AUGUST, 2005

(a) Answer Question ONE (1) and ANY OTHER FOUR (4) questions.
(b) Marks may be lost for illegibility.
(c) Three Hours are allowed.

1. On the 7th August, 2005, while walking along Lang'ata South Road at about 2
p.m. Naomi and Muchiri were accosted by two gentlemen one of whom grabbed
Naomi's handbag while the other grabbed Muchiri's rucksack. They raised an
alarm and fellow students from the Kenya School of Law walking along the same
road gave chase, and managed to apprehend the two. Police from Hardy Police
Station were immediately alerted and the two men rearrested. At the station it
has emerged that one of the gentlemen Majitu was found wearing a wrist watch
which had gone missing a day ago from the Principal's office and which has been
identified as belonging to Matata, the Principal's Secretary.

Both Majitu and Kurutu are awaiting charges.

(a) Advise the police on the charge(s) to prefer
(b) Draft the charge(s)

 In the first count I would advice the police to charge Majitu and Kurutu jointly with the
offence of stealing from the person contrary to section 279(a) of the Penal Code in respect of
stealing the handbag and rucksack from Naomi and Muchiri respectively. I would charge
Majitu and Kurutu jointly with another because there was a common intention and the
offence occurred in the same transaction.

 In the second count I would advice the police to charge Majitu for handling stolen goods
contrary to section 322(2) of the Penal Code. This is because at the time of the arrest he was
found in actual possession of the wristwatch belonging to Matata, which had gone missing
from the principal’s office. I cannot charge him with stealing the wristwatch because from the
facts I am not certain that he was the one who stole it. I am only certain that he was found in
actual possession of the wristwatch with the intention of either retaining or disposing it. This
second count will be in the same charge sheet because it is part of a series of offences of a
similar character. (Charge them with stealing since the theft is recent and then charge them
with the alternative charge of handling stolen property).

(b) Draft the charge(s)


Name: Majitu and Kurutu

Count 1:
Statement of Offence

Stealing from the person, contrary to Section 279(a) of the Penal Code

Particulars of Offence

Majitu and Kurutu jointly, on the 7 th day of August 2005, along Langata South Road at about 2.00
p.m, in Nairobi District within the Nairobi Province stole a handbag and rucksack the properties of
Naomi and Muchiri respectively.

Naomi and Muchiri should not be in the same count as they each constitute a separate count. You
have created a duplex count.

Count 2:
Name: Majitu and Kurutu
Statement of Offence

Handling stolen goods contrary to section 322(2) of the Penal Code

Particulars of Offence

Majitu on the 7th August 2005, in Nairobi District within the Nairobi Province, otherwise than in the
course of stealing, dishonestly assisted in the retention of a wrist watch the property of Matata,
knowing or having reason to believe the same to have been stolen.

Doctrine of recent possession – indicates that where one is found in possession of anything recently
stolen. Where there is a recent date one would be able to see that it is recent.

In this case there is recent possession, the first assumption is that the person must have stolen, charge
them with stealing and then in the alternative, charge them with handling stolen property.

2. Discuss the sufficiency and availability in practice to an accused person the
constitutional provisions that underpin the right to a fair trial in Kenya:

(i) Right to the protection of the law

This means that a person shall not expect to be punished for an act or omission that did not constitute
a criminal offence at the time they committed it. Moreover, since it has been the constitutional
practice of Parliament to enact who shall be guilty of the offences which it creates, it would be at
variance with the constitution to interpret a statute, in the absence of express words, as giving a
minister or anyone else the power to choose, as a matter of substantive law, a single person to the
exclusion of others as the person to be charged with an offence 1.

or to the extent strictly necessary in the opinion of the Court in special circumstances where publicity would prejudice the interests of justice. the welfare of persons under the age of 18 years or the protection of the private lives of persons concerned in the proceedings. 5 Ibid paragraph 1675. b. 4 Halsbury’s Laws of England.Section 77 (4) of our Constitution safeguards this right. 4th Edition. c. unless the court to which the request is made may and does treat the request as the hearing of the appeal itself 8. The right to the protection of law also involves the right to a fair trial which is enforced by statutory rights of appeal .4 Section 77 (4) of the Kenyan Constitution contains a similar provision but differs where it adds that no penalty shall be imposed for a criminal offence that is severer in degree or description than the maximum penalty that might have been imposed for that offence at the time when it was committed. there may be occasions during the trial when this onus shifts to the accused as elaborated in Meme v R3. in a written law. 3 [2004] 1 EA 124. 7 Ibid paragraph 1675. but a convicted person5. Nor generally. Section 77 (10) of our Constitution guarantees this right and in addition section 77 (11) similarly provides the situations in where this right may be suspended. paragraph 838. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of moral. (ii) Right to a fair and public hearing In the determination of his civil rights and obligations or of any criminal charge against him. volume 8. The right to a fair and public hearing is subject to the following conditions: a. The most important aspect of the right to protection of the law is that a person is presumed innocent of any crime with which she is charged until it is proved that she is not. volume 8. 8 Ibid paragraph 1675. 4th Edition. The exception to this rule is the offence of contempt. In respect of proceedings upon a request for bail pending an appeal for release on probation or parole or for a new trial since in such cases the applicant is not an accused . The right to a fair and public hearing does not apply in extradition 6. In addition. everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. These situations are: a. where the interests of juveniles or the protection of the private life of the parties so require. and 2 Halsbury’s Laws of England. . section 77 (8) provides that no person shall be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed. The onus of proving the person’s guilt lies on the accusing party and this onus must be proved beyond a reasonable doubt. public or national security in a democratic society. 2 That said. paragraph 838. 6 Ibid paragraph 1675. in disciplinary proceedings 7. Nor does it apply to a request for leave to appeal against a conviction. Section 77 (11) (a) provides that where publicity would prejudice the interests of justice or in interlocutory proceedings or in the interests of public morality. d.

however. Each party must be given a full opportunity to put his case and to comment upon that of his opponent on a footing of equality9. 14 [2002] 2 EA 323. then.b. Section 77 (1) of the Kenyan Constitution mirrors this provision. 4th Edition. and d. volume 18. The court also held that submissions are part of a trial procedure. see Nurani v Nurani11]. b. 9 Ibid paragraph 1676. c. public safety or public order. (iv) Hearing within a reasonable time The term “reasonable time” requires elaboration. Application 1216/61. extracted here from Halsbury’s Laws of 15 England. unless the charge is withdrawn. paragraph 1677. (iii) Right to a Fair Hearing What amounts to a “fair hearing” is a question of fact in each case. In this case the appellant did not get a fair hearing and a trial could not be said to be complete unless both parties were granted an opportunity to address the court. Factors to be taken into account include: a. The reasonableness of the time is also measured according to the usual time taken under the administration of the system of criminal law in question. The relevant period is the date from which the accused is charged to the date of the final decision on appeal 15. extracted here from Halsbury’s Laws of England. the following factors are indicative of a fair hearing: a. Section 77 (11) (b) provides that this requirement will be suspended where the court is required to do so in the interests of defence. the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law. There is no necessity for an oral hearing in all cases 12. 10 Ibid paragraph 1676. It provides that if a person is charged with a criminal offence. paragraph 1676. 13 Application 1519/62. X v Germany 11 Collection HR 1. 4th Edition. volume 18. continuation in his presence is impracticable. The court held that Section 213 and section 310 of the Constitution use the phrase “address the court” which in ordinary parlance means talk or lecture to an audience. Free legal aid in criminal cases is necessary in order to ensure the equality of the parties 10 [not guaranteed in civil proceedings. except where he voluntarily consents to stay away or due to his conduct. Whether the responsibility for delay lies with the prosecution or with the courts. The court went on further to add that final submissions in a criminal trial must be made orally in open court in the presence of the accused. . Section 77 (2) of the Constitution of Kenya makes it mandatory for an accused to be present at the hearing of his case. The requirement of a fair hearing does not guarantee against a person being charged a second time with an offence of which he has already been convicted or acquitted 13. X v Austria 6 Yearbook HR 346. and in relation to the investigation and trial of a case in a manner consistent with the good administration of justice. 11 [1981] KLR 87. 12 Ibid paragraph 1676. The court in Akhuya v R14 defined what amounts to a fair hearing.

which entails the three stages of evidence in chief. 4th Edition. held that the trial of the applicant in the Magistrate’s Anti- Corruption Court is neither intended nor likely to deny him his constitutional and ordinary legal rights. it cannot be said that the hearing of the case would be within a reasonable time as required by section 77 (1) of the Constitution. paragraph 1677. 4th Edition. off course. (v) Independent and impartial tribunal An “independent and impartial tribunal” is a tribunal established by law19. on the question of whether the accused was likely to be denied the presumption of innocence secured by section 77 (2) (a) of the Constitution. 20 Application 1216/61. 4 Yearbook HR 490: ( Halsbury’s Laws of England. cross examination and re-examination. volume 18. and whether the charges against the accused were against the principles of natural justice. In Gachiengo v R22. article 6 paragraph 1. This right is safeguarded by section 77 (9) of our Constitution. Therefore. paragraph 1678). . 4th Edition. volume 18. As a general rule. and arriving at its decision on the basis of proper examination of evidence and the submissions of counsel. The applicant must not have caused the prolongation of his own detention 17. 22 [2000] 1 EA 67. Neumeister v Austria 7 Yearbook HR 224. In contrast. and thereafter also by neither of the successors in office. ( Halsbury’s Laws of England. 4th Edition. This requirement precludes the establishment of extraordinary courts by executive order but does not prohibit the conferment of specialized jurisdiction in the ordinary courts20. He would be able to call his own witnesses. paragraph 1678). The complexity of the issues involved. 23 [2004] 1 EA 124. the court in Meme v R23. extracted here from Halsbury’s Laws of 16 England. 17 Application 2465/65. X v Germany 24 Collection HR 50. volume 18.16 c. Application 1936/63. it was held unconstitutional and contrary to the principle of separation of powers for the Kenya Anti Corruption Authority to be headed by a High Court Judge. 18 [1986] KLR 1. Such leadership. X v Germany 11 Collection HR 1. Evidence would be adduced against him in the ordinary manner. the court held that such an apprehension was unfounded as the trial court would be a regular court in every respect. the court held that this application was unfounded as trials at the Anti-Corruption Court are regulated by all the rules of procedure and evidence. compromised the accused’s right to a fair trial before an impartial court under section 77 (1) of the Constitution. and guided by normal judicial practice as obtains in all the counts forming part of the judicial system. paragraph 1678). it not being claimed that any fresh evidence had become available thereafter. even though. On the question of whether the applicant was likely to be denied a fair trial by an independent and impartial court. where there is a possibility of an appeal. Nielsen v Denmark. 19 Convention for the protection of Human Rights and Fundamental Freedoms (Rome. An indication of what is not a reasonable time was declared in Githunguri v R18 where the court held that to charge the applicant four years after it was decided by the Attorney General not to prosecute. The delay was so inordinate as to make the non-action for four years inexcusable. who will be examined in the same way. guided by the principle of judicial independence. a court must give reasons for its decision21.b. ( Halsbury’s Laws of England. the evidential burden would keep shifting as is well recognized in this common law system. 21 Application 343/57. volume 18. 4th November 1950). he will have access to counsel and the legal burden of proof which has to be established beyond reasonable doubt would at all times rest on the prosecution. it was held.

(vi) Presumption of Innocence Article 6 (2) of the Convention provides that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. 24 volume 18. 25 [1981] KLR 459. volume 18. Right to know the accusation Article 6 (3) (a) of the Convention provides that everyone charged with a criminal offence has the right to be informed promptly. Section 77 (2) (d) of the Kenyan Constitution contains the same wording. and in detail. (vii) Special rights of the defendant “Special rights” refers to the rights which are in addition to the rights of a fair trial and the presumption of innocence. . where it was held that it is a well established qualification to the general principle of the presumption of innocence that the law may call upon an accused person to prove particular facts. They include: a. in a language which he understands. The Constitution recognizes that a person may be arrested or detained as a suspect. 3 Yearbook HR 412 at 462. paragraph 1680). The detail which is required is such as will enable the person charged to prepare his defence. Right to facilities for preparation of defence This requirement is provided in Article 6 (3) (b) of the Convention which provides that everyone charged with a criminal offence has the right to have adequate time and facilities for the preparation of his defence. X v Germany. This requirement applies only in criminal proceedings and not in civil actions24 and from the time of arrest and not only from the time at which a formal charge or indictment is presented. Section 77 (14) qualifies this right by providing that nothing contained in subsection (2) (d) shall be construed as entitling a person to legal representation at public expense. and this is expressly provided for in the Constitution under section 77 (2) (a). it was held that every person who is charged with a criminal offence is presumed to be innocent until he is proved or pleads guilty but that does not mean that such person cannot lawfully be detained in custody for trial if he is charged with a criminal offence. ( Halsbury’s Laws of England. Ofner v Austria. and must include the material facts and the legal nature of the charge 27. 38 Collection HR 115. b. paragraph 1679). It provides that an accused shall be informed as soon as is reasonably practicable. There are qualifications to the presumption of innocence. ( Halsbury’s Laws of England. 27 Application 524/59. in a language that he understands and in detail. 4th Edition. Section 77 (2) of the Kenyan Constitution contains the same provision. A good illustration is Okero v Republic25. The court held that denying an accused bond or bail pending his trial in no way means that he has been found to be guilty without being proved to be so. 4th Edition. They are an addition to these other rights and are not meant to prejudice or constrain them. 26 [1986] KLR 608. In Langat v R26. of the nature of the offence with which he is charged. There has been some controversy over whether the denial of bond amounts to a presumption of guilt. Section 77 (2) (c) of the Kenyan Constitution is similar is framed slightly differently. Application 4523/70. of the nature and cause of the accusation against him.

he appeared unrepresented and the hearing of the case continued for one day and was then adjourned to October 24. a legal representative in civil proceedings. The appellant appealed alleging that the magistrate erred in refusing to grant an adequate adjournment. In Adiedo v R28. Section 84 (5) (b) (i) and (ii) empower the High Court to determine whether a Kenyan citizen requires financial aid to enable her retain counsel for the purposes of protecting her rights provided for under sections 70-83 of the Constitution. In this case. If no prejudice resulted. The wife did not have the fundamental right to be represented by a legal representative of her own choice like a person charged with a criminal offence under section 77 (1 ) (d). If he has not sufficient means to pay for legal assistance he has the right to be given it free when the interests of justice so require. The court has stated the limits within which this right is to be exercised and made the clear distinction that this was not a fundamental right in civil proceedings. On October 15. He is free to choose. It was an error and a breach of section 77 of the Constitution of Kenya for the trial Magistrate to order the appellant to conduct his own defence without first asking him whether or not he was prepared or able to do so. 30 [1985] KLR 364. A case in which the court held that prejudice had resulted is Okello v R32. 31 [1985] KLR 373. it was held that the appellants’ right to representation under section 77 (d) of the Constitution of Kenya had been breached and on that ground none of the convictions on four counts could be supported. The court added further that whether the proceedings are of a civil or criminal nature court will not protect an imaginary deprivation of a fundamental right or.30 the High Court held that according to section 77 (2) of the Constitution an accused person has a right to be represented by an Advocate of his choice. stated that he had only been briefed the previous afternoon and applied for adjournment. The appellants were therefore entitled to an acquittal on all counts on this ground. In Ruhi v Republic31.c. 32 [1986] KLR 219 . then the trial court’s decision would stand. “allow it to be capriciously pushed to absurd lengths like importing a legal representative from Peking or Pakistan. 28 [1969] EA 586. On that day an advocate appeared for the appellant. Right to defend oneself and to legal aid Article 6 (3) (c) of the Convention provides that everyone charged with a criminal offence has the right to defend himself in person through legal assistance of his own choosing.” In Muchoki v R. In Nurani v Nurani29 it was held that a person is free to have. It was held that the right of the accused to be represented by the advocate of his choice had not been infringed. 29 [1981] KLR 87. the appellant appeared and pleaded not guilty to criminal charges on September 14 1968. Our section 77 (2) (e) provides that an accused shall be permitted to defend himself before the court in person or by a legal representative of his own choice. it was held that the question that the appellate court would consider was whether any prejudice had resulted to the appellant by the absence of his advocate at the opening of the defence case. It was held in this case that a court ought not and must not hurry to conclude a case without due regard to the rights of an accused or without any due consideration as to what the ends of justice demand. cross examined witnesses and gave evidence on oath. or not. The magistrate ordered a one and a half hour adjournment only This was refused and the appellant then conducted his case himself.

35 [1985] KLR 504. Other Constitutional Safeguards There are other provisions that guarantee a right to a fair trial and appeal in our Constitution. however. 33 [2004] 1 EA 68 34 [1984] KLR 605. the court held that the assumption of jurisdiction by the succeeding magistrate without informing the appellant of this right was wrong and the trial by the succeeding magistrate was a nullity. make his statutory statement or give his evidence. in Ratilal Shah v R37. but. d. it was held that the judgment of the magistrate did not comply with s 169 of the Criminal Procedure Code since there were no clear findings of fact. In addition. However. Right to an interpreter This right is guaranteed under Article 6 (3) (e) of the Convention which states that everyone charged with a criminal offence has the right to the free assistance of an interpreter if he cannot understand or speak the language used in court and is mirrored in section 77 (2) (f) of our Constitution. to the services of an interpreter who can translate the evidence to him and through whom he can put questions to the witnesses. the appellant’s convictions were not safe. The same holding was made in Kariuki v R35 where. 36 [1986] KLR 418. in addition. it was held that section 200 (3) of the Criminal Procedure Code entitles an accused person to demand that any witness be re-summoned and enjoins the trial magistrate to inform the accused person of that right. Section 77 (2) (f) of our Constitution is expressed in similar terms. The term “legal representative” as used in section 77 (2) (d) of the Constitution means an applicant’s advocate and not and cannot be extended to cover members of the applicant’s family as was held in Kaguma v R33. the Criminal Procedure Code (Cap 75) section 198 (1) also requires that evidence should be interpreted to an accused person in a language that he understands. In Njenga v R34. e. section 77 (12 ) provides that nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of subsection (2) (e) to the extent that the law in question imposes conditions that must be satisfied if witnesses called to testify on behalf of an accused person are to be paid their expenses out of public funds. 37 [1958] EA 3 . Failure to do so is an injustice. Rights in respect of witnesses Article 6 (3) (d) of the Convention provides that everyone charged with a criminal offence has the right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him. This right has been affirmed in Kiyato v R36 where the Court of Appeal held that it is a fundamental right under the Constitution of Kenya section 77 (2) (f) that an accused person is entitled without payment. They include: (i) Section 77 (3) which provides that a person accused of a criminal offence or a person authorized by him if he so requires and subject to payment of a requisite fee be given within a reasonable time after judgment a copy for the use of the accused person of any record of the proceedings made by or on behalf of the court.Since it was not possible to ascertain the extent of prejudice caused to the appellant by the failure of the court to inform him of his rights or at least to comply with the requirements of natural justice. and except on one point.

The value of assessors was explained by Lord Atkin %n Dhalarnini v King that: the duty of an assessor is not simply to reasons for the decision. save upon the order of a superior court in the course of appeal or review proceedings relating to the conviction or acquittal. issue such writs and give such direction as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions if sections 70-83 (inclusive). There is a right of Appeal to the Court of Appeal if the person aggrieved is not satisfied with the High Court decision as per section 84 (7). 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 were not misunderstood". For example the legislature has unconsciously or perhaps intentionally left the actual role of an assessor in criminal trials undefined. its propriety and place in the administration of criminal justice. but also because it is more acceptable to justice. (iv) Section 77 (7) provides that no person who is tried for a criminal offence shall be compelled to give evidence at the trial. The assessor system was retained after independence. Approaching the Court The proper forum in Kenya for seeking redress for violations of any of the provisions of section 77 of our Constitution is the High Court as provided for in section 84 (1) of the Constitution. the High Court may make order. The assessor should occupy a central role in criminal justice. (ii) Section 77 (5) provides that no person who shows that he has been tried by a competent court for a criminal offence and either convicted or acquitted shall again be tried for that offence or for any other criminal offence of which he could have been convicted at the trial of that offence. The scantiness of the statutory provisions has left a large area of uncertainty which has been filled but only partly by the rulings of the courts over the year. .38 The High Court shall issue such decision and compel the court from which the complaint arose to dispose of the case in accordance with the High Court’s decision. A. Section 84 (6) confers upon the Chief justice the power to make rules with respect to the practice and procedure of the High Court in relation to the jurisdiction and powers conferred on it by or under section 84. and Should the system be confined to the High Court or should it be extended to the subordinate Courts? B• EVOLUTION OF THE ASSESSOR SYSTEM IN KENYA The initial stages of the evolution of the assessor sstem can be traced to the 1902 East f~fiican Order- in-Council. 3. (iii) Section 77 (6) provides that no person shall be tried for a criminal offence if he shows that he has been pardoned for that offence. Critically examine the law and procedure relating to assessors in Kenya. An appellate court cannot look at reasons written by a magistrate after the conclusion of a trial but the procedure adopted by the magistrate did not necessarily invalidate the conviction and an appellate court is entitled to entertain an appeal on the merits if no injustice to the parties is thereby done and the record contains sufficient material for the purpose. This was also stated in orbiter in Githunguri v R. INTRODUCTION B. viz: (i) Is rhe role played by the assessors adequate? (ii) If noi do we abandon the whole system and replace it with the jury system% (iii) If we are to retain the assessors. Section 60 of the Constitution confers upon the High Court of Kenya unlimited jurisdiction in civil and criminal matters. various questions must be answered. As spelt out in section 84 (2) (b). The ambivalence pervading the assessor system has survived the rigours of independence. In appreciating the procedural law as it relates to assessors. This order provided' biter alia that: 38 [1986] KLR 1. not only because what he says conforms more to the wishes of the community. what role should they play in the criminal justice system and what reforms are necessary to facilitate this role.

. "The 1897 Native Courts Regulation section 8 provided for the trial of an accused with the aid of assessors. The ends of justice shall only be conveniently arrived at if the assesso are taken seriously."In all cases civil and criminal to which natives are parties every court. THE ASSESSOR SYSTEM AND THE JURY SYSTEM In the eyes of the law an assessor is the epitome ofthe reasonable man. C. the `man' in the street. The fact that the courts were to be guided by the native law meant that few competent Africans would be consulted to give their opinion on the matters in question. not through severe intellectual exercise or by protracted thought. It may be right or wrong but it inspires confidence in a way that a reasoned decision given by a judge cannot.y The wording of this order left room for the Africans to participate in the administration of justice. This brief history forms the foundation of the system of assessors as we know it today. However. The present legislation was adopted from its colonial counterpart. Michael Zander' quoted Lord Denning regarding the high esteem in which the jury is held in England: The Court of Appeal hardly ever interferes with verdict of a jury". PROCEDURAL ASPECTS OF THE ASSESSOR SYSTEM The importance of the assessor in the discharge of justice cannot be over_ emphasized. in 1907 following the inauguration of the Courts Ordinance. not work among the natives of Africa.. 'The definition above does not literally mean that a person who serves as an assessor should be an expert in the strict meaning of the word. appointment. The role of the assessors should be seen from the perspective that they (assessors) ought to have their roles defined in very clear and straight forward terms. has so many different virtues. Over the years the jury has played a significant role in mitigating the harshness of the law and the system by its own form of equity and mercy". It is for this reason that assessors are nornially chosen from the ordinary people. ia) shall be guided by the native law so long is it is applicable and is not repugnant to jastice and morality or inconsistent with any orders in council or ordinances or any regulaaon or rule made under anv order in council or ordinance. Kenya included. . By the provisions extended to other places/parts of British Colonial The assessor system was introduced as a substitute for the more vigorous jury system. Following the failure of the jury system in the colonies of British West Africa. This provision clearly indicates that discretionary.' On the other hand. but by mere adaptation of the matter in question. person usually an expert in the subject matter under consideration who sits with the judge and assists him from his special knowledge" ± This definition has been criticised but the critics stand corrected. The system had worked in British India and it was meticulously argued that there was no reason why the system could. This is in fact recognized . the system was Africa. is with British India'. to sit and hear a case was purely "Except where otherwise expressly provided by law any person committed for trial to the High Council shall be tried by a judge of the High Court sitting with not less than three assessors". can be followed in tracing this history earliest [European] legislation which authorized European courts of sessions to constitute two or more respectable assessors was Regulation VI of 1832.. All it means is that the person who serves as an assessor should stand in such position as to know. The English legal system has extolled the value of the jury system. The word `shall' according to the Interpretation of Statutes and General Provisions Act (Cap 2) means mandatory. in other countries where the assessor system is used. the following was enacted that. Zander has in fact put it more lucidly that: "The Jury system is strong because it. The functionaries presiding ]n natives to assist them as Bengal. Another line that. they have stubbornly stuck to the colonial dogma that the opinion of the assessor is not binding on the judge which in effect has shut the mass participation in the administration of criminal justice. 'The brief decision `Guilty or Not Guilty' is also a way of reducing anxiety about the result of cases. it was found necessary to introduce a system befitting the Africans (sic). (b) And shall decide all such cases according to substantial justice without undue regard to technicalities or procedure and without undue delay". which applied only to of Act VIII of 1832.. The Kenyan `independent' legislature has failed D. the High Court could invite cooperation of native assessors with a consultative voice only for the purpose of jury information where required respecting native law and custom. This is only a restatement of a renowned colonialist EW Park who said of assessors: .

([') Oflicers of the Prisons Department. the law provides that all persons between the ages of twenty-one and sixty years are eligible to serve as assessors". However. SELECTION OF ASSESSORS In Kenya. Unlike the jury system. (e) physicians. The lawyers' language is unfamiliar to them and the legal jargon leaves them more mesmerized than informed. Managing Director. he has the duty to Sun] up to them". Section 266 excludes the following persons from serving as assessors. The once cherished notion that assessors should come from the same place as the accused has long been dispensed with and for good reason. other persons exempted by the Attorney-General from liability to serve as assessors. this is watered down by section 322 of the Criminal Procedure Code which provides that the judge. This was in fact a restatement in the very words by the East African Court of Appeal in 1j v Abdaka Mali' and the court strongly reiterated their earlier statement that where a court sits without assessors where it should have done so. The above is seemingly a very positive move towards the direction of recognising the central role of the assessors. these sentiments betray the intentions of the learned judge. . and that it has been replaced by English law. (~) (h) members of the police force. officers of the armed forces. in giving his verdict. But the Chief justice has discretionary powers to make rules pertaining to areas within which a person may be summoned to serve as an assessor and he also has inherent. the Speaker and Members of the National Assembly. and persons appointed to act as official reporters to the National Assembly. persons exempted from personal appearance in court under the provisions of the Civil Procedure Act".In Rex v Yowasis it was held that a court sitting without assessors where they were required by law would be leaping the jurisdiction to try such cases. It is no stretch of imagination that since the official language of the Court is English. shall not be bound to conform to the opinion of the assessors. legal practitioners in active the Criminal Procedure Code whose section 262 states that "all trials before the High Court shall be with the aid of assessors". the word "shall" make it compulsory for the High Court to sit with the aid of the assessors. eligibility does not provide for any literacy or property qualifications (under the jury one should own property). Given that custornary law has been hacked to near nothing by section 3(2) of the judicature Act. the President and Members of the Cabinet. With the greatest of respect. an additional list of persons exempt from assessor service is as hereunder: Pennanent Secretaries. only a few will understand and likewise even fewer will qualify to serve as assessors. the trial is a nullity. persons actively discharging the duties of priests or ministers of their respective religions. a prominent colonial judge in Ghana has argued that the ends of justice are adequately catered for in that although a judge is not bound to accept the opinions of the assessors. Sir Henley Cousley. A High Court's decision sitting without assessors will be reduced to a nullity. the need to have the assessor coming fronl tile pennanent domicile of the accused can safely be abandoned. persons disabled by mental or bodily infirnvity. This in effect means that the judge can ignore the opinion of the assessors. Why then should one expect a rational assessment from a set of facts that have not been understood? It can therefore be asserted that the present system caters for `spectators' and not assessors as conternplated by its originators_ E.power to regulate the selection and summoning of assessors The fact that assessors should be common people is amply demonstrated by the exclusion of certain categories of persons from serving as assessors. surgeons and apothecaries in active practice. the Principal Probation Officer and Probation officers. officers of the Judicial Department and of the Office of the Attorney-General. Kenya Posts and Telecommunications R Officers engaged in the administration of justice including magistrates. the Clerk of the National Assembly. Kenya Railways Corporation Managing Director. Dentists in active practice. the Chief Inspector of Approved Schools and officers on the staff of approved schools. Even for those who can understand English they have an additional problem. Pursuant to section 266(k) above and vide Legal Notice number 345 of 1962.

If an injustice will be occasioned by an assessor sitting with the judge. But there should be penal provisions for those assessors who knowing the facts refuse to disclose so during or prior to the trial." Not all persons summoned to serve as assessors qualify to serve. Cha." The above shows that there is no limitation for the period in which a person may serve as an assessor." In the said case.judge. No such rules have been made so far. The risks inherent in such a provision need no emphasis. Admittedly. the accused was charged with murder of an African by confining him in a box with insufficient air until he could be handed over to the Police. It is noteworthy that if one who has been summoned to serve as an assessor fails to attend without reasonable cause. at least seven days before the day which rnay from time to time be fixed for the hearing or the holding of a session of the High Court. If he finds that the complaint is unfounded he may order the trial to proceed. Counsel for the . For that reason a judge's discretion in selection is absolutely unfettered. If the complaint is valid he should adjourn the hearing to pave way for another assessor to be summoned.14 'The judge is to select three out of those summoned to serve as assessors as required by section ?63 of the Criminal Procedure Code. The law requires that.~4) (h) Mayors.'!' The High Court may for a reasonable cause excuse an assessor from attendance at any particular session and may at the conclusion of the trial direct that an assessor who served at such trial shall not be surnmoned to serve again as an assessor for a period of twelve months or for such longer period as the court deems fit. a person ceases to be a common man. and although it must be exercised judiciously. There may be preliminary objections on the ground that an assessor knew the facts or that he is related to the accused or to the cornplainant. Consular offices de carriere and consular employees_ 'The sulaunoning of assessors is guided by sections 269-?. There is no express provision in the Criminal Procedure Code requiring that an accused be given a chance to object to any of the assessors from so serving but it was stated in Ndirangu v R" that objection to a particular assessor on good grounds is clearly a sound practice. 'The assessors are to be surnmoned in writing and their attendance required in the summons to be at a stated place and time. By adaptation and out of long stay in the court he becomes adequately showered with virtues similar to those of the . is possible that one may continue in service for as long as the court wishes. Where a session which requires assessors is to begin. such a ground is feasible and he should be dismissed. he is liable to a Fine "not exceeding four hundred shillings". town clerks to County councils. the R.73 of the Procedure Code. the CJ is given a discretion to make rules regulating the area within which a person may be summoned to serve as an assessor and also power to regulate the selection of assessors. This rule has been relegated to the periphery except in cases of provocation where the assessor should come from the same ethnic group as the accused. That was the ruling in the Republic v W Y Wilken. The appellant in this case was convicted of murder. Under section 265(2)j. It. the assessors must always be there. By continuing to serve as an assessor. the trial 6e chose to remain mute and took no part whatsoever in his trial. The court concerned itself with grounds on which the objection to an assessor is made.'" The trial judge should inquire into the allegation in a kind of trial within a trial. failure to take into account the race of the accused cannot be said to be an improper exercise of that discretion. Throughout. A yearly list is made which shows the names and addresses of assessors. do send a letter to a magistrate holding a subordinate court of first class having jurisdiction in the province or the district: in which such sessions are to be held requesting him to summon as many persons as possible to the judge who is to preside over the session needed for trials with the aid of assessors at the said session. On appeal he argued that the wife o _f one of the assessors at his trial was the sister of the deceased's wife and he complained that this had prejudiced him. the law on this subject is not adequate.2' The court has the discretion to discharge any assessor who has been objected to or any assessor who admits that he is related to the accused or knows the facts or is in any way connected to the accused.?'' In Kenya past experience shows that assessors chosen for trial were of the same ethnic group as the accused.egistrar of the High Court.imran of County Councils. More serious is the fact that he becomes more susceptible to corruption. The proper course to be taken when objection has been taken by an accused was discussed in the case of Andiazi v R.

Going by the authority of Andrea (Culinga v R'' the rule is that if a judge chooses to sum up to the assessors he must sum up both the facts and the law. the judge shall select three from the list of those summoned in accordance with sections 263 and ?97 of the Criminal Procedure Code.accused objected to the Panel of Assessors submitting that the practice of selecting assessors of the same race as the accused should now extend to the accused. During the trial one of the assessors was absent for one day during which only evidence of a fornlal nature was taken. to my n>ind. their reasonable travelling and out of pocket expenses as ordered by the Court will be paid. In Laurenti v R`. orally and individually. He submitted further that the judge shouW exercise his discretion in the accused person's favour as the court will always apply the test of what is fair to an accused person keeping in rnind the principles of natu~ justice. Having summoned assessors and none having been disqualified under any of the foregoing grounds. The statutory provision is that assessors are to give their opinion. 'This was in the case of Paulo Lwevola v R"' where it was said that the reasons for the opinion become even more relevant if the case goes on appeal. The court further observed "The opinion of the assessors can be of great value and assistance to a trial jadge but. adequately if at all. The court observed in dismissing the objection that although the practice had been to try Asians with the aid of three Asian Assessors and Africans with the aid of three African assessors: "all this has not conferred upon an accused of any race the right to be tried with the aid of assessors exclusively of his own race. the court.. courts have tried to fill in the gaps lett by the legislature and in the Gusambizi Wesonga case" the court observed that in the exercise of any functions of assessors. public officers. It would be wrong. Although section 322(1) requires a judge to record the opinion of each assessor. Certainly 1 think the judge's powers of selection should not be governed or fettered by considerations of race. a positive rnisdirection to the assessors will lead to a. the appellant was convicted of murder by the Supreme Court of Kenya and he appealed against his conviction..ill require each of the assessors to state his own opinion orally." Sometimes a discharge of one assessor during hearing on the ground of personal interest may render the trial a nullity. Since the credibility of the assessors' opinion depends on reasons behind it. defined by the statute. This was stated by the East African Court of Appeal in Baland Singh v R. AsSESSOR IN COURT The actual nature and extent of the functions of the assessor in criminal trials in Kenya is not. the Court of Appeal in Francis Muzungu v R3` held that the irregularity of a judge in failing to take the opinion of each assessor is not fatal unless it has occasioned a Eailtrre of justice. established a principle that it is necessary just. In practice such opinions should be given in open court. It is desirable that the judge should record his reasons for disagreeing with the unanimous opinion of the assessors particularly where they have given good grounds for their opinions. he then resumed attendance and was present for the remaining period and gave his opinions with the other assessors which was accepted. It was thus ordered that the panel comprise two Europeans and one Afi-ican as selected earlier. F. The session should start with three assessors but the absence of one does not necessarily invalidate the trial. conviction being quashed. For example in Assah Singh v R-' the appellant was tried for attempted arson and convicted by a judge sitting with three assessors. This was settled in Wafula v R. it has been required that the assessors should give reason or reasons for their opinion. only if they Fall understand the facts of the case before them in relation to the relevant law. [f the law is not explained and attention not drawn to the salient facts of the case. For assessors who are public officers they may be paid such reasonable out of pocket expenses as he may have incurred other than those payable from departmental vote in accordance with the regulations obtaining at the time. For those who are not. the value of the assessors' opinion is correspondingly reduced" Further. is always to apply the test of what is fair to an accused person keeping in mind and considering the principles of natural justice. I think that any such principle should be established. nor has it. and essential that a man should be so tried. At the end of the hearing and within the ambit of section 322 the judge nlay sunl up the evidence for the prosecution and for the defence and whereupon he . During the trial it came to the notice of the court that . However. The Remuneration of assessors is dealt with under the Criminal Procedure (Remuneration of Witnesses and Assessors) Rules enacted through Legal Notice number 474 of 1963.. The word "may" tnakes it discretionary on the judge to sum up the evidence yet it was in fact well stated in Washington slo Odindo v R2` that it is very sound practice which is almost invariably followed by the judges except in very simple cases to sum up for the assessors.

the court stated: . there is no objection to specific questions being put to the assessors either before or after a general opinion on the case has been obtained." in which it was held that the retirement of assessors is neither illegal nor irregular if after the retirement the judge obtains the individual opinion of each assessor and records it. It followed its earlier decision in R v Mungu Atosha. we think that there is nothing wrong in principle against the retirement of assessors for consultation. the assessors gave their opinions in chambers. This is a frequent practice throughout the Eastern African territories in at least thre of which it has statutory sanction". the Court of Appeal noted that in addition to any other answers which may be given. In the Abdalla case. though this point was not the basis of the appeal." In this case. The trial was a nullity because of proceeding with only two assessors. It was held that assessors must give their opinions in open court: much as a judge is required to `give` his judgment and deemed required so to do in open court so should assessors "give their opinions'. All it does require is that such opinion be given orally and individually " However. noted that the practice is frequent in East Africa.'' The opinion of the assessors should be taken on the general question of whether the accused is guilty or not guilty as charged. It was said that when the opinion of assessors is taken in the form of answers to specific questions they must also be asked to state their opinion on them as a whole and on the general issue as to the guilt or innocence of the accused.'. However.. according each opinion due weight and explaining why he adopts a given view Section 32.uliarly within their knowledge and must be given an opportunity to express vie.Where the assessors' opinion is divided. Section 322(4) allows for such of the assessors had taken part in a search instituted by police for articles which might become real evidence ~ the trial and was present when a spear shaft and `a panga' were found. the assessors may retire for the purpose of considering their opinions and there is nothing to prohibit them from consultation during such retirement. When the assessors give their opinion. A retrial was ordered. On appeal. G. they must be absent during "a trial within a trial".2(1) does not mandate assessors to give their opinions in open court. The case of Mehar Sirtgh Bansel`' is authority that while section 322 mandates the judge to take the opinion of the assessors generally on the case as a whale. The rationale behind this is that the assessors are can1111ao men and should only hear that which is strictly necessary and should avoid anv circumstance that may tend to create any bias. it is submitted that there is much to commend the practice of giving opinion in open court. This has been subjected to the scrutiny of the court in Abdalla Omar v R. questions to assessors should be confined to matters on issues pec. the judge decides the issue according to his own view. OPINION OF ASSESSORS After the summing up the judge shall then require each of the assessors to state his opinion orally and shall record each opinion. In the Privy Council decision of Mahlilzilili Dhalamini and others. It was held that the absence of an assessor or disqualification due to person interest or such other special circumstances annulled the trial. By virtue of section 261 of the Criminal Procedure Code which requires the practice of the High Court to be assimilated as nearly as possible to the Courts of Over arid Tenniner and General Gaol Delivery in England that should be the law in Kenya. [f the opinion of assessors is recorded in the form of specific answers to specific questions in accordance with the decision in Mehar Singh Bansel. it was stated that there is nothing wrong against the retirement of assessors for consultation."' And even after such opinion is taken." the opinion of the assessors was not taken on the general issue as to guilt or innocence of the accused." The judge is not bound to accept their opinions." The accused were tried and convicted for murder. In Lamabutu Mokalya v R. they must also be asked to state their opinion on the case as a whole and on the general issue as to guilt or innocence of the accused person.If they so wish. a judge has power to hear additional evidence before judgment. The asse ssot concerned was thereupon discharged and the trial proceeded with the other two assessors.vs on the case generally. each assessor should state specifically whether he considers the accused person to be guilty or not guilty on each count on which he is required to state his opinion. The court. The desirability of obtaining such opinion was expressed in Selemani slo Ussi v R. the one having been disqualified on account of personal interest. The assessors gave their opinion and did not state nor were they asked to state specifically whether they considered the accused guilty or not guilty as charged. in such cases the opinions of the assessors can be taken again.'H Although it is required that assessors should sit throughout the trial.`1 . It is not fatal if the assessors consult before giving their opinion. it is desirable that they state their reasons.

This is the type of superstructure that Kenya inherited and it is the same that is jealously sought to be maintained 'This system insists that the Africans' concepts are medieval and this has led to the content being slowly assimilated to the regrettable province of neocolonialism. EVALUATION AND RECOMMENDATIONS The role played by assessors ought to be a noble one of aiding the court. In this case. However. I.. A case in point in Uganda is Mutwalumbi Bukuli v Busoga'' where while commenting on the opinion of the assessors. This "give and take" philosophy renders the workings of the system not only a mere sham but a sickening illusion. two of the assessors were of the same ethnic group as the accused while the third was an American. It was important in the pre- independence period when custom was an integral part of Criminal law. 'The issue of expertise or otherwise does not arise. Are assessor's opinions (therefore) no less or more than expert opinion as has been argued? In English law assessors irraply expertise. Very often the judges disregard the opinion of the assessors and proceed on the basis that the opinion of the assessors is not binding on them. The prejudices expressed above are not confined to Kenya alone. was argued that opinion of assessors are not admissible `per se' as they are no nvore than expert witnesses. Piecemeal refornls may not give the desired effects and an overhaul of the system with various reforms should be worked out.After each assessor has stated his opinion. This > probably be fornru)ated to accommodate some of the following points.. we cannot treat our assessors as experts as u7 England and the preit. but both assessors are not worthy the n. For all it was worth. the status of assessors as experts has waned. For example analysis of Paul Ekai v R'.ume of assessors as they think in religion than in Justice". he is not bound to confornn to the opinions of the assessors. the learned judge without fear had this to say: the reason is not that they did not see the facts. and when the view on custom as proffered by assessors almost always carried the day. A CASE FOR REFORM The system is characterized by the "give and take" practice. For instance the requirement that all trials before the High Court shall be with the aid of assessors is very welcome."' 'This is all the more important where the assessors have given reasonable grounds for their opinions. -The contradiction underlying the assessor system is only a reflection of the inherent flaws in the entire system. This is not the case.depcndent Kenya. They are part of a given socio-economic superstructure where one class lives under the control and influence of another class. as pointed out earlier is a fallacious position because it was relevant in colonial days. 'The English Court of Appeal has power to appoint any persons with `special expert knowledge' to act as an assessor where it appears to the court that such special knowledge is required. This. assessors' opinion as to a matter of custom would justifiably occasion friction.reveals the shortcomings. we have seen cases decided by Judges who have viewed assessors as no more than experts on matters of customs and habits: thus their presence in a criminal trial. I deplore their opinions which are either a result of stupidity or pervasiveness" The above entitlements cannot be viewed as utterances of a biased judge. and for that reason. Not so now. for what expertise is for in a treason or murder trial? Theretore. 'Then. But in all cases where a trial judge comes to a contrary finding on the facts to the opinions unanimously shared by the assessor. 'The contrary view to this is furthered by R v Mutwiwas' which holds that since the opinion of an assessor on custom does not bind a judge. but in so doing. However. when the same statute provides that their opinions are not binding. Muli J found the accused guilty of murdering Joy Adamsorl. There is a gradual inclination that the concept of English type of justice is well entrenched here and that all the people are conversant with it. The presiding judge. the judge is required to give his judgment. there is no need for cross-examination or evidence in rebuttal. it is good practice for the judge to state in his judgment his reasons for disagreeing with them. their practiced role is devalued. one sees from the cases decided with their help that the system is far below the expected standards. They occur and recur in other African Countries." In the Kenyan and East African context. The purpose of trial with assessors has in itself-changed and their opinion on custom is not called now. he must be cross-examined otherwise an accused may be denied of the only opportunity to reassert his innocence. The procedure of selecting the assessors is also haphazard." In R v Ndarnbere'° the court held that since an assessor talking on a custom speaks as an expert.' He ASSESSORS AS EXPERTS 'That assessors' opinions are non-binding on the judge begs the question. . The Two Turkana Assessors found him not guilty while the American found him guilty The judge would have well quoted 'Thacker J in the Ogeda cases' where the learned judge in this rape case stated: "Each of the assessors returned an opinion of not guilty and [ suspect that the opinions are based not upon evidence they have heard but upon inter-tribal prejudices.

The accused person to be given a copy of the judgment or a translation. a newly employed magistrate has just finalized her first criminal trial. Shall contain the point or points for determination. Secondly. accused person is required to attend delivery of judgment unless attendance has been dispensed with during the trial or if there is no provision for imprisonment or where the accused person is being acquitted. in terms of writing judgement and in terms of analyzing and making conclusions . efficient. he no longer represents the reasonable man in the `omnibus'. together with the brief particulars . b.In many criminal cases it is required . which the accused is convicted and the punishment . Ilanda v R (1960) EA 780. but. Act NO. and political as differentiated fi-om the colonial experience when legislation was adopted. 5 of 2003 – given at a fee .to amend the Criminal Procedure Code so as to abolish the sytem of trial with the aid of assessors in the High Court in order to ensure speedy. 4. . Shall be dated and signed by the presiding officer in open court at the time of pronouncement . (3) That magistrates also sit with assessors because this is where most cases are handled. their probative value must be assessed by the court and the court must take into account and indicate why they are relying on the circumstancial evidence. (4) There should be a statutory requirement that the assessors should be men (and women!) of some formal learning so that they are not. Advise her on how to go about writing the judgment. Circumstancial evidence. Where the accused is alleged to have told lies does not necessarily prove the correctness of the facts that are then existing ie doesn’t mean what prosecution is saying is true . The first paragraph of the judgment should contain a brief statement of the offence. the issue of the accused person’s character may also arise. Corroboration . In the case of an acquittal. For the evidence to be relied on there must be no other explanation possible than that the accused is guilty . delivery of the judgment a. Section 168 . by the legal jargon 'T'he legislature should refonn the present legislation so that the role of assessors is clearly redefined taking into account the Kenyan situation both social. Leah. the Rules of evidence must be strictly followed. the next paragraph should contain a summary of the evidence of the prosecution – it should be in narrative or story form – so it should not be a summary of the evidence related by each and every witness instead their evidence should be embodied in one story with reference being made where there are differences or contradictions . cost effective and fair trial in accordance with the present day conditions in Kenya. In a nutshell the system should be overhauled to give it practical relevance and currency.(2) The time for which one can serve as an assessor should be stipulated and well limited so that the person is an actual assessor. In the case of conviction the judgment shall specify the offence and the section of the law creating it. Where one person has served as an assessor for many sessions. the next paragraph should be a summary of the defense case. the decision thereon and the reason for the decision . Evidence of the accused persons good character is admissible on his behalf. There is a bill in Parliament which proposes. At the end of trial the judicial officer shall proceed to write the judgment of the court . Unless the bad character is brought into issues only then can it be considered. is now a semi-professional or even a professional in the law and practice and well equipped with the `virtues inherent in the bench'. . confused and bewildered. Section 169 of the CPC 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 state the offence of which the accused is acquitted and direct that the accused be set at liberty . Thirdly. in open court either immediately or some time after close of trial and in the latter is where notice is given to all the parties of the reserved date. the prosecution or defense can make application for whole judgment to be read c. economic.

77 (10) of the Constitution requires that. the same at the time it is pronounced. It must follow that in all cases which the law requires to be heard in private namely. it must give notice of the date and time to the parties and their advocates. The Magistrate who reads the judgement should date and sign. Similarly. Like the trial. it was indicated that the accused persons were found guilty and convicted. S.168 (1) CPC requires the judgement to be pronounced or the substance thereof explained "in open Court".168 (3) however. Contents of the Judgement A. The judgement should be read in the presence of the accused. 346 CPC and that the trial was a nullity. orwhere the accused is acquitted. the judgement of the Court should be read in public. The judgement should not contain. The judgement should include the name of the accused and the charge he or she is facing. A judgment will never contain a sentence. Pronouncement A. B. The judgement ought to commence on a separate page from the rest of the proceedings and the pages should be numbered consecutively. the Magistrate who wrote thejudgement should sign but not date the judgement. If either the prosecution or the defence so requests the whole judgement should be read out in open Court D. In Muqema v R-[19@nF_A_676. If the Court opts for the latter. attempted rape. . Where one Magistrate writes a judgement and it is read by another. It should contain only the date of delivery being the date from which the right of appeal (if any) starts to run. R v Gikunja (1948) 23 1 KLR 43. S. The court of appeal disapproving of this practice held that a judgment should contain all the reasons which acted on a judges mind that led to him coming to the final verdict. C. It must be written by or under the direction of the Magistrate (ii) It must be written in the language of the Court (iii) It must contain the point or points for determination (iv) It must contain the decision (v) It must contain the reasons for the decision (vi) It must be dated and signed by the Magistrate in open Court athe e tmit is pronounced. 168(1) CPC). It was not clear whether the judgement was delivered in the presence of the accused persons and how they w e r e sentenced. Benchbook for Magistrates The Judgement I. no alterations to be made after delivery of judgment. provides that the absence of a party at the delivery of the judgement or failure to notify him or her of the date of delivery of judgement does not invalidate the judgement. Not until judgment is given that a sentence is then given. On appeal it was held that these omissions constituted grave irregularities that could not be cured under S. if any (S. . . save where his or her personal attendance has been dispensed within during the trial and the sentence is a fine. defilement of girls under fourteen years and incest.169 CPC requires the following of the judgement: (i). C. but it did not show whether they were sentenced. rape. S. except with the agreement of the parties. At the end of the judgement. B. Judgement is to be pronounced either immediately after the termination of the trial or at some subsequent time. the judgement was undated and unsigned. any mistakes can only be rectified by referring matter for review before the High Court . the magistrate added a few notes to the signed judgment with the explanation that he wished to consider points of law which he felt could not have been understood the accused. D. S. namely the date of writing and the date of delivery. Judgment is different from sentencing process . two dates. even the judgement should be read in private.

169(3) unless otherwise lawfully held. the decision thereon and the reasons for the decision. after outlining the evidence of the prosecution witnesses stated that he believed their evidence but gave no reason for believing it apart from saying-that -they had no reason for lying. the Court should not evaluate the case of the prosecution in isolation before considering whether or not the case for the defence rebuts or casts doubt on it (Okethi Okale & Others v R [1965) EA 555.judgement. As amended by the Criminal Law (Amendment) Act No 5 of 2003. The findings made by the Court must be based upon the evidence adduced and not upon speculation or theories unproved by evidence (Okethi Okale 8 Others v R [1965] EA 555). the judgement should specify the offence and the section of the law under which the accused is convicted and the punishment to which he is sentenced. F. Where the accused is convicted. In Nyanamba v R [1983] KLR 601 the trial Magistrate. the decision will be reversed or altered (5. 348A CPC). S 392 CPC also entities a person affected by a judgement or order passed by the Court. The Court further emphasised that it was a misdirection to deal separately with one part of the evidence and omit to relate It to the whole. to a copy of the judgement or If he so desires where practicable. Under S 170 CPC the accused is entitled without delay. Under S.169 (2) CPC and Nyanamba v R (1983] KLR 599). In Aluta v R [1985] KLR 543 the Court of Appeal emphasised 'ttrdthr'Crlmtmal'-ifases. on application . The Court also held that the evidence should have been considered as a whole. After considering and deciding on the prosecution evidence. M. Findings are to be made after considering the entire evidence on record. the Magistrate rejected the defence as false. it must be considered by the Magistrate. Once the appellate Court finds the irregularity to have occasioned a failure of justice.362 CPC). _ G. again without giving any reasons. 349 CPC the appeal must ordinarily be entered within 14 days of the date of the order or sentence appealed against O. The conviction was quashed and the sentence set aside by the Court of Appeal because the judgement did not comply with S 169(1) CPC which requires every judgement to contain the point or points for determination. the evidence against each accused must be considered separately and the case against each accused must be such as to prove the guilt of that particular accused beyond reasonable doubt. the accused is no longer entitled to the judgement free of charge. the Magistrate who reads the judgement should be a Magistrate of the same jurisdiction as the one who tried the offence and wrote the . The prosecution and the defence cases should not be looked at in isolation. Similarly. Where the law requires a particular offence to be tried by a Magistrate with a specified jurisdiction. cannot determine the appeal on merit. Hence for example. Geoffrey N vku v R 1982-8 81 Joseph Najramba Karura v R (1982-88)11165). the Court should analyse and weigh all the prosecution and defence evidence in its totality. the judgement should state the offence of which he or she is acquitted and should direct that the accused be set at liberty (S. The Attorney General has a right of appeal against acquittal of an accused person on a matter of law (S. It is improper to consider the evidence of the prosecution in isolation from that of the defence or vice versa. In arriving at its judgement. It held that sarcastic and denigratory remarks in relation to the defence case or defence witnesses (or in that case the prosecution and prosecution witnesses) have no place in a judgement and that a dispassionate approach and dear findings of fact are more indicative ofjudicial approach and do not lay the Magistrate open to a charge of possible bias. but as a whole. . In Munyole v R [1985] KLR 662 the Court of Appeal held that in a joint trial involving more than one accused person. (S. Upon convicting the accused person the Court must inform e accused person of his right of appeal. K.F. the appellate Court will order a re-Mal. In Diego v R (19851 KLR 621. However in Confiance v R (1960) EA 567 it was held that failure to set out the point or points for determination and the reasons for the decision are not alone sufficient grounds for allowing an appeal H. Failure to comply with the requirements of S. L. or cannot tell whether the trial Court properly directed itself on the evidence.169 CPC is an irregularity. I. However weak the defence of the accused appears.Where from the record the appellate Court . conviction can only be based on the weight of the actual evidence adduced and that it is dangerous and inadvisable for a trial Court to put forward a theory not canvassed in evidence or in the speeches of counsel 64 Bench Book for Magistrates . N. the High Court decried • unsavoury and derogatory language in the judgement. Where the accused is acquitted. The judgement should also contain a summary of the evidence adduced both by the prosecution and the defence. It entitles the appellate Court to examine the facts of the case with a view to determining whether the irregularity has occasioned a failure of justice.E. a capital robbery judgement ought to be read by a Magistrate with jurisdiction to try that offence. a translation thereof in his own language.

. In the ease °f evidence of children of tender age the court must be mindful that their evidence should be corroborated before a conviction can be had except where in a case involving a sexual offence. Lumumba C. the decision thereon and the reasons FW that dision Wi t h t hi s d ec uly done the preidiff iid . The upshot of this as viewed against the background of the provisions of section 168 of the Criminal Procedure Code relating to mode of delivery of judgments and section 1(. and is to be given the-. FORM AND CONTENT In most legal aspects.judgment. COPY without charge by virtue of section 179 of the Criminal Procedure Code.sng oicers requre to sign itin _ ~." A judgment is defective if there are no findings on any discrepancies in the evidence. F. once judgs'lent has been entered in compliance with the provisions of the Criminal procedure Code. for reason to be recorded in the proceedings.. This implies that if on appeal the conviction on one or more counts is quashed. and the section. but a trial is not a nullity simply because there is a defect in the judgment and sentence separately on each count on which the defendant has been convicted. the court is satisfied that the child is telling the truth. In the case of Rutilal Shah v Republic. and not on the whole indictment. to a copy of the judgement. If the judgment is one of conviction. A tr1court must also direct itself on the nature of the evidence adduced.thll specify the offence of which. the only evidence is that if a child of tender years who u the alleged victim of the ot~ence (the case shall receive the accused person if. (See section 124 of the Evicence Act) amendment. order. CONCLUSION The writing of a. The accused person is allowed to ask for a copy of the judgment and may futthtr'ash for a translation in his own language.„ court at the time of pronouncing it. Th'C'Poittt or points for deterrnination must cover the essential ingredients of the offence charged. if practicable.and payment. of the Penal Code or other law under which the accused is sentenced. it. Thus section 169 of the Criminal Procedure Code provides inter alia that a judgment must be written by or under the direction of the presiding officer of the court. ORDERS ON JUDGMENT E. deposition or other part of the record." Section 169(3) provides for acquittal cases in which case the judgment shig ktte the offence of which the accused is acquitted and shall direct that he be set at f mierty. the form in which the particular issue is presented is given l lot of emphasis." where a trial magistrate at the time of delivering the judgment stated that reasons would be given later the Supreme Court refused to look at the reasons written by the presiding magistrate after the trial. Such a copy shall be given to him without undue delay and free of charge. the judgment on good conviction on the other counts may stand. unless for special reasons the Court decides to give them free of charge. Failure to comply with the rules for w-riting a judgment may be fatal to the . Failure to comply with these requirements is an irregularity which Will ePtitle and oblige the Court of Appeal to examine the facts of the case with a view to determining whether there has been a failure at justice within the meaning of S~Gd°n 382 of the Criminal Procedure Code. Findings of fact should be based on the credibility of witnesses especially in cases where the witnesses are accomplices.9 relating to contents ofjudgment underscore the significance of this stage of trial. It must not only be written in the language of court but it m~ ~o include the requirements stated therein. section 170 entitles the accused person upon application to a copy of the judgment or when he so desires a translation in his own language.judgrnent is of fundarnental significance.. These are that the judgment must cpptain the point or points for detennination.

.. The name and address of the accused person will be given.. The law which governs the procedure before these courts is contained in the Criminal Procedure Code (Cap. "If any person arrested or charged .. he shall be released either unconditionally or upon reasonable conditions. In Ngui v. and aubject to section 72(S) of the Constitution. p. This can be effected in two ways. The magistrate. Republic (Criminal Application No. The crimes tried by these courts are mainly found in the Penal Code (Cap.. then a magistrate can issue a warrant for his arrest... Hassan. Where the accused has been convicted and sentenced to a term of imprison- ..... section 123(3) of the Criminal Procedure Code (Cap.. 63). If the accused person disobeys a summons.. the next step is to bring the accused person before the court. is not tried within a reasonable time . therefore. void. It is proposed to deal first with the procedured followed in the trial of a felony in the Resident Magistrate's Court. although many other offences are contained in other public Acts. will be served on the accused by a police officer. Now that the charge has been framed. If bail is refused. the High Court said that foJlowing the practice in Kenya. CRIMINAL PROCEEDINGS Criminal proceedings may take place either in the District Magis-`trate's Court. will then give his decision. unless the grounds of arrest are obvious to the accused. When a person is in police custody. explain to him in a precise manner the process that he will undergo up to sentencing.. Sometimes the police may object to bail. Much depends on the seriousness of the charge. he can apply for bail to every puisne judge of the High Court.. and commands him to arrest the person named in the warrant and bring him before the court. submits to the magistrate a written statement... the Resident Magistrate's Court (including the Principal Magistrate's Court and the Chief Magistrate's Court) or the High Court. The right to bail is found in the Constitution of Kenya. or a private person. Section 123(3) of the Criminal Procedure Code was subsequently amended by the Statute Law (Miscellaneous 354 The Law of Kenya Procedure 355 Amendments) Act (No. your client has just been informed that he will be facing a criminal charge and he wishes to plead not guilty. be released on bail. A police officer can submit an information in the form of a for. known as a "complaint" or an "information. the accused can appeal to a High Court judge. at the discretion of the court. The warrant is issued to a senior police officer. he may have to execute a bond with sufficient sureties for his attendance in court at the time of the trial. whether the accused is likely to abscond or interfere with prosecution witnesses or even commit further offences whilst on bail. as a general rule bail should not be granted ln cases carrying the death penalty.. a statement of the offence(s) and particulars of the offence(s).. section 72(5) which provides that. 19 of 1985) so that the High Court may grant bail in any case whether or not an accused person has been committed for trial. 75) and the Magistrates' Courts Act (Cap. The other method of bringing an accused person before the court is for the magistrate to issue a warrant of arrest. mal charge. the High Court.... 59 of 1985). he and his sureties may be required to forfeit to the court the sums specified in the bond.. robbery with violence or attempted robbery with violence. If he does not attend court on the due date. magistrate can issue an order in the form of a summons requiring the person named in the summons to appear before the court at a fixed time and date and answer to the charge. pending the trial of his case. Yet. which will contain the statement of offence(s) and particulars of the offence(s). he can." which gives particulars of the offence which the person named therein is said to have committed..10). treason.. The only requirement here is that a police officer arresting a person without a warrant should inform the person of the grounds of his arrest.5. The warrant contains particulars of the offence with which the accused is charged." Yet. it is an offence to resist lawful arrest. Police officers have many statutory and common law powers to arrest a person without a warrant.. 75) was amended in 1984 so as to bar the High Court from granting bail to a person accused of murder. after hearing the prosecution's objections and any counter objections. The summons.... If the accused is granted bail.. held that the amendment to section 123(3) of the Criminal Procedure Code was inconsistent with section 72(S) of the Constitution and was. 2 of 1987)) which made all offences punishable by death nonbailable. The matter was resolved by an amendment to section 72(5) of the Constitution (Constitution of Kenya (Amendment) Act (No.. in a constitutional reference under section 84(1) of the Constitution. a police officer can use such force as is reasonably necessary to effect the arrest. In arresting a person. A police officer. usually in the district where the accused resides.. in fact..

so that there is no justification for depriving the applicant of his liberty (Somo v. The prosecution then calls its witnesses who are examined-in-chief.A. the magistrate will again explain the substance of the charge to the accused and the right of the accused to give sworn evidence (which will expose him to cross- examination by the prosecution) or to make an unsworn statement' from the dock. for bail pending appeal to be granted. The Republic (1973) E. the court will dismiss the case and acquit the accused. The magistrate first of all identifies the accused as the person named in the charge sheet. the more likely it is that the accused will be remanded in custody. In Adan v. If the accused pleads not guilty. (b) the accused's own words should be recorded and if they are an admission. after which the magistrate will sentence the accused. If bail is refused. The accused makes his appearance. The conviction and sentence were set aside and the High Court ordered a new trial. Where a submission of "no case" is rejected. (See also Lusiti v. submit that the accused has no case to answer and this will require a ruling by the magistrate. The Republic (1977) Kenya LR 143).A. He pleaded Nakubali which was recorded as "I admit the offence". 476). if the court is satisfied that no case 356 The Law of Kenya Procedure 357 has been made out against the accused. Counsel for the defence can. The prosecution can be undertaken by a State Counsel. there must be an overwhelming possibility of success of the appeal. several remands may take place at frequent intervals before the prosecution are ready to proceed with a case. the court should say no more than that. the accused is remanded in custody. or by a police officer who is appointed and gazetted to conduct such prosecutions. which will be explained to him if he is not represented by an advocate. or the accused. where the submission is upheld. In fact. If the court is satisfied that the accused has a case to answer. At the close of the prosecution's case and after hearing submissions by the prosecution and defence. reasons should be given for that is an end to the case (Festo Wandera Mukando v. Conversely. his advocate. cross- examined and possibly re-examined. the appellant was charged with defilement . 445. employed in ihe Office of the Attorney-General. Whilst in prison awaiting trial. The magistrate will then ask the prosecution if the accused has any previous convictions. the Court of Appeal of East Africa considered the procedure which should be followed on a plea of guilty.ment. the trial of the case will begin. can make a plea in mitigation of sentence. The accused is then asked whether he pleads guilty or not guilty. The more serious and complicated a charge. Prosecuting counsel should make an opening address to the court in which he outlines the facts of the case. any exhibits are identified and referred to in evidence. if not represented. although the services of an interpreter can be called upon if necessary. The accused has his constitutional right to employ (instruct) an advocate to defend him. If the accused pleads guilty. The accused can call witnesses in his own defence and his advocate can compel the attendance of such witnesses by means of a witness summons. The procedure now is very similar to that conducted in a civil case. The proceedings will be conducted in either English or Swahili. The Republic (1980) Kenya LR 103). the accused will be accommodated in a special part of the prison reserved for such persons. The scene now moves to the Resident Magistrate's Court. a conviction should be recorded and a statement of facts relevant to sentence together with the accused's reply should be recorded. The Republic (1976) Kenya LR 132. (d) if the accused does not agree to the facts or raises any question of his guilt his reply must be recorded and change of plea entered. on which he cannot . a plea of guilty should be recorded. There was also doubt as to the exact age of the victim. (See also Opondo v. Republic (1972) E. only referring to those facts which he intends to prove by evidence. The magistrate then reads out the charge2 to the accused. (e) if there is no change of plea. In Greyson Kimbio v. (c) the prosecution should then immediately state the facts and the accused should be given an opportunity to dispute or explain the facts or to add any relevant facts. of course. Stolen goods must be identified by their owner. It laid down the following guidelines: (a) the charge and all the essential ingredients of the offence should be explained to the accused in his language or in a language he understands. but this was not unequivoval plea of guilty. Republic (1978) Kenya LR 25).

The magistrate certifies that the statement or evidence of the accused person was made in his presence and hearing and that the record is correct. you may say something now. sufficient proof). defence counsel should make an opening address to the court in which he outlines the defence. You will be tried later in another court before a judge and assessors. then after the close of the prosecution case. If the presiding magistrate considered that the prosecution had made out a prima facie case (that is. the committing court sends the committal documents and the information containing the charge to the Registrar of the High Court. He will proceed to call his witnesses and they will be examined in the same manner as the prosecution witnesses. Conversely. or the right to remain silent. The statement or evidence of the accused person is recorded in full and shown or read over to him. If. the magistrate records the names and addresses of the witnesses whom the accused wishes to have summoned at the trial. alter or explain anything so recorded. or because he requires a medical report. If the accused does not adduce evidence in his defence. If at the hearing. However. After the close of the case for the defence. The more serious criminal cases like murder. If you say something on oath now. Prior to the 10th December. if the magistrate considers that there are sufficient grounds for committing the accused person for trial before the High Court. or the accused (if unrepresented) will be called upon to address the court. Sentence of the court can always be adjourned. the magistrate discharges him. The magistrate then invites the accused person to sign the record. Committal documents are prepared by the prosecution. You will then be allowed to make a statement or give evidence on oath and call your wtinesses. The magistrate. The exact wording of the warning is set out in the Criminal Procedure Code (section 235). Where an accused person has been committed for trial. there would be a preliminary inquiry in a subordinate court in which prosecution witnesses would record their evidence in a document known as a deposition. He will also be asked if he has any witnesses to call in his defence. If you wish. . he would commit the accused to stand trial in the High Court. then summarises the whole case and finally arrives at his decision. These documents contain (i) the information containing the charge. Not less than fourteen days before the date fixed for the committal proceedings. if the accused is going to call witnesses in his defence. you may be questioned by the prosecution. The gist of it is that the accused is required to give advance warning of any alibi defence. who during the course of the trial has been recording the evidence in longhand. otherwise he may be prevented from raising this defence at his trial. The final address will be made by counsel for the prosecution who will summarise his case and deal with any weak points in the defence. After the committal for trial. a note of the refusal is made and the record may be used as if the accused 358 The Law of Kenya Procedure 359 person had signed it. the prosecution gives one set of these documents to the accused or his advocate and three sets to the court. The procedure for trying a criminal offence in the High Court is very similar to that in the Resident Magistrate's Court. on the evidence he finds the accused not guilty. The magistrate then addresses the accused in the following words: "This is not your trial. but if he refuses to sign. 1982. or makes an unsworn statement. either to enable the magistrate to consider the most appropriate sentence. The advance warning gives the police time to check out the alibi. Oral evidence cannot be given at committal proceedings and no person can address the court without leave. counsel for the defence will make a closing address to the court in which he will summarise his case and no doubt deal with any weak points in the prosecution case. which may well be identical with the information.13 of 1982) and replaced by a new system of committal proceedings which are designed to streamline the previous system. If the accused is found guilty. either on oath or not on oath. An alibi is the plea that when an alleged act took place one was elsewhere. The magistrate will then give the accused an alibi warning. (iii) a list of exhibits. where witnesses will give evidence and you will be allowed to question them. treason and misprison of treason are tried in the High Court. (ii) a list of prosecution witnesses and their statements. it should not make you confess to an offence now. he will be sentenced. Then. The magistrate reads the committal documents before the commencement of the committal proceedings. These preliminary inquiries were abolished by the Criminal Procedure (Amendment) Act (No. the prosection will sum up the case against the accused. and he may add to. the magistrate considers that there are insufficient grounds for committing the accused for cross-examined. the accused will be discharged. defence counsel. Anything you may say will be written down and may be used at your trial". he informs the accused and frames the charge. Even if the accused gives sworn evidence. before a case was heard in the High Court. If a promise or threat was made to you earlier. he still retains the right to make the final address to the court. (iv) an alibi warning.

This is directed at the court and commands the discontinuance of criminal proceedings. avarice. attitude etc these are issues which would ordinarily arise during mitigation.the court should consider whether they are similar as well as their relevance in any case. sedition (Penal Code (Cap. 21 of 1980). The judge will. they should the court a good indication of the offenders previous interaction with the criminal justice system. Accused – circumstances. e. Unemployment. broken home. the proper course to follow is to start the trial afresh with the aid of three new assessors (Njuguna Mbeu v. 54). section 12). not lawyers. Refer to Feb 2006 paper 7. lust opportunity. It should also be observed that certain prosecutions can only be brought with the consent of the Attorney-General. anger.In criminal cases in the High Court. then the lack of consent or even the delay in obtaining the consent can be the ground for a successful appeal should the accused be convicted (Kinyua v. opportunity provocation. drunkenness. section 195). poverty. ask the assessors for their opinion on the facts and for a general verdict. incest (Penal Code. If such a prosecution proceeds without the consent of the Attorney-General.63). Critically analyze the adequacy of imprisonment as a sentence. psychological problems etc. This should be supported by a clear sentencing policy that is known to judicial offices. 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. The result is that the accused is immediately discharged and released from custody. prosecutions for corruption (Prevention of Corruption Act (Cap. at the conclusion of the trial. Most prosecutions are instigated by the State and although a private individual can institute a prosecution (subject to the qualifications noted in Kahara's case (supra)). Previous conviction – this will be raised by prosecution. The court will also consider uniformity in approach to sentencing. 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. section 77).. What factors and/or principles govern sentencing policies in Kenya? The cause of crime – there are various socio economic factors that may lead to crime i. 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. 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. . but this does not prevent any further criminal proceedings arising from the same facts. Republic (1972) E. but the judge is not bound to accept the assessors' opinion 4 It might be added that if an assossor is discharged by order of the court. Under section 82 of the Criminal Procedure Code.A. section 58). subversive activities (Penal Code. a judge will sit with three assessors. section 6). and they are selected at random from members of the public between the ages of twentyone and sixty. libel of a dead person (Penal Code.g. all prosecutions in Kenya are under the control of the Attorney-General 5. The assessors are laymen. character. 6. election offences (Election Offences Act (Cap. the Attorney-General is empowered to enter a writ of nolle prosequl. In most cases the courts tend to be more lenient to first offenders.66).e. greed.65). section 169). Republic (Criminal Appeal No.g. habit insanity ignorance.

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. All the proceedings must then be recorded The court records must reflect the Coram which include the judicial officer by name. or if it finds that it is false. assuming that the court accused understands the proceedings a plea of not guilty should be entered. Explain the various ways in which an accused can respond to a charge. (3) If the court holds that the facts alleged by the accused do not prove the plea.  On appearance before court.meaning that the charge is open to some legal objection. 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. e. 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) . 8. refuse to plead.e. And if a charge or indictment contains several counts the accused must be asked to plead to them separately. Say nothing i. 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. Demurrer .. In the event that an accused does not change plea. 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 . Plea of guilty – this kind of plea must be unequivocal and hence the elaborate requirements laid down in the case law where the plea is not properly taken and recorded the accused may be set free despite the plea of guilty. the accused shall be required to plead to the information. Summary proceeding of what is required in the course of a plea. the Prosecutor by name. May plead lack of jurisdiction by the court. 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. the plea of each should be recorded separately.Such a policy will generally enhance the credibility of courts. the court shall try whether the plea is true or not. (2) If either of those pleas are pleaded and denied to be true. or (b) that he has obtained the President’s pardon for his offence. 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.g. Section 278 of the CPC provides that where one pleads not guilty they are deemed to have put themselves up for trial. Adan v Republic – Plea should as far as possible be recorded in the language of the accused. facts may be true but do not amount to an offence May plead lack of jurisdiction. 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.

the court shall order for a medical examination. The case shall be reviewed from time to time as provided under Section 164. 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. He may be ordered to appear before the court or other officer appointed by the court. 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 . Conditional discharge does not bar similar charges. If he is not capable of raising bail he shall be remanded in custody or in a mental hospital. they can be remanded in custody if there are facilities that can take care of their mental health. If the medical examination confirms unsoundness of mind the proceedings shall be postponed.. 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. discharges such as those under Section 87.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.