Criminal Procedure Lectures

The Criminal Procedure is the process through which penal and criminal law are applied. That is the process of the
application of penal laws. It is procedural law and not substantive law.

The essentials of criminal proceedings are:

1. To bring the accused within the power of the tribunal.

2. Preliminary investigations to ensure the crime is one, which should be prosecuted.
3. Notice to the accused of the offence charged upon arrest accused has to be told why he is being arrested.
Notice to give charge sheet with information against hi, for him to respond and to defend himself.
4. Opportunity to prepare for trial, procure witness.
5. A speedy trial. A trial should be conducted as fast as possible because during the course of the trial the
accused may be kept in prison as they have been refused bail.
6. Fair trial before an impartial tribunal. Accused is given an opportunity to say something in his defense.
Through counsel of his own choice.
7. A right to the review of the case by a suitable appellate tribunal. Right to review if the accused is not happy.

Under our jurisdiction there are 2 ways of review:

1. Review by way of appeal.
2. Review by way of revision.

Criminal proceedings commenced in the name of the state of Kenya is tiled R v Accused. In other jurisdiction, such
cases are titled People v Accused or State v Accused.

In private prosecution it is always the Republic because you institute in the name of the state. The state is treated in all
criminal cases as the complainant and it is not necessarily the victim.

In law every crime is committed against the state because a crime is defined as a wrong against the society or the
state. The state is responsible for the society. The state takes the responsibility to seek redress of the complainant or
the victim. The state protects and defends others. The real victim is also the complainant particularly in crimes involving
private property and against the person. In all cases the real victim as a complaisant appears as a witness for the
prosecution, and therefore the complainant is not a party to the suit. The parties are the republic and the accused. The
complainant has no right to appeal only the state can appeal because the complainant is a witness.

STRUCTURE AND JURISDICTION OF THE CRIMINAL COURTS IN KENYA

1. In the administration of criminal law the function of the court is to defend the society from the acts of the
criminal.
2. The courts also uphold the fundamental rights of the accused person. The courts are alive to the inalienable
rights of the accused person.
3. Criminal procedure is intended to assist the court in the trial of suspects.
4. The criminal procedure helps the court determine the guilt of the accused.

Most trials in Kenya are conducted by the subordinate courts.

The High Court does try criminal cases but its criminal jurisdiction is fairly limited.

The court martial has limited jurisdiction. Some courts have appellate jurisdictions. Come courts have appellate
jurisdictions ands the appellate courts are:
i) The Court of Appeal.
ii) The High Court.
iii) The Senior Resident Magistrate Courts.

MAGISTRATE COURT

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Established by the Kenya Constitution, the court works under Chapter 10, the Magistrates Court Act ands the
Judicature Cap 8. The Magistrate courts are classified in 2 ways:

1) Magistrate courts;
a. District Magistrate courts:
i. District Magistrate Court 1
ii. District Magistrate Court 2
iii. District Court magistrate 3
b. Resident Magistrate court:
i. Chief Magistrate
i. Senior Principal Magistrate.
2) Sub\ordinate courts:
a. Class 1:
i. Resident Magistrate’s Court;
ii. Principal Magistrate Court
iii. Chief Magistrate
iv. District Magistrate 1
v. Senior Resident Magistrate
vi. Senior Principal Magistrate
b. Class 2
i. District Magistrate 2
c. Class 3
i. District Magistrate 3

Therefore the powers are given according to the classes to the courts in them.

DISTRICT MAGISTRATES COURT

Established under section 8 of the Magistrate Courts Act and may be of class 1, 2 and 3.

Its jurisdiction is limited to gazetted geographical districts and by their sentencing power. Jurisdictions of the District
Magistrate are set out in section 7(2) and (3) of the Criminal Procedure Code.

The District Magistrate Court 1 has the same power as the Resident Magistrates Court.

Powers:

1. It can impose imprisonment not exceeding 7 years.

2. It can impose a fine not exceeding K.Shs. 20,000.
3. It can impose corporal punishment not exceeding 24 strokes of the cane.

What happens when a District Magistrate Court 1 determines that the accused should be given a heavier punishment
than that which they can give? They refer to a court with the appropriate jurisdiction. The Senior Resident Magistrate
Court, the Principal Magistrate Court the Chief Magistrate are appropriate.

A District Magistrate can try a person charged with fairly serious criminal offences e.g. rape, assault, causing gracious
bodily harm.

District Magistrate Court 2

A second class of courts has powers to impose such punishment as:

1. Imprisonment not exceeding 2 years;
2. Fine not exceeding K.Shs. 10,000.
3. Corporal Punishment of not more than 10 strokes.

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Cases triable under the DM2 are theft, burglary, housebreaking, and offences created under various statutes e.g. the
Traffic Act.

District Magistrate Court 3

Power to impose:

1. Imprisonment not exceeding 12 months.

2. Fine not exceeding K.Shs. 5,000.
3. Corpora punishment not exceeding 6 strokes of the cane.

It deal with minor offences e.g. affrays, fighting in public; for this offence there has to be more than one person
charged; drunk and disorderliness, loitering with intent to prostitute.

It attracts light fines and discharges.

Tries offences under statutes like offences under the Tradition al Liquor Act, the Changaa Prohibition Act; the Traffic
Act.

NB: DM courts are courts of first instance, criminal trials originate here. These courts have no revision or appellate
jurisdiction; they cannot review matters or appeals.

Appeals arising from the DMs are herd at the RMs and the High Court depending on the classification of the DMs
court.

Appeals from the DM 3 go to the RM while appeals from the DM 1 and 2 go to the High Court.

With appeals from the DM3 there is a further appeal to the High Court, which is the final court of appeal. Appeals from
the DM 1 and 2 have a further appeal to the court of appeal.

The DM courts are being phased out particularly DM 1 and 3.

These two classes of courts are manned by law magistrates who are not qualified lawyers.

During colonization we began with the RM courts. The DM were created by the independence government to
accommodate the Africa district courts manned by people who are not lawyers.

Most magistrates in Kenya are now lawyers so few courts should be headed by lay magistrates.

DM where graduate lawyers join as magistrate is the entry point. They are promoted to Resident Magistrate and not to
DM1.

RESIDENT MAGISTRATES COURT

Established under section 3 of the Magistrate Courts Act. They enjoy wide jurisdiction. The RMs courts are presided
over by the Chief Magistrate, the Senior Principal Magistrate, the Principal Magistrate or the Senior resident Magistrate
or Resident Magistrate.

The Criminal Jurisdiction of the RM court covers most of the crimes and is set out in section 7 of the Criminal
Procedure Code.

Section 7(1) paragraph (a) vest the CM, the SPM, PM and SM courts with power to pass any sentence authorized by
law for the offence terrible by that court. These courts have jurisdiction to try all serious offences except treason and
murder, which are only triable in the High Court.

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Offences permitted are manslaughter, robbery with violence, arson, rape, etc.

They try offences carrying life imprisonment and death.

Section 7(1)(b) and section 7(2) vest s the RM court (distinct from others: SRM, SPM, PM, CM) with powers to pass
any sentence authorized by law under section 2789 of the penal code i.e. stealing stock, section 308 of the Penal code
ma\d section 322 of the penal code.

The offences created under this section carry a maximum of 14 years imprisonment, so the jurisdiction of the RM of 7
years can be exceeded for these offences.

In respect of other offences the jurisdiction the RM is limited to 7 years imprisonment or a fine not exceeding K.Shs.
20,000 or corporal punishment not exceeding 24 strokes of the cane.

Section 8 of the CPC allows the Judicial Service Commission to extend the jurisdiction of the RM so that the RM can
try cases of this class - SRM or the CJ can post an appropriate magistrate for that particular case.

RMs courts (the two classes) are courts of first instance or original jurisdiction. They handle trails not appeals except
appeals from the DM 3 court.

Under the Kenyan Law there is no provision for trial by jury there for the magistrate is a judge for both the Law and for
Fact.

The magistrate do not sit with assessors.

Apart from trials the RMs court has jurisdiction to:

1. Preside over committal proceedings.

2. To conduct inquests.

COMMITTAL PROCEEDINGS

RMs court try criminal cases and committal proceedings. Section 233 of the CPC - conduction of committal
proceedings in respect of offences triable at the High Court e.g. murder and treason.

The role of the RM court is to decide whether or not the person would stand in the High Court for a capital offence.

Objective is that h high Court should not handle frivolous cases and therefore committal proceedings are there for
dismissal of frivolous cases and serious ones are taken to the High Court.

Committal Proceedings took the form of a preliminary hearing before magistrate and evidence is recorded by the
magistrate to determine whether the case was worth trying in the High Court. Replacement of preliminary inquests
where magistrate don’t get to the hear oral evidence. They don’t deal with witnesses. Instead they are furnished with
committal bundles comprised of a bundle of documents relating to the case i.e. the statement s of the witnesses and
the accuses.

Any expert evidence report from a doctor or analyst is passed to the magistrate to read in order to make a
determination whether there is a case worth trying in the high court.

1. If in the opinion of the magistrate the bundles have a caser triable at the High Court, the accused is
committed to the High Court for trial.
2. If the documents do not disclose any offence, the magistrate should discharge the accused.
3. If the documents do not disclose the offence charged but they do disclose a lesser offence, the magistrate
conducting the committal proceedings should charge the accused with that lesser offence, e.g. if charged
with murder, but documents do not show murder but show manslaughter, the magistrate should charge the
accused with manslaughter.

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INQUESTS

RMs court has jurisdiction to conduct an inquest. Inquests are conducted in the event of sudden deaths, including
cases of suicide.

They are governed by section 387 of the CPC. It covers deaths arising in police custody, in prison, roads traffic
accidents, and other circumstances where it is not readily explainable and not possible to point u\out a suspect.

It is the duty of the police to report such deaths to the police. The role of the courts in conducting inquests is
investigatory, it is not a trial.

After the inquest, the court may identify the person responsible for the dearth and recommend his arrest and trial.

Where the death cannot be conn3ected with the inquest the file will be closed and that would be the end if the matter.

Suspects are treated like witnesses but there is not enough evidence to charge them so the police just give their
names to the court to investigate.

JUVENILE COURTS

Created by the Children and Young Persons Act, cap 141 of the Law of Kenya and it is repealed by the Children’s Act,
which came into force in 2003.

The Juvenile Court tries e Law of Kenya and it is repealed by the Children’s Act, which came into force in 2003.

The Juvenile Court tries young offenders aged below 18. Under the relevant laws there are procedures that govern
juvenile cases. The procedure to be followed is not prescribed in the CPC, but is based in the Children’s Act.

Procedure:

1. Matters arte heard in camera without an audience,

2. The words conviction and sentence a re not used and the offender, if found guilty is not convicted and
sentenced.

The objective is to ensure that children and young persons are not treated like adults. The objective is to rehabilitate
young offenders; therefore terms, which are commonly associated with punishment, are avoided.

Juvenile courts are not allowed to impose a custodial sentence unless the offender cannot be dealt with otherwise.

Young offenders are placed in probation so that they are taken care of by probation officers and they are counselled.
Other measures taken include discharge where one is guilty but they are left.

There is only one juvenile court in Nairobi. Elsewhere juveniles are tried by the PM and the RM courts, but they follow
the procedure required when tying juvenile cases,
]
Where the trial is by DM2 and DM3the juvenile upon being found guilty is not sentenced there but referred to the RM fir
sentencing.

Young persons during sentencing are treated rather leniently. Custodial sentences are avoided as they expose the
young offender to hard-core criminals.

Keteta v R ( 1972) EA 532

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Minor convicted of attempted stock theft and sentenced to imprisonment, On appeal to the High Court applied cap 141
an stated that it was improper for a minor to be sentenced to imprisonment and went on to discharge hi conditionally.

Main v R (1970) EA 370

This is a robbery case involving a young person. The Children’s and Young Persons Act compelled the court to hold
that the protection offered under the act could only be taken away but express terms of section 296 pf the penal code
and since it does not do so the young person convicted were sent to borstal institutions.

Thomas Odinga Mulanya v R C.A. Criminal Appeal Bo 84 of 1986.

A young person pleaded guilty to manslaughter and sentenced to three tears imprisonment. He was seventeen tears at
the time of the commission of the crime. On appeal, the court of appeal found that he ought not to have been sent to
prison and his punishment converted to sic strokes of the cane.

COURT MARTIAL

Established under the Armed Forces Acts cap 199. It is a subordinate court. It is designed for the maintenance of
discipline among the members of the Armed Forces. Part V creates service offences i.e. crimes that can only be
committed by members of the armed forces. These include:

1. Treachery – in case of treason committed by members of the armed forces,

2. Cowardice
3. Offences arising out of service
4. Mutiny and insubordination,
5. Disobedience of lawful order from a senior officer;
6. absence and desertion without leave;
7. offences relation to maligning;
8. drunkenness and fighting;
9. rowdiness and quarrelling
10. Offences relating to property belonging to the armed forces, etc.

The Court Martial consists of:

1. Senior commission officer who are commission officers. These are the Commission Officers and the Military
Commission Officers. Senior Commission Officers should be in the rank of the Marshal and above.
2. Two other members who are also soldiers,
3. A judge advocate who is either a magistrate or an advocate. Te judge advocate is appointed with the consent
of the AG by the Chief Magistrate at the request of the Convening Officer. The rile of the judge advocate is to
guide and advice the court on matters of law. Proceedings are conducted according to the law. He is like a
judge, summing up the facts and law after both parties including the prosecution do their case. The judge
advocate sums up the case for the benefit of the court. The judge advocate is a member of the Court Martial
and therefore he does not participate in the determination of the case. He guides the case,

An appeal lies at the High Court to the decision of the Court Martial. It is with the leave of the Court Martial. It is not as
of right.

The AG has a right in the case of an acquittal.

Look at the relevant statute for the procedure.

If the procedure is not followed the decision can be thrown out on appeal to the High Court.

For an officer who breaks the law against a fellow member of the armed forces, they are triable in the Court Martial, but
if it is to a fellow citizen, then the case shall be tried in a civilian court. The same principle applies as regards the abuse
of property.

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HIGH COURT

The High Court is established under section 60 of the constitution and has unlimited jurisdiction and inherent powers in
its trial capacity in criminal; cases.

It has appellate jurisdiction over criminal matters arising from the subordinate courts.

It has country wide jurisdiction. The criminal jurisdiction of the High Court is ser out in the CPC i.e. secriunb4 which
empowers it to try any offence and impose any lawful sentence.

Doesn’t matter that matter is murder or treason. It can try for sedition or traffic matters, etc.

Apart from original and appellate jurisdictions it also has a supervisory jurisdiction over the subordinate courts and
inferior tribunals exercising judicial and quasi judicial functions. This is found under section 65(2) of the constitution.
Supervisory jurisdiction goers hand in hand with Judicial review in exercise of the order of certiorari, mandamus and
prohibition.

The order of certiorari quashes the order of the inferior court to body. It has been used by the High Court to quash
decision s of inferior tribunals in the area of criminal law.

This is where one feels that the other court has acted in excess of its powers by the order being illegal and irregular.

In the case of certiorari the case is R v Resident Magistrates Court in Nairobi and the Commissioner of Police
Ex Parte Ngecha Industries H.C. Misc Application No 182 of 1998.

Rons Chesogony v Chief of General Staff and Others Civil Appeal No. 84 of 2000.

Ex Parte Ngecha Industries

A certiorari was issued to quash an order issued by the Nairobi Chief Magistrate authorizing the police to search and
enter and search the premises of the appellant and seize d certain items contained in the search warrant issued by a
Ugandan court, The Ugandan search warrant had been issued by the Kampala Chief magistrate addressed to the
Kenya Police in Nairobi and requiring the Kenya Police to enter the premises of the applicant in Nairobi and search out
for certain things set out in a list attached to the warrant and if found forward by the Uganda Attorney General to
Nairobi Chief Magistrate who endorsed it. In execution of the same the Kenya police seized some goods and removed
them from the applicant’s premises. The applicant moved to the High Court to challenge the legality of the search. In
this case, the law applicable was the Extradition (contiguous and foreign countries)Act cap76 not the CPC. Under the
provisions of this Act, a magistrate us allowed to enclose a warrant of arrest issued in another country issued for the
arrest of a person in Kenya. The Act does not provide for the endorsement search warrants, the order was therefore
illegal and unlawful and it was quashed. The magistrate had acted in excess of his jurisdiction by endorsing the search
warrant.

In the other two cases the jurisdiction of the High Court was used to quash the proceedings of the Court Martial. In
both cases the procedure o the Armed Forces act had not been complied with,

In Ronald Muge the complaint was in relation to the appointment of the judge advocate where he latter was appointed
by the CJ without the consent of the AG. The proceedings were defective and quashed.

PROHIBITION

Prohibition is used to prohibit the doing of such acts which are ultra vires or contrary to the rules of natural justice by an
inferior court or tribunal. The order is available where the court acts:

i) in excess of it jurisdiction;
ii) denies the accused a fair hearing.

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In the case of Amrik Singh v the Resident Magistrate Court in Nairobi H.C. Misc App. No 117 of 1982 a trial
magistrate allowed an amendment of a charge without giving an opportunity for the advocate of the accused to be
heard on objection before the amendment was allowed. An order prohibition was granted by the High Court to prohibit
further proceedings in the matter.

In Jared Benson Kangwana v AG H.C. Misc App 446 of 1996 an order of prohibition was made to prohibit the
Nairobi chief Magistrate from hearing a criminal case against the applicant, on the grounds that the criminal trial
against the accused was an abuse of the process of court.

It was held that the said criminal proceedings against the applicant were instigated and maintained by 3 rd parties
particularly the TransNational Bank with a view to exert pressure on the applicant to pay the debt owed to the bank.
The charges against the applicant were preferred after he sued the bank on a civil matter. The court concluded that
the e was bad faith on the part of the bank and proceeded to prohibit the trial.

In the other case the matter of an application by Kamlesh Pattni & Others H.C. Misc. Appl. 1296 of 1998. AN
order of prohibition was made prohibiting the Kibera DMs court from proceeding with the charges against the applicant
on the basis that the charges were an abuse if the powers of court. In the case of Pattni, the charges had been
instigated by business rivals, the charges were intended to give credibility to the rivals counter claim filed against Mr.
Pattni.

Should a prohibition be issued against a 3rd party? Some judges argues that it is improper for the claim to be against a
3rd party and not the court.

Deepa Panachand v AG H.C. Misc. Appl.199 of 2000

John Wambua v Principal Magistrate Court Kibera H.C. Misc Appl 328 of 2000

In both cases H.C. refusal to grant an order fro prohibition to stop a criminal trial. In both cases the judge stated that
the complain was real that the 3rfd party rather than the court was acting improperly and there is no basis of prohibiting
the court.

In the Wambua case the complainant was that the KWS was using the prosecution to prosecute the applicant.

The H.C. also has revisional jurisdiction under the section 362 and 367 of the CPC. Revisional jurisdiction is intended
for correction of errors at the trial court which are not appealable in law. It is therefore supplementary to the appellate
jurisdiction of the High Court.

Revision was sought in Obiero v Republic (1962) EA 650 by the state for the enhancement of the sentence from
absolute discharge to conditional discharge. The state was of the opinion that the discharge occasioned injustice.

The tae had no right of appeal and the only way of attaching the sentence was by way if revision. The High Court has
the power to revise on its own motion without being moved by any of the parties.

The High Court can also revise a trial court order of a party who has the right to appeal but does not appeal. R v
Singh (1957) EA 882.

Revisionary powers should not be exercised where an appeal has been launched. Revision is sought mainly in cases
wirer there are errors e.g. misquoting provision s of the law. In civil cases revision is referred to as review there is an
apparent error in discovered after the trial.

The High Court has jurisdiction to issue a

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habeas
corpus order. This is like other orders in a prerogative order and is issued at he discretion of the H.C. and it secures the
release of any person and authority. The High Court uses the same to execute control over the police and prison
authorities where they hold a person without legal authority. Provision is under section 389(2) of the CPC and it literally
means “produce the body” as is directed at the person holding the applicant.

Re Ali rehman (1960) EA 302

An order of Habeas Corpus issued and directed at the commissioner of prisoner and eh officer in charge off Luzira
prison provision in Uganda to release the applicant who was legally in prison.

Re Application of Muthoni Muriethi on Behalf of Mwangi Stephen Mureithi (Nairobi H.C. Misc Criminal Appl
88 of 1982). Mwangi was at the time Assistant Director of the Intelligence and Moi transferred him to the Manager of
the Uplands Bacon Factory. He was arrested and held in custody with his lawyer, John Khaminwa. The wife sought an
order of habeas corpus. Unfortunately, the court did not get to issue the order for he was detained.

The order was not against the director of the CID to produce the body of Mwangi Stephen Mureithi.

Republic v Commissioner of Police and Director of CID Ex Parte Raila Odinga (Nbi. H.C. Crim App 344 of
1988).

Brought by the wife of Odinga after he was arrested before he was detained.

Re Ibrahim (1970) EA 168

It has been held that High Court can only issue in respect of a living person.

Held in Stephen Baraka Karanja v R (Nbi High Court Crim App 374 of 1998). The case was at ht height of the
Mwakenya. Karanja was arrested in Limuru disappeared for a week. The wife sought the order. Police were unable to
state his whereabouts, he had been tortured and killed and then buried. The state argu4e that Habeas Corpus could
not issue for the person was already dead. The judge held that Habeas corpus means produce the bodies.

The CJ then decided to change the case to Akilano Akiwumi instead of Schofield (the police officer who had taken him
to Nakuru, tortured, killed and buried him) who said that Habeas Corpus applied only in regard to living persons.

JURISDICTION IN CONSTITUTIONAL MATTERS

High Court has jurisdiction over the constitutional matters whether civil or criminal.

Section 84 and section 67 of constitutional.

Section 84 the High court protects the fundamental rights of individuals. Enables individuals who are complaining of
infringement of their rights to approach the High Court. This provision has been used to prohibit criminal proceedings
which are in the opinion of court an abuse of court process.

Stanley Munga Githunguri v R High Court Crim Appl 271 of 1985

The High Court ruled that the prosecution was an abuse of he process of court and granted a prohibition order under
the section 84 of the constitution. Section 84 would be applied where judicial review cannot be done and is not
available.

Section 67 of the constitution places primary duty of interpreted the constitution on the High Court. In the magistrate’s
court whenever a constitutional issue arises during trial should refer the matter to the High Court for interpretation. This
is essentially a reference by a magistrate i.e. it is the magistrate who refers the matter to the High Court on either its
own motion or on application by the parties.

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Reference initially goes to the CJ who must probate on the basis of merit. If he finds merit, he should appoint a
constitutional court.

He has stated on a number of cases that the CJ has exclusive administrative power to examine the issue and
determine whether it justifies the convening of a constitutional court.

Githungiuri v R Misc Appl 180 of 1985.

G.B.M. Kariuki v R H.C. Misc App 382

Samuel Okello & 3 Others v Chief Magistrates Court Nairobi H.C. crim App 182 of 2000.

Here the counsel for the accused had applied before the magistrates court for a number of documents to be furnished
to the accused by the prosecution. Facilities to help defense included statements recorded at inquiry and documents of
evidence for the trials.

A constitutional court appointed a=under section 67 must be made up of 3 High Court judges whereas a court
appointed under section 84 need not have 3 judges but the CJ may determine how many judges will hear the case.

COURT OF APPEAL

Established in 1977 after the collapse of the EAC. Established under section 64 of the constitution and is the highest
court in the country.

It enjoys appellate jurisdiction conferred by section 3 of the Appellate Jurisdiction Act cap 9. It has no original
jurisdiction and therefore cannot revise a decision of the high court and cannot enhance a sentence.

It hears appeals from the High Court whether original or appellate. Some acts of parliament make decisions of the High
Court final so no appeal in such cases can lie in the Court of Appeal. For example appeals from court martial under the
armed forces Act cap 499

Kabilu v R 1982 – 88 KAR 584

Applicant had been convicted by a court martial of taking part in a mutiny and sentence d to 8 years imprisonment and
dismissed from the armed forces. His appeal to the High court was dismissed and he filed a further appeal to the court
of appeal which was dismissed for being incompetent for want of jurisdiction of the court of appeal.

INITIAL STAGES OF THE CRIMINAL PROCESS

Substance of Procedure

ARREST

Occurs when a person restrains freedom of movement of another, it amounts to a deprivation of personal liberty. Under
the Kenyan Law, enjoyment of fundamental rights and freedoms is subject to public interest. There is a provision for
derogation from the rights and freedom for public interest.’

Section 85 provides fro derogation for the same of public security. Right to liberty and movement is enshrined in
section 82 of the constitution. For criminal procedure purposes the right to liberty may be derogated:

1. In the execution of a court sentence.

2. In the execution of an order of the High Court and the Court of Appeal for contempt.
3. In the execution of a valid court order for the fulfillment of an obligation of those in law.
4. To bring a person before the court an order . This is where he court issues a warrant of arrest for person to
be brought to court,
5. On reasonable suspicion of a person being about or having committed a criminal offence,

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 6. For those below age of majority for their education and welfare e.g. children in custody.
7. Purposes of preventing spread of contagious and infectious diseases.
8. Confinement of persons suspect of being of unsound mind, people addicted to alcohol or to drugs for the
purpose of their case.
9. For the purposes of extradition from Kenya / prevention of entry.
10. When here is lawful need to generate a warrant for detention.

The CPC does not define an arrest and there is no definition of this so we resort to case law as in Hussein v Chang
Fook (1970) 2 WLR 441 where Lord Devlin stated that an arrest occurs:

1) when a police officer states u terms that he is arresting; or

2) when an officer uses force to restrain the individual concerned; or
3) when by words or conduct the officer makes it clear that he will use force if necessary to restrain
the individual from going where he wants to go; but
4) it does not occur where he stops an individual to make inquiries.

The provisions relating to arrest found in section 21 – 40 of the CPC.

Section 21 provides that in making an arrest the arresting officer shall actually touch or confine the body of the person
being arrested unless the person submits to the custody either by word or conduct.

Section 24 provides that the arrested person must be subject to more restraint than necessary to prevent escape.
Once a person submits to custody of arrestor he should not be tied up. It is a requirement of a lawful arrest that the
arrested be informed of his arrest.

Section 72(2) of the constitution – any person arrested and detained should be informed as soon as is reasonably
practicable tin a language he fully understands the reasons for his arrest. This requirement arises from the
Common Law.( Mwangi s/o Njoroge v R (1954) 21 EA 377)

Wheatly v Lodge( 1971) 1 All ER 173.

In some circumstance s it is not necessary o inform the arrested person the reason for arrest for example where the
arrested:

i) person knows the nature of why he is being arrested;

ii) where he suspect runs away from his arrestors.

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

Court here discussed the circumstances where it is not necessary to inform the person of reasons for his arrest.

1. An arrest can be effected either with or without a warrant.

2. An arrest can be enforced either by a law enforcing agent (police, DO, DC, and Immigration Officer)or by a
private person.
In either case the pier of arrest must be exercised reasonably within the law.

Where unreasonable force is used or where an arrest is unlawful note that there exists remedies in civil criminal law to
redress wrongs committed against the victims. This is a constitutional right - the right to personal liberty so if it is to be
deprived there should be remedies.

ARREST WITHOUT WARRANT

I) By Police Officers

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Police officers are bound by virtue of the police act and Administration Police Act to maintain law and order in society.

In the normal course of their duty they carry out arrests,

Most arrests without warrants are committed by police officers during the course of their duties. Powers of police
officers in arrest, prevention of crime and investigations are covered by the CPC and other statutes.

The CPC is the main legislation covering arrests.

Section 29 of the CPC sets out circumstances in which police officer may arrays a suspect without a warrant by the
curt. They are:

1. Person suspected of having committed as cognizable offence.

2. person who commit a breach of the peace I his presence.
3. person obstructs officer as he exercises his duty;
4. person who escapes or attempts to escape from lawful custody;
5. person who is suspected upon reasonable ground of being a deserter in the armed forces;
6. person found in a street or public place at night and suspected reasonably of being there for an illegal
purpose or unable to give a reasonable explanation or give account of themselves.
7. person with instrument of housebreaking without reasonable excuse;
8. reason of possession of anything suspected to be stolen property;
9. person reasonably suspected of having committed an extraditable offence (Offence committed in another
country by suspect or offence where one may be extradited from Kenya).
10. Person for whom he has reasonable cause to believe or not been issued. Under section 30 a police officer
may arrest without a warrant persons who are vagabonds, habitual robbers and thieves.

Under section 32 – a person who has committed a non-recognizable offence ( offence in respect of which police
require warrant of arrest – minor offences) refuses to give his name or residence, police may arrest without a warrant.

What happens to people arrested without a warrant.

Section 33 of the CPC requires that a person arrested without a warrant e taken to a magistrate or person in charge of
police station as soon as possible and thereafter to court.

The decision to charge the person taken by the OCS.

Section 3b – when arrested person is taken to the police officer in charge of the PS the Police Officer may inquire
about the case and release of the person on bond unless he is suspected of having committed a capital offence or the
offence is found to be serious in nature.

The officer in charge may set the suspect free altogether if he finds that there is insufficient evidence altogether.

The provision of the CPC are further entrenched by section 73(3) of the constitution which provides that the arrested
person who is not released should be brought to the court as soon as is reasonable practicable. At any rate within 24
hours of his arrest in cases of offences other than those punishable by dearth e.g. burglary, theft and within 14 days of
arrest for capital offences.

Section 73 is an inclusion in the constitution – before it was that the people should be brought to court within 24 hours.
There is an amendment. It was found that it would be unfair if one would be arrested and charged immediately when
they were innocent.

In Imanyara v Nairobi H.C. Misc App. No 125 of 191 it was stated that in situations here a person is arrested
without a warrant, 3 statutory provisions are relevant. These are:

12
 1. Section 72 of the constitution – provision relating to the deprivation of property.
2. section 3b of the CPC –p Provision relating to the production in court of a person arrested without a warrant.
3. Section 29 – 39 of the constitution – provisions relating to arrest without warrant.
4. Also stated that the effect of a combination of the provision of the CPC is that the prisoner should be brought
to court as soon as is reasonably practicable as soon as he ends up in police custody if he is not released on
bail from the police station.

3) BY MAGISTRATE

Section 38 of the CPC empowers the magistrate to personally arrest an offender or order any person to do so when
an offence is committed in his presence or his jurisdiction.

He may thereafter release the offender on bail or commit him to custody.

Under section 39 of the CPC a magistrate may arrest or o4rder arrest in his presence within the local limits of his
jurisdiction any person whose arrest by magistrate is competent oat the time and can issue a warrant of arrest. He can
only arrest a person within his jurisdiction(????).

It was stated in the case of Kionywaki v R that in effecting an arrest magistrate acts as a judicial officer and not in an
administrative capacity and cannot be subject to civil and criminal proceedings.

3) PRIVATE PERSONS

Section 34(1) grants a general power to arrest anyone who in his view commits a cognizable offence or who he
suspects of committing a felony. This enables members of the public to arrest someone.

Section 34(2) allows property owners and their servants or agents to arrest without warrant any person who comm8itrs
any offences of damage or injury to property.

Private persons should use reasonable force just like police where the person to be arrested resists.

Use of unreasonable force to effect an arrest my lead to criminal and civil liability (assault/false imprisonment and
battery).

In Uganda v Muherwa A private person who used a weapon to incapacitate the deceased suspected to be thief in
the process of which he died was prosecuted and convicted of manslaughter.

In Beard and Anor v R the appellants, two private persons arrested the complainant, tied him and assaulted him
although he made no attempt to escape. Delayed in handing him to the police. Prosecuted for assault and unlawful
confinement. Convicted of these offences as they used unreasonable and unnecessary force.

Under section 35a person arrested by a private persons without a warrant should be handed over to the police without
delay. The police, depending on the circumstances, should rearrest him or set him free.

4) BY CHIEFS

Section 8 of the Chiefs Act (cap 148) empowers a chef and an assistant chief to arrest any person for the purpose of
preventing them from committing a crime in their jurisdiction.

Empowers them to arrest any person who commits a cognizable offence. In the eyes of the law chiefs and the
assistant chiefs are police officers.

In Lamabutu v R the court recognized chiefs, assistant chiefs, PCs and DCs as police officers.

AREREST WITH WARRANT

13
Mainly required for minor offences and misdemeanors (less than 3 years). Warrants a\of arrest are issued to secure
attendance of person in court. This procedure of securing attendance is applied mainly in cases where the proceedings
are commenced by first\ laying a charge in court.

After lying a charge in court you seek his attendance in court as opposed to police arrest then the accused is taken to
court.

This procedure is mainly used by private prosecutors e.g. labour officers.

As an alternative to an arrest warrant, he prosecution can apply for summons to issue against the accused person.

Under section 90 with respect to private prosecutions upon receiving a complaint fled by private prosecutors, the courts
may either issue summons to accused or warrant to compel attendance in court.

The proviso to section 90 states that a warrant be issued unless a complaint is made by private prosecutor.

Under section 100 a warrant of arrest may be issued to a person served with a summons to appear in court.

Section 101 warrants of arrest are issued where the accused disobeys summons.

Section 102 – warrant s of arrest must be in written form signed by the magistrate and it must bear the seal of the
court.

It must briefly state the charge against the suspect and describe the suspects details so that the poison receiving the
warrant knows the offence charged.

NB: A warrant of arrest is directed to a particular person ordering him to arrest the person in respect of whom it is
issued and bring them to court.

Person is OCS, OCP.

Not issues generally to the police, but a particular person is that they are accountable.

Warrant of Arrest remains in force until either execution o cancellation by the courts is issued.

Kingori s/o Kiranditu v R

It was stated that any person or police officer to whom warrant is issued is bound to execute it like the court which
issues the warrant, he is protected by judicial immunity.

Sometimes in private prosecution when the police is unwilling to arrest a person, once one goes to court a arrant of
arrest is issued the police have tom\ comply.

Section 103, the court issuing a warrant may direct security t be taken in respect of an offence other than murder,
treason, rape in which case the officer such release such person in court if the warrant allows for the release of the
person on bond.

The warrant of arrest may be directed to the following persons:-

1) Police officers – usually to one particular officer or officer in charge or to all other officers in a
particular division.
2) To a land owner, manager and farmer of land. Warrant issued to such persons is to allow them to
arrest any person who enters their land. On arrest they should hand over the accused to the
nearest police officer.
3) By virtue of section 107 the person effecting arrests should notify the substance of the warrant to
the suspect and if he is required b y the suspect and show him the warrant.

14
Section 22 imposes duty on an occupant of premises or any person in charge of premises to afford all reasonable
facilities of arrest i.e. to allow the person to enter premises discharging a warrant arrest, i.e. to allow the person to
enter promises to effect an arrest if there is a reasonable suspicion that the suspect is in those premises. The facilities
should also be provide to such persons to enable them to search the premises. Where no reasonable facilities are
allowed (I.e. access) the officers may break in even without a warrant. Only break in when they are not allowed entry).

Section 22(2) women in occupation of premises who are not suspects and who by custom do not appear in public
should be given reasonable facilities to withdraw (Muslim Women).

Section 23 allows arresting persons to break out of the premises to liberate themselves.

The CPC provide elaborate procedure where the arrest has to be effected outside the jurisdiction of court.

Section 10 – The warrant may be forwarded by part or otherwise to the magistrate within the local limits where the
jurisdiction it I to be executed.

The magistrate to whom the warrant is forwarded should. Endorsement is crucial (within his jurisdiction). It is his
responsibility to cause it to be executed.

Under section 111 instead of the warrant being forwarded to the magistrate within whose jurisdiction local limits to
which it is to be execution the issuing the court may direct it to a police officer to take it for endorsement by a
magistrate within the local limits.

NB: the police officer may execute the warrant without the endorsement if there is reason to believe the delay will be
occasioned by obtaining the endorsement. Officer has to be executed certificate explaining the same. If it is not so
endorsed and if it is enforced without endorsement, the arrest will no doubt be unlawful/.

A person arrested outside the local jurisdiction of the issuing magistrate may be taken. Before the magistrate within the
local limits of whose jurisdiction the arrest was made. Necessary to avoid holding the person for more than 24 hours.
Apart from the police, the court of law and private persons, other tribunals discharging functions of a judicial nature
have powers to issue warrants of arrest. For example the Rent Tribunal, judicial commission of inquiry.

Section 30 of the National Assembly powers and privileges Act, vest the powers on the members of the National
Assembly to arrest.

SEARCH AND SEARCH WARRANTS

Like arrests, the search of the premises of the suspect and seizure of the property of the suspect infringes on the
fundamental rights and freedoms of the individuals and in particular the right to privacy.,

The enjoyment of the right to privacy of the freedom for the invasion of privacy should be weighed against the rest of
the society at large in finding out wrongdoers and redressing crime. The invasion of privacy of the individual in the
interests of the society should be done properly within the law.

Search warrants governed by section 118 – 122 of the CPC

A search warrant is defined as an authority to search a place for evidence of a crime which is suspected or believed to
have been committed or to make an arrest of a suspected criminal.

A search warrant authorizes the person to whom it is addressed to enter a place or premises described in the warrant.
If the item is found, it should be siezed and taken to a court having jurisdiction.

Note: Warrant describes the premises to be searched and the item to be searched for. If the premises is not the right
one it is an illegal search and the owner may commence proceedings on tortuous liability.

15
A police officer having reasonable suspicion that there is evidence in a certain place for the investigating of a crime, he
may apply to the court for a search warrant authorizing him to search the place.

Under section 118 of the CPC it is necessary that the be evidence of a reasonable suspicion which must be given on
oath. The Police officer must show hat there is reasonable ground for suspicion and given by way of an affidavit sworn
by the officer.

Under section 119 of the CPC a search warrant may be issued on any day including Sunday for urgent matters.

A search may be conducted with or without a search warrant. Where the same is conducted with a search warrant
under section 120 of the CPC there is an obligation on the person in charge of a closed place or premises to allow
ingress and egress in and from the premises to allow them to enter and t leave for searching.

Failure to provide such allows the police officer to use force to enter or break out of the premises.

By virtue of section 104,106, 109, 110 and 111 of the CPC on warrant of arrest also applies to search warrants, i.e.:

1. Warrant should be in the hands of the magistrate or the judge issuing it and it must be signed;
2. it should bear the seal of the court;
3. it must state the offence against the accused person in respect of which it is issued;
4. may be directed to one or more police officers or to all other police officers in the relevant area.
5. If it is to be conducted outside the jurisdiction of the court it must be endorsed by the magistrate within the
local limits of which the search is to be conducted.
6. May be executed without endorsement in courts where there is delay.

The directions in the warrant must be strictly observed – articles, items not in the warranted should not be seized. Only
what is mentioned unless they a r likely to produce additional evidence as to the identity of the items or they are
relevant to the charge.

The seizure of irrelevant articles is legally unjustifiable and in most cases causes damage to the prosecutions case.

Vivendi v R (1957) EA 355

Appellant is convicted in district court of Bussaga of being in possession of property reasonably suspected of having
been stolen. Failure to give a satisfactory account of possession. Police was acting on information received. They
searched the house and shop of the appellant looking for a camera and expensive sunglasses which they did not find.
Instead they found a tiny box and exposure between under the counter said to have been left by V 3 months ago. V
admitted leaving expensive meter with the appellant but denied that the meter in question was the one deposited by
him with the appellant. V called as prosecution witness and denied ownership of the meter found in the shop. He
denied ever depositing the exposure with the appellant. No search warrant produced by police and the only evidence in
the shop was the oral evidence of the police against him which was inadmissible under section 63 of the evidence
ordinance.

It was held that it is possible to establish that a particular search was conducted under the authority of a warrant
without proving contents of warrant.

The evidence did not justify a reasonable suspicion that the exposure meter had been stolen.

Circumstances where a search is conducted without a search warranted.

Where a person who is being sought by the police to be arrested enters a place where the process of getting a s4earch
warrant would give the fugitive a chance to escape, section 22 of the CPC allows the police to enter such a place and
search for the person t be arrested even thought they do not have search warrant.

NB: The police should only carry out a search fro the person when they are in hot pursuit of the a person and they are
afraid that he would disappear if they wait for a court to give them a search warrant.

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Section 26 of the CPC empowers the police to detain and search aircraft, vessels vehicles, and persons and if they
have reason to suspect the same contains stolen property or property unlawfully obtained.

This person may be exercised by other persons with permission s from the commissioner of police e.g. officers of
immigration department, income tax, customs and excise department.

In all these circumstances the suspicion must precede the process of stopping a person for a search. Suspicion arising
from the stopping of the search renders the action of the police illegal under section 26 of the CPC.

Where section 26 discusses at length

Keityo v Uganda (1967) EA 23

Koech v R (1968) EA 108

Section 27 A search to a woman must be done by another woman.

CHARGES AND INFORMATION

Under section 89n of the CPC criminal proceedings may be instituted in 2 ways:

1. By way of making a complaint;

2. by the production in magistrate court of a person who has been arrested without a warrant.

COMPLAINT

Any person affected by the conduct of another may make a complaint to a magistrate having jurisdiction.

Under section 89(3) the complaint may either be oral or written.

Oral – it should be reduced into writing by the magistrate. This helps illiterate people who cannot write an affidavit on
oath. Thereafter the magistrate should sight the same.

Under section 89(4) the magistrate upon receiving the complaint should draw up or cause to be drawn up a formal
charge based n the information given by the complainant.

Magistrate may refuse to admit the complaint or formal charge drawn up if the same does not disclose any offence, He
must give reasons for refusing to admit a complaint. These proceedings are in chambers and are not in open court.

The process of commencing proceedings is not commonly used in private prosecutions. Otherwise a complaint is
usually made at the police station. Police conduct preliminary investigations and then arrest accused person or make a
complaint to magistrate then get a search warrant and then the arrest warrant.

PRODUCTION OF THE ACCUSED IN COURT

Where the accused is arrested without a warrant the law requires that they are brought to court as soon as possible
without delay.

Under section89 the arresting officer may draw up the formal charge against the occupied and present him to the
magistrate(section 89(4))

Where the formal charge is drawn by the police if it should be signed by the officer in charge of the police station.

Alternatively the accused may be presented to the court where the magistrate under section 89 (4) may draw up and
sign the same.

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Both circumstances under section 89(5)may decline to admit the charge if the charge does not disclose any offence.

The court does not normally draw the charge.

WHAT IS A CHARGE

A charge is a complaint formally drawn up. A formal written accusation of an offence is drawn up by the magistrate or
police officer and signed as required by law for use in a c criminal trial or preliminary proceedings (committal
proceedings).

A charge is an equivalent of pleadings in civil cases. It contains allegations against the other party.

It is drawn up to inform the court of the offence allegedly committed by the person it is called upon to try.

To inform the accused of the allegations against him so that he can prepare a defense.

Mandatory requirement that a charge must be based on some known offence

Under section 77(8) of the constitution, it is provided that no person should be convicted of an offence unless the
offence is defined in written law.

Each charge is based on known offence in written law. The charge should be in the prescribed form. Section 134 of the
CPC prescribes that it should contain 2 essential elements:-

i) The statement of the offence

ii) The particulars of the offence.

Look at the second schedule of the CPC pages 150 – 156 for the prescribed forms.

The charge should describe the offence briefly and plainly and concisely. It should not contain any evidence. Technical
terms should not be used. Because this is a document to be given to the accused who is a simple person who does not
understand such terms. Therefore it should be in ordinary language for ordinary people to understand.

The statement of the offence usually states the law and the procedure and the particular section of the law which have
been allegedly offended.

The particulars of the offence should contain the date and the place where the offence was allegedly committed, the
subject matter of the charge (acts which make it an offence). The particulars should contain the identity of the
complainant and accused, for example to whom the house burnt belonged to.

With respect to sections the requirement is that the charge should state the sections and subsections of the offences
charged. The penal code or statute may create a number of offences in one section so sometimes the charge may
state the wrong or non-existent section or subsection. The effect of such lapses would depend on whether the same
occasion or a miscarriage of justice.

If in the opinion of the appellate court no injustice was occasioned on the accused by citing the wrong section, the
conviction shall stand.

However where the court sees the citation of the wrong section causing a miscarriage of justice the trial would be
declared a nullity.

Avone v R (1969) EA 129

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Appellant was charged with three counts of obtaining credit by fraud or forgery and of impersonation. The relevant
sections of the penal code under which 2 of the counts were laid were misdescribed. The appellant was convicted on
all 3 counts.

He appealed on grounds that the conviction was based on a defective charge and that therefore the conviction was a
nullity in law. The High Court dismissed the appeal and found that the misdescription for the charge had not
occasioned any prejudice on the appellant.

Similarly in Sabur v R (1958) EA 126 the appellant was charged with committing a traffic offence contrary to section
39(1) instead of being charged under section 40(1) of the Traffic Ordinance of 1951. Section 39(1) of the said statute
did not create the offence was not arrested by section 39 but by section 40.

He was tried and convicted. The appellant was tried and convicted He appealed against the conviction grounded on
the defectiveness of the charge and that it should be dismissed.

It was held that since the particulars of the offence were adequate to inform the appellant of the offence with which he
was charged there had been no failure of justice and the defect was curable under the CPC section 382 which
provides that unless the defect in a charge occasions a failure of justice or prejudices an accused person an order for
conviction based on the defective charge should not be quashed.

Where grave defects exist the court should declare the charge defective and improper. Particularly where the
particulars of the charge do not disclose the offence.

Uganda v Keneri Opidi (1965) EA 614

The particulars of the offence should be clear in order to enable the accused person to know the offence he is charged
with. The charge should be such that it is easy for them to defend themselves. Clarity is a requirement.

Musoke v Uganda (1972) EA 137

It was held that the charge of robbery which stated that a complainant was robbed of household goods without stating
the identification and particulars of the goods stolen, did not disclose the offence of robbery. State that the goods were
stolen so that the accused know what they stole.

Kigecha Njuga v R EA 773

The accused while driving a disguised car was chased and arrested by police from a tip off by a n informer. Under the
driver’s seat the police found a Simi. He was charged with being armed by day with the intent to commit a felony
contrary to section 305(1)(d) of the penal code.

The felony that the accused was charged with was not stated. He was convicted and on appeal the High Court set
aside the conviction on the basis that the intended felony ought to have been disclosed din the charge if there was
doubt a to the intended felony, different felonies should have been stated in the alternative.

Nahashon Marenya v R Nairobi H.C. Criminal Appeal 786 of 1982

Appellant had been charged with failing to comply with a curfew restriction order, contrary to section ((1) of the public
order Act. Particulars of the offence did not disclose the details of the curfew restriction order that the appellant had
allegedly failed to comply with, when the curfew order started and ended.

It was held on appeal that the charge did not disclose an offence. The details were insufficient. They did not disclose
enough details to assist the accused in his defense. Todd J said of the charges and particulars:

“charges and particulars should be clearly framed so that the accused person may know what they are charged with
and proper inferences should also o be made otherwise confusion may arise and if confusion arises it cannot be said
that failure of justice may not have arisen.”

19
An error in the particulars is not necessarily fatal to the charge unless it has occasioned injustice on the appellant,

Mwasya v R

Sometimes the charge may contain no particulars at all or it may contain the wrong ingredients. A charge would be
incurably defective for lack of particulars. The accused ought to be discharged.

Kubanisi v R (1965) EA 572

The charge was framed in the following terms:

Particulars of Offence

Attempted to commit an offence contrary to section 398 of the penal code.

Particulars

Wander Reuben Kubanisi on the 29th of January, 1965 at 8.00 pm at Bungoma Railway Station attempted to commit a
felony contrary to section 389 of the penal code.

The appellant was tried and convicted. On appeal the High Court found the charge barred for uncertainty as it did not
disclose the felony alleged to have been committed.

A charge would also be incurably defective if it contains the wrong ingredients of the offence or if it omits an essential
ingredient.

Yosefu and Anor v R

The Appellant was charged with being in possession of game trophies without a valid license contrary to section 14 of
the Games (Preservation and control) Act ( a Ugandan Statute) The trophies were listed as 17 drums made put of
zebra skins and 40 pieces of zebra skin. Section 14 of the Act provided that it shall be an offence for any person to
possess any other part of any animal which has been killed captured etc. The accused pleaded guilty and was
sentenced to pay a fine.

On appeal he held that the charge was defective in that it did not allege an essential ingredient of the offence, i.e. that
the skins came from animals killed, captured in contravention of the Act. Spry J said that it is essential that every
charge should allege all the essential constituents of an offence.

The appeal was allowed.

Ngige s/o Gatonye v R

Appellant was charged with moving maize without a permit contrary to section 24 of the Maize Marketing Ordinance.
On appeal they found that the particulars of the charge did not conform to section 24(2) of the ordinance. The
particulars do not refer to any such order. The charge should have stated that the maize was moved without a permit.

It was held that the charge was bared because it did not mention the order concerned. The relevant order to be
mentioned as contravened was the Maize Marketing (Movement of Maize Products) Order.

Shah v R

20
This case shows that in cases of stolen property, the charge will not be barred or defective if it omits to name the owner
of the property. A conviction based on a charge where the charge omits to name the owner of the property cannot be
c=quashed on that count provided there is evidence that the property has been stolen.

21
HOW TO FRAME A CHARGE

Section 137 of the CPC provides detailed rules for the framing of a charge.

PART A

The form and structure of the charge:

1. The charge should commence with a statement of the offence charged called “statement of offence””.
2. The statement of the offence should describe the offence in ordinary language, without stating all the
essential elements of the charge. Disclose the section of the statute or enactment of the offence.
3. The form of the charge should conform as nearly as possible as the form provided in the 2 nd schedule of the
CPC.
4. Where the charge contains more than one count or the charge has various offences the counts should be
numbered constructively.

PART B

Description of Property

1. Description of property should be in a simple and straightforward language which is easy to understand.
2. It should indicate clearly the property referred to.
3. Where the property is owned by more than one person, it should suffice to describe the property as being
owned by one of the persons. You do not have to list all the persons.
4. If the property is owned by a body of persons with a collective name, it would to use the collective without
naming any individual owners,
5. If property belongs to or is provided for use by a public establishment, service or department, it may be
described as policy. It may be described as property of the government.
6. If there are coins, bank notes or valuable currency, these may be described as only money.

PART C

Description of Person

1. The description or designation of the accused person or of another person to whom reference is made
should be sufficient to identify him. Use names.
2. If the name of the other person is unknown or for some person it is impracticable to give such a designation
or description, a description may be given or described as a person unknown.

PART D

Documents

1. These should be referred to by name or by designation or purport.

2. there is usually no need to state the contents of a document in the particulars of a charge.

PART E

Provisions as to statutory offences

Where an enactment constituting and offence states the offence to be the doing or the omission to do any one of any of
the different acts in the alternative or the doing or the omission to do any act. In any one of the many different
capacities or with anyone of the different intentions or any part of the offence in the alternative, the act, omissions,
capacities or intentions stated in the alternative in the count charging the offence. Section 181 of the CPC and section
21 of the CPC.

22
DUPLICITY OF CHARGES

It is a legal requirement that a charge should not suffer from duplicity. Duplicity occurs where the charge or count
charges the accused of having committed two or more separate offences, It is said to new duplex and barred for
duplicity. Duplicity occurs when a statute creates offences in the alternative, Section 86 of the Traffic Act illiterates for
offences created in the alternative e.g. causing death by driving a motor vehicle:

a) driving recklessly;
b) driving at high speed.
c) Driving in a manner dangerous to the public.
d) Leaving the motor vehicle on the road in a manner dangerous to the public.

All these are stated in the alternative so that you cannot be charged of two or more but only one of the alternative.

A count charging the accused of causing death by driving the motor vehicle recklessly and at high speed is duplex. The
charges should be expressed in the alternative:

Mwambalafu v R (1966) EA 459

The appellant was charged with the alternative counts of an offence i.e. the offence of arson and attempted murder.
The particulars of the charge o arson alleged that the appellant had set on fire two houses, one belonging to A and the
other belonging to B The houses stood more than 100 yards apart.

He was charged with one count of murder and one count of arson. The particulars stated that he attempted to cause
the death of A and his wife by setting on fire 2 house one A’s and the other B’s. Evidence showed that the appellant
had attempted murder on 2 occasions. The first , he burnt A’s house and when A took refuge in B’s house, he burnt B’s
house as well. The question was whether there was duplicity.

It was found that yes there was, with respect to the arson charge as there were two offences arising from 2 acts of
arson. Secondly, there was also duplicity with respect to the attempted murder hence there ought to have been two
charges off attempted murder. Thirdly, the attempted murder counts should be framed in the alternative. There ought to
be 4 counts and not 2 but the e second attempted murder count should be in the alternative.

Saina v R (1974) EA 83

The appellant was charged on a single count with the offence of housebreaking, theft and handling stolen property. He
was convicted but on appeal the High Court found the charge barred for duplicity. It was found that one count charged
3 separate offences i.e. shop breaking contrary to section 306(a) of the penal code, handling stolen goods contrary to
section 322 of the penal code. It was forth held that each offence should be set out in a different count. The charge of
handling stolen property is in the alternative. The appellant was charged.

Bhatt v R (1960)

The appellant was charged with being in possession of obscene material, contrary to section 181(a) of the penal code.

It was alleged that the appellant for the purpose of or by way of trade for the purpose of distribution or public exhibition
had in his possession 37 photographs of an obscene nature which could tend to corrupt the morals of any person etc.
Section 181 talks of alternative purposes.

It was held that (on appeal) the particular motive why the appellant has the photos should have been averred to the
purposes. It 2as wrong for the charge to refer to many purposes. The averment of several purposes made the charge
barred for duplicity. Each of the several particular set out in the charge constituted a separate offence. Charging the
accused in this mannered prejudices his defense.

23
Koti v R (1962) EA 439

Appellant was charged and convicted of wrongfully attempting to interfere or influence witnesses in a judicial
proceeding either before or after they had given evidence contrary to section 2121(1) of the penal code. On appeal, it
was held that the charge was duplex, i.e. it charged with two offences i.e. interfering with the witness before and after.
They should state if it was before or after. If it was before and after there should be 32 counts. Duplicity is allowed in
certain circumstances. There are exceptions to the general rule that count should not charge an accused with more
than one offence.

Exceptions to the General Rule

1. Where the form of preferring a charge is allowed by statute. The second schedule of the CPC authorizes
charging of 2 offences in one count in respect of:
a. The offence created under section 330 of the Penal ode in respect of false accounting;
b. Second schedule authorizes offences creates under the section 304 and section 379 i.e. burglary
and stealing. Form 9, in the second schedule.

Pope v R (1960) EA 132

Accused was charged with fraudulent accounting false accounting contrary to section 330(a) of the penal code.

2. Where the sepaarate offences are charged conjunctively using the word and as opposed to or if the matter
relates to one act. In Gichinga v R the appellant was charged with driving a car recklessly. In the
particulars, it was stated that he drove in a reckless manner and at a speed which was dangerous to the
public having regard to all the circumstances of the case contrary to section 86 of the Traffic Act. The Act
employs OR rather than AND. The magistrate acquitted the accused because of duplicity as it alleges the
commission of two offences. On revision by the high court it was held that the charge was not duplex and it
had been expressed conjunctively and it referred to one incident or act i.e. appellants manner of driving at
the relevant time. If it had been expressed using the disjunctive OR. In a. reckless manner or at a high speed
it would have been duplex

EFFECTS OF DUPLICITY

The law is not clear. There are two opposing views:

1. One view holds that duplicity is an incurable defect which can be cured by amending the charge hence if
found to be duplex, the accused should be discharged. This was seen in Cherere Gukuli v R (1955) 22
EACA 478 and followed in Saina v R . Those who subscribe to this position hold that a count which
charges for two counts is barred for duplicity and a conviction based on it can not stand.
2. The other view holds that the true test should be whether injustice or prejudice has been occasioned on the
accused by the duplicity so that where the accused suffers no prejudice, a conviction o duplicity should not
stand. This school relies on section 382 CPC which provides for finding of a sentence or order issued by a
court should be reversed or altered on appeal or revision on account of error omission or irregularity in the
charge unless the error omission or irregularity has occasioned a failure of justice. This school of thought
was followed in:
a. Kababi v R (1980) KLR 95 . The appellants was charged in a single count with causing the
dearth of 3 persons by dangerous diving. He was convicted. He appealed, challenged the decision
of the court that it was based on a barred charge. It was held that the failure to charge or to file 3
separate counts did not occasion injustice though there was duplicity. The conviction was upheld.
b. Koti v R : Appellate court found the charge was duplex but declined to interfere because it did not
occasion any in justice. It was held that the test in deciding whether a failure of justice occurred or
the accused has been prejudiced in his trial.
c. Mwambalafu v R : the appellate court found that the arson charge was duplex but that it did not
occasion any injustice. The court relied on section 382 of the Tanzania CPC.

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 d. Mwangi v R : The appellate court found that the charge was duplex but that it had occasioned no
injustice.

PUBLIC PROSECUTION
Qualifications of Prosecutors
Prosecuting counsel in the Attorney-General’s office are qualified advocates of the High Court of Kenya.However, the
AG is empowered under Section 85 of the Criminal Procedure Code to appoint public prosecutors. Pursuant to these
powers, the A.G. has appointed police officers to act as advocates, though they are not lawyers by training.
Delegation of Prosecutorial Powers
According to Section 26 (3) of the Constitution, prosecutorial powers in criminal cases are vested in the A.G.
except courts martial prosecutions. Section 26(5) empowers him to delegate his duties and powers to subordinate
officers. Sections 82, 83, 84 and 87 of the Code also enable him to delegate the power to enter nolle prosequi, to
file information in the High Court and to withdraw charges in subordinate courts. The officers to whom powers have
been delegated include the Solicitor General, Deputy Public Prosecutor, Principal State Counsel, Senior State
Counsel, Provincial State Counsel and the Director of Public Prosecutions. The exercise of the powers of the A.G. by
these officers operates as if the A.G. himself had exercised them.
Police Prosecutors
The right of the police to prosecute is by virtue of delegated powers from the A.G. under Section 85 of the Code.
Section 14 of the Police Act does not mention prosecutions as one of the functions of the Force, confirming that
prosecutorial powers are derived from a delegated power. Most prosecutions are conducted by police in the
magistrate’s courts and, as prosecutors, they fall under direct control of the A.G.
The A.G. supervises police prosecutions either in person or through his officers, which is achieved by the requirement
of statutory consent of the A.G. in respect prosecution of certain offences such as prosecution of foreigners for
offences committed within the territorial waters of Kenya. The purpose of requiring his consent is basically to ensure
that in serious offences, there is prima facie evidence to warrant a prosecution. Thus the A.G.’s office acts as a filter for
weak cases. Once the A.G. has declined to give his consent, the charge against the accused is withdrawn. Another
reason for the requirement of consent is to enable the A.G. take into account the issue of public policy.
Again, in some of the serious offences, legal technicalities abound in the drawing of the charges. Supervision is also
achieved by perusal of police files submitted for evidence in case of public concern that raises public considerations or
legal technicalities. Vide this process, a uniform policy of prosecutions is maintained by the A.G.’s office.
The police, either as prosecutors or investigators, are not legally trained hence the need for supervision. There could
arise differences of opinion between them and the A.G.’s office in assessing whether the evidence in any given case
warrants a prosecution. While the police will decide on the evidence and come to a conclusion of factual guilt or not,
the A.G. will consider the law applicable and the effect on public policy. In some cases, the assessment of the evidence
by the police may be influenced by information gathered during the course of an investigation, which may not be of any
evidential value. The A.G.’s opinion prevails where such differences arise, as seen in R v Kabartisi Kibisu, Cr. Case
No. 229 of 1989, in which the investigating officer charged the accused with theft. The charge was withdrawn by the
A.G. as the evidence was insufficient to support the charge.
Central Government Departments
Departments such as the Factories Inspectorate and the Drugs Inspectorate also carry out prosecutions. The A.G.
appoints the prosecutors in these departments as they conduct public prosecutions; the A.G. occasionally takes over
without leave of the court. In R v Menya & Another, Cr. Case No. 642 of 1987 , the Provincial State Counsel took
over the prosecution from the Price Controller prosecutor in a case where the accused were charged with overcharging
offences. In R v Victoria Enterprises Ltd, Cr. Case No. 244 of 1989 the A.G.’s power or taking over prosecution
was put into light. The Factories Inspector had prosecuted the accused on charges of failure to provide sanitation and
protective clothing for employees.
Local Authorities
Local Authorities have enacted by-laws which have effect in their areas of jurisdiction, breach of which attracts
penalties under the law. Consequently the A.G. has appointed prosecutors for them. In R v Francis Kinuthia Nderu,
Cr. Case No . 2082 of 1988 , Kisumu Municipality prosecuted the accused on a charge of failing to abate a nuisance,
namely a discharge of toxic waste from a tannery.
Communication with Government Departments
In the discharge of his prosecutorial duties, the A.G. gives legal advice to various prosecuting agencies within the
Government. The relationship between the A.G. and the department seeking advice is akin to that of advocate-client.
As per section 134 of the Evidence Act, the legal opinion given by the A.G. is privileged. At common law, legal
opinions are immune from discovery, as is the practice in England, from which Kenya’s legal system emanates.

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It is on the above basis that the A.G. rarely gives reasons for mounting or discontinuing a prosecution. The
confidentiality of opinions is based on the notion of public interest, that its disclosure is injurious to that interest. Police
investigation files are confidential and if they relate to matters of national security or the Official Secrets Act , it may
not be in the public interest for the A.G. to disclose reasons for prosecuting or not prosecuting the suspect. In R v D.J.
Aliech Cr. Case No. 520 of 1988 , the accused was tried for sedition (now repealed as an offence) and part of the
trial was held in camera. In other cases, disclosure of police reports and other Government documents may amount to
an offence under the Official Secrets Act .
However, it appears that as regards Government cabinet papers, the general rule is that a court has power to stop an
improper publication obtained in confidence. But before the court issues an injunction barring such publication, it must
be satisfied that there is need for continuing confidentiality. In A.G. v Jonathan Cape Ltd 1976 QB 752 , literary
executors of a deceased British Cabinet Minister had his diary edited for publication and sent it to the secretary of the
Cabinet for his approval before it could be published, which diary contained discussions of cabinet meetings. The
Secretary declined to give his consent and consequently the executor went ahead with the publication. The A.G.
sought an injunction to stop the publication. The court observed that for the A.G. to succeed in restraining the
publication, he had to show that such publication would be breach of confidence and that the public interest required
that such publication be restrained. In denying the A.G. the injunction, the court observed that 10 years had elapsed
since the information was obtained and that it did not involve secrets relating to national security, which required
confidentiality.
The above case clarifies that neither the government nor the individual civil servant has any enforceable right to have
the advice which he gives treated as confidential all the time. As regards British Cabinet Papers, the rule is that they
are confidential for 30 years, after which they are liable for publication.
Control of Public Prosecutions
1. This is necessary to ensure that only cases in which there is prima facie evidence go for trial. In a decision
posited before committal proceedings were repealed from statute, the High Court in R v Owako and
Others , 1974 EA 507 , ruled that the purpose of holding a preliminary inquiry in murder cases was to
ascertain whether the evidence was sufficient to warrant the accused’s trial in the High Court.
2. Public interest/ policy also necessitates control of public prosecutions. This factor has to be taken into
account in deciding whether to prosecute in cases arousing public concern and issues such as treason and
misprision of treason. The A.G., after considering the evidence, also considers the effect of mounting or
discontinuing a prosecution in the public interest. If the prosecution of such an offence offends public interest,
the proceedings will be withdrawn. Likewise, if the proceedings are in the public interest, they must be
undertaken. In R v Raila Odinga& 2 Others, Cr. Cs. No. 8 of 1983 , the first two accused were charged
with treason, while the third was charged with misprision of treason. They were committed to stand trial in the
High Court. The proceedings in the High Court were withdrawn before the hearing thanks to consideration of
an element of public interest.
3. Another factor that calls for control is the legal intricacies and technicalities that arise in drawing out
some of the charges, reason being that investigating agencies, including the police, are not manned by
lawyers, hence the need to refer such cases to the A.G.’s office. In R v Gordon Odhiambo-Odhiambo, Cr .
Cs. No. 1 of 1990 , the accused had originally been charged with two offences of theft and grievous bodily
harm involving one complainant, who was his employer. After investigations, it transpired that the offence
allegedly committed was robbery. The two charges were withdrawn and substituted accordingly, reason
being that robbery incorporates theft and personal violence to the complainant.
NB: That the A.G. usually undertakes prosecution of major offences implies that this makes it easy to achieve a
uniform prosecutorial policy.

PROSECUTION CONTROL AGENTS AND THE METHODS OF CONTROL

Office of the Attorney General

1. The Constitution. Control of prosecutions is mainly vested in the office of the A.G., which exercises direct
control. In section 26(3) of the Constitution, the law is that he has power in any case he considers
desirable;
a) to institute and undertake criminal proceedings against any person before any court, other than a
court martial, in respect of an offence alleged to have been committed by that person;
b) to take over and continue any such criminal proceedings that have been instituted or undertaken
by any person or authority; and

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 c) to discontinue at any stage thereof before judgment is delivered, any such criminal proceedings
instituted or undertaken by himself or another person or authority.

2. Nolle Prosequi-
Section 82 of the Code confers on the A.G. unfettered discretion to enter a nolle prosequi at any stage before
judgment is delivered. In R v Nderitu & Others, Cr . App. No. 319 of 1985 , the A.G. entered a nolle prosequi
after the accused had been put on their defence, with the result that they were discharged. They were rearrested
and charged with the same offence. On seeking a constitutional interpretation, arguing that the discharge
amounted to an acquittal, the High Court ruled that under section 82(1), the A.G. is empowered to terminate the
proceedings at any stage before judgment, and that his action is not subject to section 87 of the Code. That the
position would have been different if the mode of withdrawal was with leave of the court, in which event the
accused would have been entitled to an acquittal.
In withdrawal by nolle prosequi, the accused is not entitled to an acquittal even if he had been placed on his
defence. However, the effect of a withdrawal under sections 87(a) and 82 of the Code is to discharge the
accused in respect of charges before the court and be rearrested and charged with the same offence, a point
exemplified in Gachuru & Others v R, 1962 EA 673 .
3. Withdrawal on instruction
Withdrawal of charges on the instruction of the A.G. does not require leave. In R v M.A. Mohamed 1976 KLR
207 , it was held that a withdrawal on the instructions of the A.G. does not need leave of the court, which has no
choice in the matter. In Mwangi Macharia v R 1959 EA 955 , it was ruled that such withdrawal is proper even
after conviction but before sentence is pronounced.
Other than such withdrawal and termination by nolle prosequi, every other withdrawal must be with leave. If the
prosecutor has instructions of the A.G. or his authorised delegates, he does not need leave to exercise the power
of withdrawal.
In Musoke & Another. v Uganda 1974 EA 262 , the State Attorney applied to withdraw the prosecution by
stating that he was acting on the instructions of the DPP. The magistrate rejected the application and acquitted the
accused. The prosecution appealed and the order of acquittal was substituted with that of discharge. The
discharge was confirmed by the Court of Appeal.
The principle enunciated in the above case, that a withdrawal results in a discharge if it is made before the
accused has been called upon to make his defence and results in an acquittal thereafter, is only applicable in
withdrawals with leave of the court. The entry of a nolle prosequi in criminal proceedings before the High Court
discharges the accused from the charge laid against him.
3. Advice to prosecuting agencies
The A.G. exercises direct control over prosecutions in the process of offering advice to prosecuting agencies such
as the police. In Maalim v R 1964 EA 672 , the appellant was convicted of assisting in the concealment of stolen
radios. In the course of the trial, the manager of the radio company testified by referring to a list, which was not
introduced as an exhibit. The defence objected to this evidence and the prosecutor sought adjournment to seek
advice from the State Law Office. On its advice the manager was recalled under section 150 of the Code .
4. A.G.’s written consent
There are offences that cannot be prosecuted without the consent of the A.G. Such offences include the offences
of incest and making of false claims. As espoused in Telenga v R, unless such consent is made, the proceedings
are a nullity
.
5. Taking over from private prosecutor.
Here the A.G. exercises control after applying to the court to take over the private prosecution. Before such
takeover, the private prosecutor is not subject to the express instructions of the A.G.
The role of the A.G. in controlling prosecutions arising out of orders for the arrest of suspects by a commission of
inquiry is a thorny issue. This is because the A.G. is constitutionally not subject to the instructions of anyone in
executing his duties. Such a scenario arose in R v Z.O. Obonyo in which a commission of inquiry ordered for the
arrest and prosecution of the accused for perjury. It appears that in law, when a commission of inquiry orders a
suspect to be prosecuted, they are thereby ordering the A.G. to do so.

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PRIVATE PROSECUTIONS
Introduction in Kenya and its basis
Before the introduction of the Office of the DPP in England, most prosecutions were conducted privately, hence
many acquittals and vexatious litigation. The office was introduced to check the excesses of private prosecution.
However, the right of private prosecution was retained. By virtue of section 3 of the Judicature Act, English
common law and doctrines of equity were introduced in Kenya, thus the office of the DPP and private
prosecutions were introduced in Kenya. Section 26(3)(b) of the Constitution recognises the right of an individual
to institute private prosecution. Section 88(1) of the Code also enables an individual to set in motion the process
of private prosecution. In Richard Kimani v Nathan Kahara , the right of an individual to set in motion the
process of the criminal law was held to be a constitutional safeguard against capricious, corrupt or biased failure
or refusal of the public prosecutor to prosecute criminal offenders.
THE PRIVATE PROSECUTOR
No definition is to be found both ii the constitution and in the Code. Section 171(4) of the Code defines a private
prosecutor for the purposes of awarding costs and compensation in private prosecutions. Section 88 (1) of the
Code authorises the magistrate’s courts to permit any private person to conduct a prosecution. Sections 85,
88(1 ) and 171(4) of the Code indicate that a private prosecutor is one who is not subject to the express
instructions of the A.G., can only prosecute with leave of the court, that in the event of a failed prosecution he may
be liable for costs to the accused, and that the A.G. may take over the prosecution on applying to the court to do
so.
By operation of the law, the private prosecutor is also a state prosecutor. In Riddlesbarger v Robson 1959EA
849 CA ,the court in interpreting section 88(1) of the Code, noted that the Crown is the prosecutor in law and
normally acts through the public prosecutor but a special provision is made in the section to enable the Crown act
through a complainant in cases where the public prosecutor does not act, whereby permission of the magistrate is
required before the complainant can conduct a prosecution.
INSTITUTING A PRIVATE PROSECUTION
Although the right of an individual to prosecute is in the Constitution and is further enhanced by the Code, certain
conditions must be fulfilled before one can be allowed to institute a private prosecution.
1.Refusal or decline to prosecute, either by the A.G. or by the police.
2.Locus standi- the legal right to prosecute
3.Presence of the accused, as regards taking of the plea.

1.REFUSAL OR DECLINE TO PROSECUTE

a) Police: They cannot prosecute all crimes reported to them, even though they conduct majority of the
prosecutions in the subordinate courts. The reason is that some of the complaints reported to them are
minor, such as trespass and assault, which can be dealt with in civil proceedings. In Tobias Onyango v
W.O. Okuoga , the police declined to prosecute the respondent on charges of trespass to land, malicious
damage to property and forcible detainer apparently on the ground that the complaints could be better dealt
with in a civil suit.
b) The Attorney-General: May decline to prosecute some offences for reasons such as insufficient evidence
to warrant a prosecution and public policy. The office may also take a view that the complainant is unreliable.
In Riddlesbarger v Robson (supra), the A.G. declined to prosecute the accused on a charge of obtaining
execution of a document by false pretence. The complainant sought, and was granted, leave to institute a
private prosecution which ended in an acquittal. However, such cases can also end up in a conviction
depending on the evidence.
2. LOCUS STANDI
The general rule is that an intending private prosecutor has to show that he has suffered a wrong or an injury
entitling him to prosecute. The injury should be the reason which drives him to file the prosecution. In Richard
Kimani & Another v Nathan Kahara , the court considered the issue of locus standi at length. The complainants
filed charges in the magistrate’s court applying for permission under the relevant section. Subsequently, the
accused appeared before the chief magistrate and pleaded not guilty to all the charges and sought an
adjournment to raise a preliminary objection. The A.G. appeared as amicus curiae through a state counsel. The
magistrate dismissed all the charges and discharged the accused on the ground that the A.G. has ultimate and
undisputed control over all prosecutions and he had not given consent to this one.

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