impediment to their appeal so the courts must be careful in
deciding to destroy exhibits before the trial ends.
Scenes of Crime
A judicial officer is required to have a high level of imagination as
witnesses give evidence he must conjure up a picture of the
scene. It is important that in each case the judicial officer clearly
understands what actually happened; in most cases witnesses are
able to give clear evidence but there may arise cases of confusion
or even dispute. Either the prosecution, the defence may apply to
the court or the court on its own motion may require that a visit to
the scene of crime be made by the trial court. In Olora and others
v R it was held that a magistrate exercising his discretion can
refuse an application by the defence to visit the crime scene. The
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visit is usually necessitated by contention on various factual


matters relating to the scene which can readily be verified upon
such visit and will not easily be resolved by examination of
witnesses. Irrespective of who makes the application all parties
should be informed and facilitated to attend to the visit.
Hoareau v R 1962 EA 644, a magistrate hearing a theft case
visited the scene after the close of both prosecution and defence
cases accompanied by the prosecution but not the accused or
advocate; the CA held that his procedure was fatally irregular and
that it offended the principle that justice should not only be done
but should be seen to be done. Any witnesses whose evidence is
already before the court but who may be useful at the scene may
be recalled.
The procedure at the scene will be the same as that inside a court
room and the evidence must be recorded; parties must be given
opportunity to examine witnesses.
Closely related to scenes of crime are documentary evidence such
as sketch plans which if prepared carefully will often save the
court a visit to the scene. It is good practice to establish early on
in the case whether or not the prosecution will produce a sketchplan which can then be shown to witnesses as they given
evidence. If there is a sketch plan all the witnesses must be
shown.
R v Mohamed the CA said that it was desirable in cases where
roads, places, times and distances may be of importance, record
immediately and as accurately as possible draw what of at once
to prepare a sketch plan to be the investigating officers observe
on the spot and is shown to witnesses
Other items related to the scene etc are photographs of the
scene, handwriting specimens and other evidence produced by
experts. They must be produced by the persons who drew or took
them unless the court gives leave otherwise and they should be
clear and relate to the offence charged. Where there is any

118

objection to the production of such documentary evidence then


the court will make a ruling to determine.
Demonstration this may arise where a witness is asked to
demonstrate or estimate distances etc; they must be done in the
presence of the accused see Poole v R 1960 EA 644. Accuracy
of estimates can be ensured by providing specific distances
measured from various areas of the court room or court house
this could be done by way of a charge it should not be taken for
granted that the judicial officer has an acute sense of estimation
of distances.
Sections 78 81 of the CPC makes provisions for transfer of cases
from one court to another these powers are exercised by the
High Court or magistrate of 1st class jurisdiction. Section 79
provides that a magistrate of 1st class may transfer a case of
which he has taken cognizance to any magistrate holding a
subordinate court empowered to try that case within the local
limits of the first class subordinate courts jurisdiction and may
direct or empower a magistrate holding a subordinate court of
second class who has taken cognizance of a case and whether
evidence been taken in that case or not, to transfer it for trial to
himself or to any other magistrate within the local limits of his
jurisdiction who is competent to try the accused and the
magistrate shall dispose of the case accordingly.
Section 80 makes provisions for the transfer of partly heard cases,
where from the evidence it appears to warrant a presumption that
the case is one which should be tried by another magistrate, he
shall stay the proceedings submit the case with a brief report to a
1st Class magistrate empowered in direct transfer.
Section 81 deals with transfer by High Court - that a fair and
impartial trial cannot be had in any criminal court subordinate
thereto; fairness and impartiality is at the heart of criminal trials
and it is therefore provided that an accused is entitled to trial
before an impartial tribunal; therefore any question of bias or its
likelihood is taken seriously.

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A judicial officer is therefore expected to disqualify themselves


where they know of any conflict that might arise either by reason
of their intimate knowledge of facts or relation to the parties.
Where a magistrate fails to disclose such interest, any party
seized of such knowledge may apply for the disqualification of the
judicial officer. John Brown Shilenje v R CR Appeal 180 of 1980
the test of reasonable apprehension was stated by Trevelyan
reasonable apprehension in the applicants or any right thinking
persons mind that a fair trial might not be heard before the
magistrate mere allegations will not suffice there must be
reasonable grounds for the allegations.
The HC may transfer a case where there is
(a) some question of law of unusual difficulty is likely to arise;
this does not amount an appeal but is a mechanism to enable the
most competent court to determine a legal question at the
earliest opportunity possible. That a view of the place in or near
which any offence has been committed may be required for the
satisfactory trial of the offence; or that an order under this section
will tend to the general convenience of the parties or witnesses;
or that such an order is expedient for the ends of justice or is
required by any provision of this code.
Section 200 of CPC
There are provisions for cases that are part-heard by magistrates
who subsequently cease to have jurisdiction through whatever
means a magistrate succeeding such a magistrate may
(a) Deliver judgment that has been written and signed but not
delivered by his predecessor;
(b) Where judgment has not been written and signed by his
predecessor, on the evidence recorded by that
predecessor, or re=summon
the witnesses and
recommence trial
Subsection 2 makes provisions where judgment has been
delivered, the succeeding magistrate is empowered to sentence
or give any other or subsection 3 makes provisions for the
accused to demand that any witnesses be re-summoned where
part of the evidence was recorded by another magistrate.
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Subsection 4 enables the HC to set aside convictions and order a


new trial where it arises from evidence that it was not wholly
recorded and the convicted court and where in the opinion of the
High Court that material prejudice has been occasioned to the
accused thereby.
OPEN COURT
Section 77 makes provision that the place at which a criminal is
held shall be held for the purposes of trying an offence shall be
deemed to be an open court to which the public generally may
have access so far as it can conveniently contain them; there is a
provision enabling the court to order at any stage of the trial that
the public generally or any particular person shall not have access
to or rem in the room or building used by the court.
In Mundia and others v R 1955 22 EACA 417 arising during the
Mau Mau emergency, the 1st Accused the court held that apart
from the provisions in the CPC that require that a court be opened
there is an inherent jurisdiction to exclude the public where this
becomes necessary in order to administer justice. But justice
must be seen to be done and the discretion under the CPC and
the inherent power are not to be used lightly. They should only be
exercised for a most compelling reason. Exclusion of the public is
justified where the administration of justice would be rendered
impracticable by the presence of the public either because the
case could not be effectively be tried because of possible violence
to witnesses or to other persons taking part in the trial or because
the parties entitled to justice would reasonable be deterred by
publicity from seeking relief at the hands of the court.
A hearing in camera may also be justified where this involves a
secret process; where the security of the state and the public
generally would be compromised by a public hearing. The burden
is upon the party seeking to oust the ordinary procedure to show
that the hearing in camera necessary, proof can by way of
affidavit.

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Judges chambers trial can be held as long as they are treated as


open court to which members of the public have access Will
John v R, 1956 23 EACA 509 it was held that nothing wrong with
trial that held in the chambers of the Chief Justice of Seychelles
even though no member of the public was present.
Section 77(2) of the CPC makes it mandatory for all trials relating
to sexual offences and though found to be insane to be held in
camera and further makes it an offence to public by whatever
means the particulars which may lead to the identification of the
victims or the picture of the victim further contravention of this
punishable by a fine not exceeding Kshs 100,000 in the case of an
individual and Kshs. 500,000 for a corporation.
JUDGMENT
At the end of trial the judicial officer shall proceed to write the
judgment of the court
Section 169 provides that each and every judgment shall be
written by or under the direction of the presiding officer of the
court in the language of the court. The judgment shall contain
the points for determination, the decision thereon and the reasons
for the decision. It shall be dated and signed by the presiding
officer in open court, at the time of pronouncement. In the case
of a conviction the judgment shall specify the offence and the
section of the law creating it, which the accused is convicted and
the punishment.
In case of an acquittal the judgment shall state the offence of
which the accused is acquitted and direct that the accused be set
at liberty. The accused shall be given a copy of the judgment or
a translation.
The first paragraph of the judgment should contain a brief
statement of the offence together with the brief particulars.
Secondly the next paragraph should contain a summary of the
evidence of the prosecution it should be in narrative for so it
should not be a summary of the evidence related by each and
every witness instead their evidence should be embodied in one

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story with reference being made where there are differences or


contradictions.
Thirdly the next paragraph should be a summary of the defence
case usually one should state the evidence of the accused.
Make it clear that there is some convergence. Where there are
differences it should be indicated in the paragraph. Reference
should be made of contested or uncontested matters in the
judgment.
The magistrate should not deal with irrelevancies but should
proceed to the crux of the matter what are the issues? They
must appreciate the issues before the court, any discrepancy
must be considered at this stage. They must expose the evidence
to scrutiny before judgment.
Conclusions based on the analysis of the evidence and reasons for
the conclusions. Whatever reasons one gives must be anchored
to the law. the reasoning must be legally competent.
The judgment must in no uncertain terms give a verdict.
The
verdict must be in respect of accused person in each and every
count. Any unusual circumstances arising in the course of trial
should be recorded where relevant. One should make reference
to the unusual circumstances in the judgment.
One must look at the standards of proof, in criminal cases it is
beyond reasonable doubt. In many criminal cases corroboration
is required.
The judgment must make reference to the
corroboration. Rules of evidence must be followed. For example
where there was a confession, the judgment must indicate that
there was a confession.
The issue of the accused persons character, evidence of accused
bad character must be excluded unless the accused bring
character into issue.
The judgment must indicate who the
accused character became an issue.

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It is easy to be tempted to think that because the accused is a


liar.
Circumstantial evidence probative value must be assessed by the
court. Elander v R it was held that in a case depending on
circumstantial evidence court must find that inculpatory facts are
consistent with the there must be no other explanation other
than that the accuse is guilty.
DELIVERY OF JUDGMENT
S. 168 substance of judgment shall be explained in open court.
the practice is that unless it is very short or straightforward most
judgments are reserved judgments.
The rules are that the
prosecution or the defence can make an application for the whole
judgment to be read. The courts read the whole judgment. One
can read the key issues arising in judgment such as the judgment
and then give copies of the judgment for parties to peruse at their
own time. Where the accused is being acquitted
No alterations can be made on the judgment after delivery. The
court cannot on its own review the case, after delivery of
judgment the court becomes functus officio
In R v Gikunja (1948) 23 1 KLR 43 the magistrate added a few
notes to his signed judgment. The Kenya Supreme Court held
that a judgment should contain all the reason which have acted
on the magistrates mind before coming to his conclusion. There
is no other forum for a magistrate after reading judgment to
explain the judgment.
NOTE Until judgment has been given and a decision made does
the court proceed to give a sentence. Judgment does not contain
a sentence. Judgment is about determining the verdict.

TOPIC TEN
124

SENTENCING
Historically sentencing has evolved from a very retributive
and primitive practice to a more humane approach.
Essentially this developed as a result of various social
scientists, criminologists and penologists who have argued
that there are many factors that contribute to one becoming
a criminal and hence the need to use a more individualized
approach in sentencing as opposed to considering that all
criminals act out of their own free rational will and thereby
using the sentencing process to reward them for the choices
that they have made
Broadly speaking sentencing has the following purposes;
To act as punishment
To act as a form of treatment
To act as a deterrent factor
As a measure of protection for society
Most sentences embody all the four aspects each is
important
In summary sentence will therefore punish the offender and
is therefore seen as a crime prevention mechanism.
In Kenya we have provisions for both mandatory and
discretionary sentencing
125

All offences punishable by death do not give room for


discretion and the death sentence once awarded and upheld
up to the Court of Appeal can only be commuted by the
president in exercise of his constitutional powers of pardon
In all other cases the courts have discretion which must take
into account the maximum sentence as provided by
statute/penal code.
Having given judgment the judicial officer must then go into
the process of awarding sentence which includes the
following:
Section 216 provides that the court may before passing
sentence or making an order against an accused person,
receive such evidence as it thinks fit in order to inform itself
as to the sentence or order properly to be passed or made.
Arising from this provision the practice is for the courts to
give the prosecution an opportunity to produce records of
the offenders past record is any additionally the prosecution
are allowed to address the court before sentence is awarded.
The offender/defence may challenge the records produced or
require sworn evidence on the general address by the
prosecutor.
Where the records are challenged then the prosecutor will
lead evidence to prove their authenticity. A similar provision
is made under Section 329 of CPC with regard to trials before
The High Court. further this section has been amended to
include victim impact statements. Section 329B applies to
an offence that is being dealt with by any court, where the
offence results in the death of or actual physical bodily harm
to any person. It can therefore
Victim Impact Statement means a statement containing
particulars of

126

(a)
(b)

In the case of a primary victim, any personal harm


suffered by the victim as a direct result of the offence;
or
In the case of a family victim, the impact of the primary
victims death on the members of the primary victims
immediate family members of the immediate family as
defined as
(a) The victims spouse
(b) The victims de facto spouse being a person who
has cohabited with the victim for at least 2 years
(c) A parent, guardian or step parent of the victim
(d) Child or step child of the victim or some other
child of whom the victim is a guardian
(e) A brother, sister, step brother or step sister to the
victim.

A primary victim is a person against whom the offence was


committed or a person against whom the offence was committed
or a person who was a witness to the act of actual or threatened
violence, the death or the infliction of bodily harm concerned,
being a person who has suffered personal harm as a direct result
of the offence or a personal harm
Section 329C makes it discretionary upon the court to determine
whether or not to receive and adopt a victim impact statement,
after conviction and before sentence. Where the primary victim
has died as a direct result of the offence then the court may
receive a statement from a family victim. The impact statement
must be in writing and such other requirements as per the rules
(rules are to be made by the Chief Justice).
The court shall not accept a victim impact statement unless it has
been filed by or on behalf of the victim to whom it relates (where
the victim is incapable of preparing the statement it may be
prepared on their behalf by a family victim); or by an on behalf of
the prosecutor and shall only consider a statement by a family
victim if it considers it appropriate to do so.

127

The court shall only consider a statement by a family victim if it


considers it appropriate to do so.
Mitigation of the offender
It is a well established practice that the court should consider
mitigation from the offender; it is at this juncture that the
offender has opportunity to inform the court of his personal
circumstances that could mitigate against a harsh/inappropriate
sentence.
Having heard the prosecution, including the victim impact
statement if any, and the accused, the court will then be in a
position to award a suitable sentence.
Factors the court considers in sentencing
The cause of crime there are various socio economic factors that
may lead to crime i.e. poverty, drunkenness, avarice, greed,
anger, lust opportunity, habit insanity ignorance. Unemployment,
broken home, psychological problems etc; whereas it is not
always possible to tell why a crime is committed where motive
can be established it ought to be taken into consideration.
The magnitude of the crime the level of seriousness and gravity
of other offence must be taken into account including the impact
on the victim and society generally
Prevalence and type of crime what is the frequency or rarity of
the type of crime, is it comparatively more prevalent in one area,
is there a sudden spare in the type of crime
Aggravating or extenuating circumstances these are
circumstances that are peculiar to the offence e.g. opportunity
provocation.
Accused circumstances, character, attitude etc these are issues
which would ordinarily arise during mitigation.
Previous conviction this will be raised by prosecution,- the court
should consider whether they are similar as well as their
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relevance in any case, they should the court a good indication of


the offenders previous interaction with the criminal justice
system.
In most cases the courts tend to be more lenient to first offenders.
The court will also consider uniformity in approach to sentencing.
This is in order to avoid disparities by the same court as well as in
comparison to other courts in sentencing offence of similar nature
etc.
This should be supported by a clear sentencing policy that is
known to judicial offices.
Such a policy will generally enhance the credibility of courts,
offenders will know what to expect and in a sense it should
therefore act as a deterrent factor when offenders can with some
amount of certainty predict the kind of sentences that their
offences are likely to attract.
TYPES OF SENTENCES
Section 24 of the Penal Code makes provision for the various
types of sentences that courts may award
Death is mandatory for murder, treason, robbery with violence or
attempted robbery with violence. It can only be imposed upon an
adult where a person under 18 years is convicted of an offence
that carries a mandatory death sentence, then they will be
detained at the presidents pleasure in which case the presiding
judge is required to forward a copy of notes of evidence taken on
the trial, with a report in writing signed by him containing any
recommendation or observations on the case as he may think fit.
The sentence cannot be imposed on a pregnant woman.
Imprisonment is the most popular punishment and it entails the
actual physical restrain of the offender by placing him in custody.
the highest duration is life imprisonment. It may be with or
without hard labour. The purpose of imprisonment is to restrain
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contain and rehabilitate the offender. The prisons department


therefore runs a number of programmes mostly skills imparting
ones such as carpentry woodwork knitting etc additionally they
have counselling and chaplaincy services for the offenders.
The court may award the sentence to be served either
consecutively or concurrently where the offender is sentenced to
more than one offence. This is where somebody is charged with
more than one offence. Each count attracts their own sentence
and there is no generic sentence.
The court does not determine which prison the offender will go to.
Prison department has maximum and medium security prisons,
and the offenders are distributed to the facilities depending on
the number of years of sentence, the nature of offence and their
previous records consideration may also be given to the type of
programme that the offender may be most suited for and its
availability to this end there is a reception facility that classifies
and categorizes offenders for this purpose. For example there is a
reception facility at Kamiti which determines where prisoners are
best suited. They dont necessarily have to stay at Kamiti.
The prisons department is governed by the Prisons Act which has
various provisions including dietary, disciplinary, classification etc.
The Act also significantly makes provisions for remission which
any offender serving a sentence of more than 1 month is
immediately entitled to unless they have committed breaches in
prison which have lead to deductions on their remission period.
this is meant to enable the prisons department to try and achieve
some objective with an offender by waiving a third of the
sentence for model prisoners.
The Act also makes provision for parole/remission which any
offender serving a sentence of more than 1 month is immediately
entitled to unless they have committed breaches in prison which
have lead to deductions on their remission period.
the Act
makes provisions for Parole, but it is not practiced in Kenya.
FINES
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Fines are rarely imposed in felonies but are frequently utilized in


misdemeanors an statutory offences the usual practice is for the
amount of fine to be specified in the statute or Penal Code and it
can be specified either as a minimum or a maximum or a
combination of both.
Section 28 of Penal Code makes provision for those cases where
the amount of fine is not specified and it is required that the fine
should not be excessive.
Section 28(b) provides a table to be used by judicial officers
where a fine is awarded and in default an imprisonment term is
provided the provisions give the maximum fine and maximum
default period. this is just a guideline to enable courts not to
overshoot.
The award of a fine should not be denied on the basis of the
offenders financial status.
Mita v R the appellant an air hostess was convicted on her own
plead of assault causing actual bodily harm for biting the
complainant on the chin; the magistrate sentence her to 2
months imprisonment without option of fine, although she was a
first offender and was contrite according to the magistrate a fine
would not have served any purpose as the appellant appeared to
be earning a lot of money. Madam J held that irrespective of their
financial standing it is not wrong to impose a fine unless the
circumstances of the case precludes the imposition of such
punishment. The contrary cannot be correct, otherwise every well
paid accused person irrespective of the nature of the offence
would be sent to prison by the courts without the option of a fine.
Forfeiture Section 29 of the Penal Code makes provision for
forfeiture for offences committed under Sections 118 and 119 of
the PC where the property the subject of which the order has
been given cannot be traced then the court will assess the value
and require the offender to forfeit such amount to court.

131

Compensation Section 31 empowers the court to order an


offender to compensate any person injured by his offence, either
in addition to or in lieu of any other penalty in practice criminal
courts will usually on order compensation where the monetary
value is straightforward, otherwise compensation is usually left to
the civil courts to comprehensively asses.
Mukindia v R 1966 EA 425 the court of appeal observed that the
powers to award compensation should only be used in the
clearest cases as when a person has suffered a comparatively
minor physical injury or has been deprived of property or whose
property has suffered damage and such deprivation or damage is
of readily ascertainable and comparative a small value.
The current practice does not take into account the fact that there
are persons who cannot afford civil proceedings and in such cases
they will remain largely uncompensated deriving satisfaction only
from the knowledge that the offender has been punished in the
criminal process.
Otherwise finds on the facts proven in the case that the convicted
person has by virtue of the act constituting the offence a civil
liability to the complainant or another person. Further provisions
have been made by section 175 of the CPC to the effect that
where a court imposes a fine or a sentence of which a fine forms
part or where such sentence is confirmed ion appeal, revision o
The court may order the convicted person to pay to the injured
party such sums as it considers could justly be recovered as
damages in civil proceedings by the injured party against the
convicted person in respect of the civil liability concerned. Such a
court may not award an amount that is in excess of its civil
jurisdiction.
Where the court considers that the complexity of evidentiary
matters affecting the quantum of damage of evidence before it in
relation to Such damages, the insufficiency of evidence before it
in relation to such damages or their quantum, or the provisions of
132

the Limitation of Actions Acts or any other circumstances,. Where


the court considers that such an order would unduly prejudice the
rights of the convicted person in respect of the civil liability, that
order will not issue.
Section 177 of the CPC also makes provision for restitution of
property that is found in possession of an offender the court
may order such property to be returned to whoever it considers to
be entitled to it, including the offender.
Further that the court may order that the property or party
thereof; be applied to the payment of fine, costs, or compensation
which ought to be paid by the offender.
Security for good behaviour Section 33 provides that an
offender may be required by the court to enter into recognizance
with or without surety in addition to any other sentence to keep
the peace for a specified period.
Under Section 35 there is Absolute and Conditional Discharge
this section provides that where having regard to the
circumstance including the nature of offence and the character of
the accused that it is inexpedient to inflict punishment and that a
probation order would not be appropriate, then the court may
absolutely or conditionally discharge the offender upon the
condition that they shall not commit other offences for a period
not exceeding 12 months a breach will result in the accused being
brought back to court and sentenced for previous offence in
respect of which he had been discharged.
Probation this is the system where the offender instead of being
awarded the other sentences provided is placed under the
supervision of a probation officer; the aim of the sentence is to
rehabilitate the offender while he is living in his normal
surroundings and continuing with his routine in life it is governed
by Cap 64 Laws of Kenya.
The court before making a probation order takes into
consideration the nature of the offence, age of offender, whether
133

he is a first offender. The magistrate will then request for a


probation officers report to be prepared. The report will be
prepared based on interviews with the accused, victim of crime if
need be, other persons that the probation officer considers
relevant. The aim of the report is to determine the social
circumstances of the offender and whether or not the offender
would benefit from the probation. The report will usually contain
a recommendation on the suitability of the offender for probation
or any other sentence. It is then handed to the magistrate who if
they accept it will explain to the offender the terms, including an
indication by the offender that they are willing to be placed on
probation and their consent must be recorded. The terms of
probation may include issues relating to residence, use of
alcoholic beverages etc.
The offender is required to signify the acceptance and willingness
to abide by the terms and conditions of the probation order. An
order will then be made in the appropriate form and signed by the
offender and the court. a breach of probation order will result in
the offender being produced in court and the court may then
cancel the order and substitute probation with any other
sentence.
A probationer is then released to be supervised by a specific
probation officer. There are provisions for a probationer who is
moving to a different location to transfer the order for supervision
by the nearest probation officer.
Community Service Orders: replaced EMPE made under Act NO.
10 of 1998 Whereas, the EMPE had been meant to reduce
congestion in provisions and provide a mechanism for enabling
rehabilitation of the offender within the community, there was a
lot of dissatisfaction with its application and implementation.
Under EMPE anyone who was liable for imprisonment for term no
exceeding 6 months could be place on EMPE, each locality had
designated EMPE centers which were invariably local
administrative officer e.g DO and Chiefs officers as well as the
courts themselves. The offenders

134

Some of the complaints included that it did not lead to


decongestion of prisons and still left a lot of petty offenders in
prison. It was also argued that it was misused by administrators
to service their own private works. Some of the work carried out
was mundane and had no impact for public expenditure. It was
also argued that the timing of when it could be served ran counter
to the idea that one could serve and still continue working i.e.
there was no flexibility, so offenders would still lose their jobs as a
result of carrying out the punishment. There was also disquiet
with the idea that whereas this was intended to be a community
based idea
In response to all these complaints and to the increasing numbers
of prisoners and the deterioration of prison conditions, matters
were made worse when a conference organized to discuss prison
reforms was told by the H C Okubasu that being sent to a Kenyan
prison was equivalent to a prison sentence
Section 3 of the Act provides as follows where any person is
convicted of an offence punishable with imprisonment for a term
not exceeding three years with or without the option of fine or
imprisonment for a term not exceeding three years but for which
the court determines a term of imprisonment for three years or
less, with or without the option of a fine, to be appropriate. The
court may, subject to this Act make a community service order
requiring the offender to perform community service.
(a) Community service shall c
Types of the works carried out under the Act are
Construction or maintenance of public roads or roads of
access;
Afforestation works;
Environmental conservation and enhancement works;
Projects for water conservation, management or distribution
and supply;
Maintenance work in public schools, hospitals and other
public social service amenities; works of any nature in a
foster home or orphanage; rendering specialist or
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professional services in the community and for the benefit of


the community.
The court may require report from a community service officer
before making an order. The court shall not make an order unless
the offender is present in court, and there are adequate
arrangements for the execution of the order. Where a report
exists the court must be satisfied that the offender is a person
suitable to perform community service.
The offender must consent to being placed on Community Service
Orders (CSO).
In terms of management the Act creates a National Committee
whose chairman is to be a Judge of the High Court appointed by
the CJ
Members include
DPP or his nominee
PS, Provincial Administration and Internal Security or his nominee

Two persons with training and experience in the criminal justice


system, one in teaching of law and the other a magistrate of first
class, both to be appointed by the CJ.
Five members appointed by the Minister out of a list of 7
nominees by the National Committee, two of whom shall be
representatives of NGOS involved in social welfare work
registered under the NGO Coordination Act.
The National Coordinator
The committee has powers to co-opt
FUNCTIONS OF THE NATIONAL COMMITTEE
1.
To advice the minister and CJ on the proper
implementation of the Act;
2.
Coordinate direct and supervise the work of the
community service officers;
136

3.
4.
5.

Collect and collate date on the operation of this Act for the
purpose of improving the national policy on community
service orders
advice the CJ on any need for enhanclating to revision
under the CPC so that the courts may make better use
ed application of the provisions

once an offender is placed on CSO orders the offender is require


to report to the supervising officer specified in the order for
assignment of work. Perform for the period specified in the order
such works at such times and place as he may be instructed by
the supervising officer. Report to the supervision officer any
changes in address that may occur from time to time.
These orders are yet to have the desired effect, prisons are still
complaining of congestion, meanwhile the national committee
keeps releasing huge figures of those supposedly under CSO.
These problems could be stemming from the fact that judicial
officers are still treating CSO in the same manner that they
treated EMPE, and there awarded them for very minor offenders
as opposed to using the cut-off point of 3 years imprisonment.
The sentence is meant to be awarded in hourly terms and yet
there are no clear rules and table to assist judicial officers in
determining how to march the envisaged prison sentence and the
corresponding hours.
The provision for district, divisional and location committees is
made by the Act which introduces a bureaucracy that does not
exist in the judicial system, and yet the programme is meant to
be judiciary driven. It would make more sense if the provisions
were made for mandatory committees in each magisterial station
whose membership should largely reflect all the criminal justice
players at the local level including the placement agencies
benefiting from CSO to be represented.
There is very little public awareness that was created prior to and
during the implementation of the programme and yet its success
137

depends to a large extent on how receptive the public is towards


it. This is especially so because this kind of sentence is meant to
rehabilitate the offender within the community.

Probations of Offenders Act


CSO
Borstal Institutions - there is a specific period within which
children have to be in those Borstal institutions. Shimo la Tewa
and Kakamega.
Youth corrective centre at Kamiti This has a minimum or
maximum period and has no remission. It is a militarised system
but deals with young males who are first offenders.
Approved Schools are ran by childrens departments deal with
child offenders and children in need of care and protection. One
of the criticisms is the fact that they mix children in need of care
and protection with the child offenders. They are both for girls
and boys. They are not sufficient and cater for very young
children. They have schools.

TOPIC ELEVEN

TRIALS BEFORE THE HIGH COURT


Prior to the Act No 5 of 2003, trials before the High Court were
subject to committal proceedings, which took place before a
magistrate who then committed the accused for trial before the

138

High court if they were of the view that the evidence contained in
the committal bundles warranted it.
Key to these proceedings were the committal bundles which
essentially contained all the evidence, including statements that
the prosecution had against an accused person for trial before the
High Court. even though Act No. 5 has done away with these
proceeding, but is noteworthy that the High Court still requires
the bundles before a trial can proceed before it.
In the absence of the proceedings accused persons whose cases
are exclusively triable by the High Court to go straight to the
court for plea taking in the same manner as in the subordinate
courts.
Because all cases exclusively triable by the High court are not
bailable the high court does not entertain applications for pre-trial
bail. A major distinction of high court criminal the trials are
conducted together with the aid of assessors,
Section 262 on Assessors makes it mandatory for trials in the
high court to be aided by 3 assessors.
Assessors were
incorporated by the colonial system in Kenya to enable the largely
white judiciary understand the local customs and culture of the
various tribes in Kenya initially assessors were mandatory for
both civil and criminal cases where the parties were natives.
Dhalamini v King 1942 AC 583 Lord Atkin articulated the duties of
an assessor the duty of an assessor is not simply to aid, it
operates and is no doubt intended to operate as a safeguard to
natives accused of a crime and a guarantee to the native
population that their own customs and habits are not
misunderstood.
Selection of assessors is covered under Section 265 of CPC
provides that all persons aged between 21-60 are eligible to serve
as assessors; the following are excluded;
1.
The President and members of the cabinet
2.
the speaker and members of the national assembly
3.
the clerk and official reporters of the national assembly
139

4.

persons actively practicing as priests or ministers of their


respective religions
5.
medical dental and legal practitioners in active practice
these does not include nurses, clinical officers etc
6.
Officers of the armed forces, members of the police force,
members of prisons services members of staff or schools
probation officers
7.
Permanent Secretaries MD Kenya railways telkom Kenya
8.
judicial officers staff of the attorney generals chambers
9.
mayors chairmen of councils, town clerks
10. persons disable by mental or bodily infirmity
11. any other persons exempted by the Attorney General
section 269 of the CPC at least 7 days before trial the Registrar of
the high court may send a letter to a magistrate holding
jurisdiction of 1st class where the trial is to be held requesting
that he summons as many persons as seem to the trial judge to
be required for the schedule trials to serve as assessors.
The summons must be in writing and must specify time and place
of attendance. Thereafter the trial judge will select which of those
summoned he will use in specific trials.
Whereas there is no provision in the CPC, the practice is that an
objection too an assessor can be raised by a particular assessor
may be raised.
Ndirangu v R 1959 EA875 the appellant in his murder trial chose
to remain mute throughout. On appeal against his conviction
argued that the wife of one of the assessors at his trial was the
sister of the deceased wife and he complained that this had
therefore prejudiced him holding that such an objection on good
grounds is clearly good practice, the court went on to state that if
injustice would be occasioned by such an assessor sitting with the
judge then he should be dismissed.
Andiazi v R 1967 EA 813 THE COURT STATED THAT WHERE AN
OBJECTION IS RASIED THE TRIAL JUDGE SHOULD INQUIRE INTO IT
140

IN A KIND OF TRIAL WITHIN TRIAL AND DEPENDING ON WHERE IT


IS FOUNDED OR NOT.
It would appear that to obviate any objection that an inquiry
should disclose it before trial made as to whether or not there are
objections it may also be best for a provision or practice that
assessors who know of any conflict should disclose it before trial.
There is no limitation as to the number of times that one may
serve as an assessor
As a result of lack clear provision the practice has been that a list
of assessors is kept by the various high court registries, invariably
these have tended to be persons in public service. And contrary
to assessors being common persons, some have become
professional by virtue of being called upon consistently to serve p
this is certainly not a good practice and ought to be discouraged.
The judge has total discretion which must be exercised judiciously
in whom he chooses as assessors see W Y Wilken 1965 EA 286
IF YOU ARE ASIAN SHOULD THE ASSESSORS BE ALL ASIAN.. the
court held that there was no need for racial balance whereas it
would be important to have the semblance of the accused person
identified.
The actual nature and extent of function of the assessors in
criminal trial sis not full defined by statute Gusambizi Wesonga
1948 EACA 65 the court noted that in the exercise of any
functions of assessors the court is always to apply the test of
what is fair to an accused person, keeping in mind and
considering the principles of natural justice.
The High Court trial session to start, it must start with the 3
assessors, insignificant absence by one of them cannot nullify the
trial Assah v R [1937] 4 EACA 41
Section 322 of the CPC makes provision that at the end of the trial
the judge may sum up the evidence of both the prosecution and
the defence to the assessors the practice has been that the
141

judges sum up to the assessors. In the case of Kalinga v R 1958


EA 684 it was held as follows the opinion of the assessors can
be of great value and assistance to a trial judge but only if they
fully understand the facts of the case before them in relation to
the relevant law. if the law is not explained an attention not
drawn to the salient facts of the case, the value of the assessors
opinions is correspondingly reduced.
Section 322 also provides that the assessors after the law has
summarised the judge is to call upon them individually to give
their opinions individually and orally, which shall be recorded by
the judge. In practice they give reasons for their opinions; as
early as 1943 in the case of Pauolo Lwevola v R [1943]10 EACA
63, the court stated that such reasons become even more
relevant in the event of an appeal.
There is no provision for consultation with each other Abdalla
Omer v R 1958 EA 725 and R v Mungu Atosha [1938] 5 EACA both
cases established that it is neither illegal nor irregular for the
which should then be recorded or to retire to consult but on
coming back they should give their individual opinions
Section 322(1) CPC provides that the opinion of assessors if not
binding on the judge. After the assessors have given their opinion
the judge delivers judgment.
Where the judge comes to a finding on the facts which is contrary
to opinion unanimously shared by the assessors, it is good
practice for him..
It has been argued that there is need to change the law, to clearly
define the role of assessors.
The law should be changed to conform to the idea of an assessor
being a common man, by limiting the number of times one may
serve. There is need to examine the value of the assessors
opinion vis--vis the judges own. What value they add to the
process has been questioned, the judge can go contrary to their
opinions. Some Judges argue that they find assessors useful and
142

it is usually good when assessors make the same finding as the


judge, this gives comfort to the judge that he is right. there is no
provision requiring the judge to state their reasons for not taking
the opinion of the assessors.
Where the high court reaches a verdict of conviction they will
follow the same procedures in determining sentence as the
subordinate courts, notwithstanding the fact that in most cases,
they can only award the mandatory sentence.
Act no 5 of 2003 read
APPEALS AND REVIEWS
Cases from the subordinate courts may be subject to a first
appeal before the high court and a second appeal to the court of
appeal.
Section 347 CPC provides that he first appeal may be on a matter
of law and or fact.
Section 348 CPC provides that in the case of a plea of guilty one
can only appeal on the extent or legality of the sentence.
Section 348A of he CPC provides for the attorney general to
appeal against acquittal or an order in favour of the accused only
on a point of law.
Section 349 the appeal must be lodged within 14 days of
sentencing. The time can be extended if failure to lodge has been
occasioned by the inability of the accused or his advocate to
obtain judgment and proceedings through no fault of their own.
Appeals are to be in written form in a petition and they are to be
presented either by the accused or his advocate and every appeal
must be accompanied by a copy of the judgment or order
appealed against (unless the High Court rules otherwise).

143

It shall be signed by whoever is lodging it and must contain the


matters of fact or law in regard to which the subordinate court is
alleged to have erred. The petition must indicate the address for
the service of the document. The appellant shall not be allowed
at the appeal to include other grounds other than those they have
set in the appeal.
They may amend without notice to the AG and leave of Court, but
with notice to the Registrar where within 5 days of filing they have
not received copies of the proceedings from the subordinate court
having applied for the same before he expiry of the 14 days. One
can amend their grounds if they dont have the proceedings. This
provision of making amendments without AG or leave of court
does not apply where the accused is represented on appeal by
the advocate who represented him before the subordinate court.
Section 350(2)(ii) (v) of CPC MAKES ELABORATE PROVISIONS ON
SERVICE OF THE PETITION
Section 351 CPC provides that accused persons who are in prison
may present their petition through the officer in charge of the
prison for onward transmission to the court.
Section 352 CPC makes provision for summary rejection of
appeal. Where the appeal is brought on the ground that the
conviction is against the weight of evidence, or that the sentence
is excessive. If it appears to the judge that there is sufficient
evidence to support the conviction and there is no material to
raise doubt on the conviction or to warrant the reduction of
sentence; they may without setting the matter for hearing reject
the appeal by making an order certifying that they have perused
the record and are satisfied that the appeal has been lodged
without sufficient grounds for complaint in which case the
accused need to be given opportunity to be heard in support of
the appeal. In all other cases they must be given opportunity to
support the appeal. The accused need not to come and adduce
evidence in support of appeal in this case. in other cases the
accused is given an opportunity to support the appeal.
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Section 352A CPC makes provision that where the court is of the
opinion that conviction cannot be supported and the AG has
informed the court in writing that he does not support the
conviction, the judge may summarily allow the appeal.
REVIEWS
Covered under Section 362 CPC provides for Review by the HIGH
COURT the high court may on its own motion call for and examine
the record of any criminal proceedings before a subordinate court
for the purpose. Satisfying itself as to the correctness, legality or
propriety of any finding, sentence or order recorded or passed
and as to the regularity of any proceedings of any such
subordinate court.
Section 363 CPC provides similar powers to a subordinate court of
first class jurisdiction with regards to matters in its jurisdiction it
shall where it finds fault forward the records together with
comments/remarks to the High Court. if the court is not of first
class but notices the mistake they can forward the case to a
magistrate of first class.
The powers of reviews allow for the courts to internally correct
mistakes without waiting for the accused or the state. it also
allows for the High Court to exercise its supervisory powers over
the subordinate courts.
Section 364(5) states that when an appeal lies from a finding,
sentence or order and no appeal is brought, no proceedings by
way of revision shall be entertained at the instance of the party
who could have appealed.
In Kenya parties make applications for the HC to use their review
powers as opposed to the HC to review it on its own accord.
However it has been held that the High Court will still review its
own cases. Uganda v Polasi 1970 EA 638 the accused was
sentenced to an illegal term of imprisonment, he filed and appeal
and then withdrew it and was thereby deemed dismissed the
145

sentence which was subject to confirmation had not been


confirmed Dickson J stated that the case has come to this courts
notice in the exercise of its functions. The accused, it would see,
was unaware of the illegality of the sentence once this state of
affairs has come to the notice of the High Court
The court should be able to internally correct illegalities. If a
sentence is illegal and if the accused is not aware that they can
appeal it is incumbent upon the court to take steps upon such
illegality.
If an order cannot be made under revision to the prejudice of the
accused unless he has had the opportunity of being heard either
personally or by the advocate
POWERS OF THE COURT IN APPEALS OR REVIEWS
In the case of an appeal where the court upon hearing an appeal,
it may dismiss or allow the appeal. Section 354 states that in
both appeal and review where the appeal or review emanates
from a conviction the court may
1.
2.
3.
4.
5.
6.

Reverse the finding and sentence;


acquit or discharge the accused
Order a retrial before a competent court
alter the finding maintaining the sentence,
Reduce the sentence with or without altering the finding.
With or without reduction or increase, with or without
altering the finding, alter the nature of the sentence.

Appeals against acquittal or order refusing to admit complaint or


formal charge or order dismissing a charge;
Where the appeal is against acquittal, essentially these are
powers where the law is in favour of the accused, the finding is
always likely to favour the prosecution the court will hear and
determine the matter of law and thereupon reverse, affirm or vary
the determination of the subordinate court. the prosecution can
to the HC to review that order to reverse or review and vary that
146

order. Once the court remits the matter with its opinion to the
subordinate court, either for re-hearing or any other order that it
may deem fit.
Section 364(1) (b) where it is an acquittal, the court without
fully determining the matter can exercise the power of an
appellate court.
Section 358 makes provision for the court to take further and
additional evidence in the case of appeal and revision giving
reasons for doing so. Such evidence may be taken by the High
Court itself or it can direct it to be taken by a subordinate court in
which case such a court is required to certify such evidence to the
high court. the accused or his advocate shall be represent when
additional evidence is taken unless directed otherwise.
BAIL PENDING APPEAL
Section 357 of the CPC provides that the High Court or the
subordinate court which convicted and or sentenced the accused
person may order the release of that person on bail with or
without sureties and the accused person can also request for an
order maybe made suspending the execution of his sentence
pending the e appeal where bail is denied.
Where bail is denied by the trial magistrate the accused does not
have a right to make a fresh application before the High Court,
instead he has the right to appeal against such refusal and such
appeal shall be heard and cannot be summarily rejected under
Section 352 of the CPC.
Notwithstanding these factors it must be borne in mind that unlike
bail pending trial, bail pending appeal is considered within the
context of an existing legally binding finding of guilty. Somo v R
[1972] EA 476 at 480 Trevelyan J noted; It seems to me that
where these applications are
The court will take into consideration all the factors together
including all the factors together including factors taken into
consideration in bail pending trial such; the character of the
147

accused, likelihood to attend appeal, where the application is


successful the court will proceed to give bail terms and the
procedure is similar to the that in the subordinate courts.
In the High Court sureties are examined and approved by the
deputy registrar.
Bail pending appeal can be granted where the High court is
exercises its power of review under section 362
The court of appeal has held on various occasions that it has no
jurisdiction to entertain appeals from high court refusals to grant
bail pending appeal Micheal Otieno Ademba v R court of Appeal
Reports 1983 volume 1 at 187
Essential factors are whether the appeal has been lodged,
The trial court is the first court that can be seized of the matter. It
is unlikely for trial court that has found you guilty to sit back and
consider whether they should give you bail pending appeal. If
there are high chances of success, you are asking the trial court
to evaluate the evidence, whether it is sufficient to sustain a
conviction at the appellate level. Subordinate courts in some
cases are able to evaluate and grant bail pending appeal.
HABEAS CORPUS APPLICATIONS
Habeas corpus has its origins in the common law where it
developed as a writ it may be described as a prerogative
process of securing the liberty of the subject by affording a means
of immediate release from unlawful or unjustifiable detention,
whether in prison or private
Because it is a prerogative writ it can only be entertained by the
High Court. section 389(1) HC may whenever it thinks fit direct
a)
That any person within the limits of Kenya be brought up
before the court to be dealt with according to the law;
b)
That any person illegally or improperly detained in public
or private custody within those limits to be set at liberty.
148

c)

d)

That any prisoner detained in a prison situated within


those limits be brought before the court be there
examined as a witness in any matter pending o to be
inquired into that court;
That any prisoner so detained be brought before a court
marital or commissioners acting under the authority of a
common the President for trial to be examined touching
on any matter pending

Are habeas corpus applications criminal or civil in nature there is


no question to that question Grace Ribingira the EA Court of
appeal observed that any application for the writ of habeas
corpus would only be civil in nature, being criminal ..; general
understanding is that these procedures should be general in
nature.
The court therefore can determine certain applications either by
way of civil or criminal, where it is criminal no appeal lies, where it
is civil one can appeal this is especially cases where one has a
private citizen can hold another citizen illegally, since this person
has no authority to hold another person, the private person since
they cannot prosecute a criminal offence, the matter will be civil
in nature and if the court were not to allow the application, then
one can appeal against the order.
Where the application is not dismissed at the ex parte stage it will
proceed to interparte pleadings. It is in the civil process that ex
parte applications are found. The court ones seised of the ex
parte application can make an order or make an order that the
other party be called to reply. If the court decides that this
person is being legally held they will dismiss the matter.
The application shall be filed in duplicate and forward to the AG, a
date is taken for the return of summons. Once these summons
are issued it is expected that the party against whom it has been
issued will also file a reply, this is a very documentary process.
The reply must also come up with affidavits.

149

The applicant may meanwhile be released on bail if in detention


or police custody, where in custody the court may order their
release on terms that the court deems fit. At the hearing the
applicant shall begin and the party resisting shall then tender
their evidence and then the applicant shall be entitled to reply
and thereafter the court shall make a decision. Where the
application is successful the court shall make an order requiring
the party holding the applicant to release the person. It is the
prison or police station that is served with the orders to release
the person being held. Where the order is sought that requires
the prisoner to reply, the application may be made ex parte and
requires the applicant to testify.
A prisoner serving lawful sentence and you require them
produced to give evidence, the court has discretion to make the
order for the person requesting for the prisoner to pay the costs.
In the case where it is a civil prisoner, the application shall be
judges chambers by person requiring the prisons attendance but
no order shall be made without hearing the civil prisoner who
should decide whether they want to comply with the order, the
court will also decide whether the evidence is essential.
Habeas corpus are rarely made to require people in prison to give
evidence, what usually happens is that an application is made by
the prosecutor for the production of such a person, if before the
subordinate court they make an order requiring the production of
such a person. A prisoner may be refusing to come to court and a
habeas corpus is necessary so it can be served to the prison who
then must produce the prisoner.
A judge may order the body of any person alleged to be detained
to be produced before him in court.
Due to the kind of violations that the writ is expected to pre-empt
the writs are treated with urgency. It is one where one can stop a
judge on the street and require of them to attend to the matter.
Once can serve it if a person is in danger and the only remedy
would be a judicial order requiring the person to be released.
150

INQUESTS:
Provisions for inquests read the provisions the provisions were
amended.
TOPIC TWELVE

INQUESTS/INQUIRIES
Inquests are inquiries into sudden death as well as where a
person has gone missing and is believed to be dead.
Section 385 of CPC provides that a magistrate of first and second
class or one specially empowered by the Chief Justice shall be
empowered to hold inquests.
Section 386 provides that a police officer in charge of a police
station or any other police officer specially empowered by the
Minister in that behalf on receiving information that a person has
(a)
person has committed suicide;
(b)
Been killed by another or by an accident; or
(c)
Has died under circumstances raising a reasonable
suspicion that some other person has committed an offence;
(d)
Is missing or believed to be dead;
Shall give such information immediately to the nearest
magistrate empowered to hold inquests. They are additionally
required unless otherwise directed by any rule made by the
Minister, to proceed to the place where the body is and
They are expected to investigate and then draw up a report on
the apparent cause of death describing such wounds fractures,
bruises and other marks of injury as may be found on the body
and stating in what manner or by what weapon or instruments
151

(if any) the marks appear to have been inflicted. This is based
on the opinion of the person visiting the scene.
That report is made based on the evidence compiled by officers
specially trained on scenes of crime and forensic issues.
Where the police officers are not able to establish the course of
death at the scene Section 386(2) of the CPC provides that
where he considers it expedient the police officer shall, subject
to any rule made by the Minister forward the body, to a
medical officer for examination, ensuring that transportation of
the body shall not render examination useless. The manner in
which the body is transported may interfere with the evidence
and thus importance to preserve body as it is.
The pathologists are required to make a report on the cause of
death based on the evidence that they find. They will perform
a post-mortem. The report is then forwarded to the magistrate,
empowered to hold an inquest.
In the case of a person who is missing and believed to be dead,
the report is to be sent to the AG through the Commissioner of
Police detailing all supporting evidence and the grounds upon
which the death of that person is presumed to have taken place
this report must of necessity take into account the duration
for presumption of death i.e. 7 years duration where the person
has not been seen or heard of by family friends etc.
Where there are fatal tragedies i.e. the Mtongwe Ferry, the KQ,
duration may be shortened since the cause of death is known
and it is only bodies that have not been traced. We use the
same process
Subsection 3 obligates any person who finds or is aware of a
body of a body of a person believed to have committed suicide
or has been killed by another or by accident to make a report
immediately to the nearest administrative or police officer.

152

Section 387 makes special provisions where a person dies in


the custody of the police or a prison officer, or in prison, in such
cases a magistrate empowered to hold an inquest may hold an
inquiry into the cause of death either instead of or in addition
to the investigations held by the police or prison officer. The
process of finding out the cause of death must be transparent
and hence the need for an inquest.
While conducting inquests magistrates have powers to examine
a body that has already been interred; or to cause a body to be
disinterred and examined. Where family are concerned that
evidence has come out that is circumstantial and they need to
know with certainty the cause of death.
Inquests commenced by way of police placing files before the
court with all the evidence available to them the files are then
perused by a magistrate to determine whether or not an
inquest should be held and invariably inquests are
recommended. Where the cause of death is known and is clear
from the files and the persons who committed the violence are
known there is no point in holding an inquest.
The case is then set down for hearing and at the hearing the
prosecution will usually lead the evidence. In Kenya we do not
have the coroner system and so inquests are not conducted by
a coroner. One of he weaknesses of having prosecutors is that
they prosecute cases on a daily basis and they may make the
inquiry a mundane process.
At the hearing the prosecution will indicate all the witnesses
that they have, and these witnesses may include suspects the
reason being that an inquest is similar to an inquiry and
therefore at this stage the prosecution may not have gathered
sufficient evidence to warrant the prosecution of a specific
individual. The practice is for the family of the deceased to hire
advocates who work closely with the prosecution but have the
right to cross examine witnesses persons also allowed legal
representation who may be adversely mentioned are allowed
legal representation with a right to cross examination.
153

Since the aim of an inquest is to try and establish the truth as


well as seeking information; there is more latitude given to the
prosecution in leading the witnesses, a lot of hearsay for
example may be adduced and allowed.
For this reason;
witnesses and new evidence that may not have been available
prior to the commencement of the inquest may be called as the
inquest progresses. In an inquest as the case proceeds, more
and more evidence is adduced and investigations continue
because at the initial stage one may not have all the witnesses
having been interviewed and anybody adversely mentioned
would like to interrogate the issues that arise.
Since the aim of an inquest is
well as seeking information;
prosecution in leading the
witnesses and new evidence
prior to the commencement of
inquest progresses.
Section 387(3)
termination

provides

to try and establish the truth as


there is more latitude to the
witnesses.
For this reason;
that may have been available
the inquest may be called as the

that

where

before

or

at

the

Where the person attends court and the inquest has already
commenced, then the magistrate shall commence do novo by
way of trial if in the middle of the inquest the magistrate
decides the offence has been committed by a known person,
the person will be arrested and there will be a new trial. It may
not mean that the person has committed murder, it could be
even a traffic offence so the circumstances and evidence will
direct the magistrate as to what is the best offence to be
preferred against the person.
Where the inquest has not commenced i.e. where the
magistrate forms such an opinion at the stage of perusing the
police file then they will not proceed with inquest but institute
the process of such persons standing for trial. Where the
magistrate forms the opinion that an offence has been

154

committed by some unknown person he shall record his opinion


and send a copy of the opinion to the AG.
Where the magistrate forms the opinion that death has
occurred but no offence has been omitted or that it has
occurred through misadventure, then the magistrate shall
record such an opinion accordingly.
With regard to inquiries relating to missing persons believed to
be dead, the magistrate at the termination shall report the case
together with his findings to the attorney general, including
recommendations whether or not the person regarding
presumption of death under Section 118A of the Evidence Act
should; be reduced and if so by what period. The 7 years
should be substituted; considering the circumstances of the
specific case.
Thereafter the AG after considering the opinion from the
magistrates shall refer the matter back with a direction on the
period of substitution and that an order be made by the
magistrate accordingly in the court file; and upon expiration of
such substituted period the Registrar General shall be
empowered upon production of such order by the officer
entitled to apply for and receive a grant of representation
under the Law of Succession Act to issue such person with an
appropriate certificate of death in accordance with the Births
and Death Registration Act.
Under Section 388(1) CPC the AG has powers to direct a
magistrate to hold an inquest in accordance with section 387 of
the CPC.
Section 388(2) CPC provides that where a magistrate
terminates an inquest under Section 387; the Attorney General
where he considers that there is need for further investigations
may direct the magistrate to reopen the inquiry and further
investigations are then began, in which case the magistrate
shall have full powers to reopen the inquiry and make further
investigations and proce4ed in same manner as if the inquiry
155

had not been terminated. For example in Julie Ward the case
was re-opened and people charged, another inquest still went
on. As long as the truth has not been established one can
continue to investigate.
The Attorney General may also direct whether there is need for
the body to be disinterred and examined. These provisions do
not apply where the magistrate has made a finding hat a
person has committed the offences of murder or manslaughter.
CONVICTIONS
CHARGED

OF

OFFENCES

OTHER

THAN

THOSE

Summary
Section 179-190 of the CPC sets out specific cases where this
may happen
When one is charged with an offence consisting of several
particulars, a combination of some only which constitutes a
complete minor offence; may be convicted of the offence
although he was not charged with it.
Where the facts provided reduce the offence to a minor one.
One may also be convicted of attempt of the offence charged
depending on the facts and evidence adduced.
Offences relating to the infant or unborn child and abortion
matters, it is possible to charge a person with murder of a child
and then it can be reduced to infanticide. In such situations if
the circumstances show a different offence one can be found
guilty of that other offence.
In manslaughter in connection to driving a motor vehicle may
be found guilty of causing death by dangerous driving.
Administering Oaths these are offences that one can be
charged with where they did not actually administer but
recruited people.
156

Charge of rape may be found guilty of any other offences c/s


144, 145, 148, 166 of CPC.
Charge of Incest section 144 and 145 of PC
Charge of Defilement 144 and 148 of the Penal Code
Offences under Charter XXIX of the Penal Code
Theft Sections 322, 323 of the Penal Code or obtaining by
false pretences. The court may reduce charge of theft and
substitute with the one revealed by the evidence.
Obtaining by false pretences evidence can lead to a charge of
theft.
One cannot find one guilty with an offence that one is charged
with, it can be comparable or less.
Stock theft under PC
Matters arising under Section 67 and 84 of he Constitution are
brought before the High Court by way of originating notice of
motion.
Previous to 2001 the CJ even though empowered to make rules
for constitutional references had not formulated any and so
there was never clarity of how people could agitate for their
constitutional rights when violated, the rules are very helpful,
people know what to do.
There are forms created and Motion is per form A of the rules.
It must give concise grounds for the application and supported
by applicants affidavit.
Subordinate courts do not have the Forms and the Forms apply
to the High Court Applications. The High Court may move on
its motion to examine a matter under Section 65(2) OF THE
Constitution.
Where the matters requires interpretation by parties to a
criminal suit the subordinate court may refer the matter by way
of Form B, or a party may request the subordinate court to
refer the matter by way of Form C.
this means that a
157

magistrate on their own motion can decide that there is a


matter that needs to be interpreted by the High Court and can
request for application by the High Court by filling Form B. the
High Court may also request the subordinate court by way of
Form C to refer the matter to High Court for interpretation.
In either case the subordinate court must set out concisely the
issues and its opinion in either form B or C and the same shall
within 14 days refer the matter to the High Court. within 7
days of receipt the Registrar is supposed to place the matter
before the Chief Justice to constitute a bench. This will be a 3
bench court as that is the requirement.
Where the matter is of an interlocutory nature and one requires
interlocutory orders, the matter shall be placed before a Judge
directly.
CONSTITUTIONAL REFERENCES
Any applications alleging contravention of constitutional rights
under Sections 70-83 of the constitution are to be made
directly to the High Court by way of Form D and supported by
an affidavit. Listing out the contraventions that are occurring
that one would like to be stopped. Parties wishing to rely on
any documents must attach them.
A criminal application must be served on the AG and the AG
has a right of reply within 14 days of service, by way of replying
affidavit and any support documents. Where the AG does not
respond within 14 days of service, then the court may set the
matter down for hearing.
The judge may also give interim
orders. Where the questions of violations of fundamental rights
arise in the cause of proceedings, the presiding subordinate
court is of the opinion that the matter raised is not frivolous
then they may refer the matter to the High Court by way of
form E. the party may make an informal application to the
presiding court.

158

The applications usually challenge the basis on which the


constitutional applications are brought to court. one can make
an informal application before the court and then the court will
start the process of whether the application should be referred
to the High Court.
The presiding court must be satisfied that an application is not
frivolous before they send it to the High Court in which case
they shall frame the issues in contention to be determined by
the High Court by way of Form E.
One of the rules is that the only matters that the High Court will
consider are the ones that have been framed by the Magistrate
in Form E. the matter must be referred within 21 days to the
High Court. once it is sent to the High Court then the registrar
shall place the matter before a judge within 7 days. Any of the
parties making the application may apply for a stay of
proceedings before the subordinate court while the
constitutional reference is pending.
The rules make it clear that it is not mandatory that the
proceedings will be stayed and such the parties must make an
application for a stay and if there are no such orders, the
subordinate court can continue with the hearing while the
reference is being determined.
Constitutional references and applications are to be given
priority and to be dealt with expeditiously. The High Courts
decisions are appealable to the Court of Appeal within 14 days.
Read the decisions Kirwa case court is saying that where one
does not abide by the rules they cannot argue their case.

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