COURSE : BACHELOR OF LAWS

MODULE TITLE : CRIMINAL PROCEDURE

MODULE NUMBER : LAW 208MN
FACILITATOR : DR. CHARLES. A. KHAMALA
DATE : 2/10/2019
NAME : DAVID LEMAYIAN SALATON
REG. NO : 18S01ALLB002
Table of Contents
QUESTION ONE: INTRODUCTION...................................................................................................... 4

a) Crime Control Values ........................................................................................................................ 4

b) The Due-process model ...................................................................................................................... 5

c) The ‘rights-based’ approach .............................................................................................................. 6

d)Sanders and Young’s ‘freedom-based’ approach............................................................................. 7

How Have These Models Influenced the Kenyan System? ................................................................. 7

QUESTION TWO: INTRODUCTION .................................................................................................... 8

A. Double Jeopardy ............................................................................................................................. 9

A. ENTRAPMENT ............................................................................................................................ 12

B. INSANITY ..................................................................................................................................... 14

CONCLUSION ..................................................................................................................................... 16

QUESTION THREE: INTRODUCTION .............................................................................................. 17

A. Decision to Charge or Prosecute .................................................................................................. 18

i. The Evidential Test ......................................................................................................................... 19

ii. The Public Interest Test ................................................................................................................. 20

iii.The Threshold Test ........................................................................................................................ 21

B. The Decision not to Prosecute ...................................................................................................... 23

CONCLUSION ..................................................................................................................................... 24

QUESTION FOUR: INTRODUCTION ................................................................................................. 25

A Brief History on Plea Bargaining: How Did It Arise? ................................................................... 25

Justifications for Plea Bargaining ....................................................................................................... 26

Different Approaches to Plea Bargaining ........................................................................................... 27

Charge Bargaining ............................................................................................................................ 27

 Count Bargaining .............................................................................................................................. 27

Sentence Bargaining ......................................................................................................................... 28

Criticisms of Plea Bargaining .............................................................................................................. 28

Advantages and Disadvantages to Various Parties ............................................................................ 29

Plea Bargaining in Kenya ..................................................................................................................... 30

PLEA BARGAIN RULES 2018 ....................................................................................................... 31

CONCLUSION ..................................................................................................................................... 31
QUESTION ONE: INTRODUCTION
Criminal justice is a process, involving a series of steps beginning with a criminal investigation
and ending with the release of a convicted offender from correctional supervision. Rules and
decision making is at the center of this process. A criminal justice system starts as soon as a
crime is reported to the relevant authorities and investigations begin.1 The main components of a
criminal justice system are the police, the courts and the correctional facilities (DeRuyter, 2015).
The three main functions that a criminal justice system should have are accurate identification of
the person responsible, fair adjudication, retribution, deterrence, rehabilitation and restoration.
Unless all three components work hand in hand the whole system will fall. It is these three
components and the above-mentioned functions when done effectively that make a criminal
justice system fit for purpose. Theoretically, there are three models that describe different types
of a criminal justice system. They are: The crime control and due process models, the rights-
based approach and the enhancement of freedom approach
a) Crime Control Values

This model is based on the ‘proposition that the repression of criminal conduct is by far the most
important function to be performed by the criminal process.’2 There were several assertions that
underly and are determinant in the execution of the crime control model.

First Herbert Parker states that police powers should be expanded to make it easier to investigate,
arrest, search, seize, and convict. This is to achieve a remedy to the breakdown of public order
and maintain a standard aspect of human freedom. “If the laws go unenforced, which is to say, if
it is perceived that there is a high percentage of failure to apprehend and convict in the criminal
process, a general disregard for legal controls tends to develop. The claim ultimately is that the
criminal process is a positive guarantor of social freedom.”3 This complements a second aspect
that the repression of crime should be the most important function of criminal justice because
order is a necessary condition for a free society. All this dependent on the efficiency by which
crime is detected, perpetrators are apprehended and brought to book. Herbert explains the

1
Srimurugan, Importing The Concept Of Plea Bargaining Into Malasyia
2
Herbert L. Packer, Two Models of the Criminal Process. Pg. 113
3
Ibid 1. Pg. 113
meaning of efficiency to mean “the system's capacity to apprehend, try, convict, and dispose of a
high proportion of criminal offenders whose offenses become known.”4

Thirdly that criminal justice should concentrate on vindicating victims' rights rather than on
protecting defendants' rights. This is called the presumption of guilt. I t is different to
presumption of guilt but not its opposite. Parker explains: The supposition is that the screening
processes operated by police and prosecutors are reliable indicators of probable guilt. If the
police make an arrest and a prosecutor files criminal charges, the accused should be presumed
guilty because the fact‐finding of police and prosecutors is highly reliable. Any legal loopholes
that curtail the police duties should be terminated.

Finally, the criminal justice process should “operate like an assembly‐line conveyor belt”5,
moving cases swiftly along toward their disposition.

b) The Due-process model

The Due Process Model has the premise that it has a view of informal, non-adjudicative fact-
finding that stresses the possibility of error (Parker, 1968). It was designed to make sure
individuals had their rights portrayed and that they had a fair trial to defend themselves in court.
He describes the due process model as having less faith in the criminal agencies, such as the
police, and believes that among few criminal cases mistakes can happen and additionally, there is
a chance of agencies acting corruptly or dishonestly. It is a model that relies highly on moral
values and that accommodates the human rights impeccably. It is insistent on fairness. The
protection of individual rights and freedoms is of utmost importance and has often be aligned
more with a liberal perspective. It stresses that even the worst of suspected criminals are still
human beings and thus deserve to be treated in a humane way. The aim of the process is at least
as much to protect the factually innocent as it is to convict the factually guilty whereby there’s
the famously known rule of, ‘Better 99 guilty people be acquitted that 1 innocent person be
convicted ‘. An important value of this system is its goal to improve on the quality in which
criminals should be convicted fairly that the quantity of criminals being convicted. The holy grail
of this model is to be keen on thoroughness. What’s more, the powers of the police and any other

4
Herbert L. Packer, The Limits of the Criminal Sanction
5
Ibid 1. Pg. 114
relevant investigating officers are advocated to be cut down. This helps in avoiding coercion and
instances of torture of the suspects in order to get information. In each stage of the criminal
justice chain, the due processes advocates for accountability. Once a crime has been reported to
the police should investigate using a humane way. Fact finding is a delicate process in this mode.
Evidence that is to be used against the suspect should be reliable, admissible and credible.
Illegally obtained evidence would not be accepted by a court of law under this model. On arrest,
the suspect should be aware of his rights fully. Under trial, the process should be fair and
impartial. Nonetheless, during sentencing the judge should be reasonable and non-partisan to the
suspect. If there is no suitable evidence to convict the person then he/she should be freed
immediately. The most modest-seeming but potentially far-reaching mechanism by which this
model implements these antiauthoritarian values is the doctrine of legal guilt. According to this
doctrine, a person is not to be held guilty of a crime merely on a showing that in all probability,
based upon reliable evidence, he did factually what he is said to have done (Parker, 1968).
Instead, he is to be held guilty if and only if these factual determinations are made in
procedurally regular fashion and by authorities acting within competences duly allocated to
them. Finally, Herbert Packer describes this model as an obstacle course whereby any
disorientation in the process before affects the next process eliminating the prospect of the
suspect being convicted (Parker, 1968)

c) The ‘rights-based’ approach

Here we encounter a summary of the goals of the criminal justice system as to be ‘regulating the
processes for bringing suspected offenders to trial to produce accurate determinations’ and
‘ensuring that fundamental rights are protected in those processes’6. A Justice system is to be
evaluated according to the extent to which that system respects the rights of those involved in the
system. It is evident that this approach requires more than simply devising a list of such rights,
since rights may conflict with each other or with other social values. Some rights may also seem
to be more important, or weightier, than others. While this might be true, the writers make it
known that they are not for ‘balancing process in which some rights can be traded off against

6
Ashworth, A and Redmayne, M, The Criminal Process. Pg. 55
others’7. What they advocate is ‘carefully structured reasoning in order to justify interference
with rights.’

d)Sanders and Young’s ‘freedom-based’ approach

Sanders and Young propose an alternative framework that identify the key aims as follows:
convicting the guilty, protecting the innocent from wrongful conviction, protecting victims,
maintaining human rights, the protection of everyone (innocent and guilty) from arbitrary or
oppressive treatment, maintaining order, securing public confidence in, and co-operation with,
policing and prosecution; pursuing these goals efficiently and effectively without
disproportionate cost and consequent harm to other public services. They note that people would
disagree with them, but people will differ on their relative priority.
They take as their starting point in devising a way to critique criminal justice the premise that the
primary purpose of the system is ‘to protect and enhance freedom’. hey ‘see none of these
objectives as goals in themselves’ but rather as ‘means to achieving the overriding goal of
freedom’; allocating priority to conflicting goals is then achieved by prioritizing ‘the goal that is
likely to enhance freedom the most’. this approach be mis-used, they are at pains to emphasize
that they ‘reject outright’ the simplistic utilitarian approach whereby ‘the freedom of the majority

How Have These Models Influenced the Kenyan System?

Kenya’s system is heavily influenced by Herbert Packer’s Due Process model. It lays a lot of
emphasis in protecting the innocent and upholds the widely accepted principle of presumption of
innocence until proof of guilt is submitted. Kenya has been praised and hailed the world over for
having a robust bill of rights and in this regard, is seen to conform to the ‘Rights-based’ approach
in a way.

7
Theoretical perspectives in criminal litigation
QUESTION TWO: INTRODUCTION
It is imperative that before distinguishing between non-exculpatory from exculpatory defenses,
we get a comprehensive understanding of what each defense entails. Eric Colvin*8 opines that
the term 'exculpatory defenses' is here used to describe those general defenses which negative
criminal culpability despite the presence of the definitional elements of an offence. Culpability
may be negatived because the actus reus occurred in a special context, as in defenses like self-
defense or duress. Alternatively, it may be negatived because of mental impairment, as where an
incapacity to know that conduct is wrong grounds an insanity.9

We can infer therefore that exculpatory defenses admit wrongdoing on the part of the accused
but have a reasonable basis for argument that the crime was ‘out of their control’. The most
common defenses in common law jurisdictions certainly seem to be inclined to this manner of
thought. Self-defense arguments are almost always hinged on an insistence by the accused that
had they not acted, they would have died. It was ‘out of their control’. An insane person will on
the other hand, through counsel, argue that they had no capacity to fathom the grievous crime
they committed. Again, an allusion to the circumstances being ‘out of their control’ is made.
These defenses seek to exonerate an accused from all guilt despite the unchallenged fact that
they committed a crime.

Paul Robinson wrote of non-exculpatory defenses thus,

“These are defenses like double jeopardy and diplomatic immunity that bar actors from being
tried for reasons that are independent of whether or not they engaged in the blameworthy
conduct with which they are charged.”10 This is despite the fact that the accused might well be
guilty of the crime that they are accused of committing.

8
* Professor of Law, Bond University, Queensland
9
(Colvin, Autumn, 1990) Eric Colvin Exculpatory Defenses in Criminal Law, Oxford Journal of Legal
Studies, Vol. 10, No. 3 (Autumn, 1990), pp. 381-407
10
Paul Robinson, Structure and Function in Criminal Law 71-77.
Non-exculpatory defenses are those that seek to stop the accused from being tried on any other
grounds other than those alleged by the plaintiffs11. A good example to illustrate this is the
widely known OJ Simpson case. Mr. Orenthal James Simpson was accused of murdering his
wife and one of the prosecution’s key arguments was that the accused had a history of domestic
violence involving his murdered wife, to which the defense team beautifully responded that Mr.
Simpson was not on trial for domestic violence, but for murder.

In his vast writings, Paul Robinson suggests that exculpatory and non-exculpatory defenses
encompass the same defenses12, i.e. Double Jeopardy, Insanity and Entrapment etc. The key
difference then becomes not the type of defense, but the manner in which it is being pleaded.
Under exculpatory defenses, the accused will deny engaging in behavior that is blameworthy and
if he engaged in it, he did so because it was the lesser of two evils and, hence, justified. Under a
non-exculpatory defense, the accused might be guilty of wrongdoing but cannot be put on trial
for it, subject to his specific defense, e.g. Diplomatic immunity. 13 Both defenses are favorable to
the defendant in a criminal trial and exonerates or tends to exonerate the defendant of guilt.

The next part of this essay will examine the different defenses that exist under both exculpatory
and non-exculpatory defenses and how they are applied in Kenyan courts.

A. Double Jeopardy

“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.”14

11
Peter Westen, An attitudinal theory of excuse. (2010)
12
Paul H. Robinson, Matthew Kussmaul, Ilya Rudyak, The American Criminal Code: General Defenses.
University of Pennsylvania Law School Penn Law: Legal Scholarship Repository Faculty Scholarship
(2015)
13
Supra note 4.
14
Patrick Kiage, Essentials of Criminal Procedure in Kenya, (Nairobi: Kenya, Law Africa Publishing,
2010), 169
 This defense is highly regarded to the extent that is a human right under the United States
Constitution15. It can therefore be described as a constitutional protection. One that aims to
protect the citizens of a state from any sort of harassment from the government.

The doctrines of autrefois acquit and autrefois convict state that no-one may be put in peril twice
for the same offence. Accordingly, if the accused has previously been acquitted or convicted (or
could, by an alternative verdict, have been convicted) of the same offence as that with which he
or she is now charged, a plea of autrefois will bar the prosecution from moving forward with the
case. However, in the UK, there are three exceptions to this rule;

i. prosecution appeal;
ii. retrial following appeal against conviction;
iii. tainted acquittal16

These exceptions will not be discussed in detail but rather highlighted to illustrate how the UK
has decided to approach this issue of double jeopardy, contrary to the United States that firmly
believes that it is a defense invoked to protect a citizen at the pretrial stage.

Meanwhile, in in the case of Nicholas Kipsigei Ngetich & 6 others v Republic17, the
learned judge observed in his determination that;

“There can be no doubt that an accused person ought not to be tried a second time
regarding an offence for which he has previously been acquitted or convicted. The legal
maxim “nemo debet bis vexari pro ura et eadem causa” a latin phrase which literally
means “No-one shall be tried or punished twice regarding the same event”. This is the
legal protection against “double jeopardy” which gives right to the defense of ‘autrefois
convict’ or ‘autrefois acquit’.

15
United States Constitution, 5th Amendment; No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising
in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor
shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be
compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or
property, without due process of law; nor shall private property be taken for public use, without just
compensation.
16
The Law Commission Consultation Paper No 15, Double Jeopardy, (London: England, 2001), 9.
Retrieved from http://www.lawcom.gov.uk/app/uploads/2015/04/CP156.pdf
17
[2016] eKLR
 Similarly, Section 50(2)(a) of the Constitution provides

“50(2) Every accused person has the right to a fair trial which includes the right –

(a) Not to be tried for an offence in respect of an act or omission for which the accused
person has previously been either acquitted or convicted.”

The reasoning behind this principle is quite clear – there must be finality in legal
processes. The accused person must be protected from the prejudice he would suffer by
going through a second trial after the State has seen his entire defense and to protect
citizens from undue oppression by the State”

This is reiterated by Section 138 of the Criminal Procedure Code which states that;

A person who has been once tried by a court of competent jurisdiction for an offence and
convicted or acquitted of that offence shall, while the conviction or acquittal has not been
reversed or set aside, not be liable to be tried again on the same facts for the same
offence.

The attitude displayed by the Kenyan courts towards double jeopardy mirrors that of the United
States Constitution yet operates contrary in terms of context and application to the English
Courts. Whereas the former, embraces the civil law doctrine of res judicata, that there must be
an end to litigation, the latter seems to advocate for the fact that justice must seem to be done,
regardless of the accused’s predicament. The perspective they possess is that the State has a
mandate to prosecute each crime without remorse or concern for the charges. On the contrary,
the other perspective is that, it is irrelevant to pursue a criminal even after they have already been
charged for a similar, or rather, the same crime, as it will simply amount to bullying or
oppressing the individual.
 A. ENTRAPMENT

“When an officer of the law induces an otherwise innocent person to commit a crime so that the
individual will be punished, the accused can raise the defense of entrapment. Notice the two key
elements of entrapment-inducement of a person by a law enforcement officer.”18

This is definition offered by Chamelin and Thomas firmly points out the scope of entrapment as
it loosely alludes to ‘trapping’ in a literal sense through the deliberate efforts of, say for example,
a police man or an investigation officer working on behalf of the government. This means
therefore that the accused person did not intend to commit a crime had it not been for the actions
of the law enforcement official.

Entrapment is therefore firmly rooted in respect for due process in criminal procedure
thus its admissibility as a defense. To shed more light on this, the New York Court of Appeals
adopted a four-tier criterion to establish whether entrapment has occurred in a given situation;

i. Did the police manufacture a crime, or were they merely involved in ongoing
criminal activity?
ii. Did the police engage in criminal or improper conduct repugnant to a sense of
justice?
iii. Was the defendant reluctant to commit the crime, yet that reluctance was overcome
by:
a. Humanitarian appeals?
b. Temptation or exorbitant gain?
c. Persistent solicitation?
iv. Were the police solely motivated by a desire to convict, with no thought of preventing
further crime or protecting the public?19

The Court nonetheless was of the opinion, that this was not a criterion broad enough to
engage entrapment yet again these factors are reasonably sufficient to the same effect. What is
clear from this is that the accused will be held guilty for their action but how can a government

18
Neil Chamelin and Andrew Thomas, Essentials of Criminal Law, 10th Edition (Columbus: Ohio,
Prentice Hall, 2009), 78
19
People v Isaacson, 44 N.Y.2d 511 (N.Y. Ct. App. 1978)
that compels or induces crime be the same government that punishes that same compulsion? That
undoubtedly amounts to double standards. Such a criterion as mentioned above, was probably
enacted to prevent the police from forcing, pressuring, persuading or influencing a person to
commit a crime merely for the purpose of once more punishing the same individual.20 This
defense prevents any sort of arbitrary power being exercised by the police or the prosecution in
the execution of their responsibilities.

From a much more domestic perspective, entrapment can be defined based on the case of
Mohamed Koriow Nur vs Attorney General21in which the court held that;

“Entrapment occurs when;

(a) the authorities provide a person with an opportunity to commit an offence without
acting on a reasonable suspicion that this person is already engage in criminal activity or
pursuant to a bona fide inquiry, and;

(b) although having such a reasonable suspicion or acting in the course of a bona fide
inquiry, they go beyond providing an opportunity and include the commission of an
offence ……”

Entrapment therefore as a defense can clearly be seen to be preventing state-created crimes and
also to ensure that law enforcement officials follow the due process when investigating and
prosecuting individuals. Within Kenya, it can clearly be concluded that entrapment is an injustice
to the accused and even if the accused is guilty, it infringes upon fundamental human rights and
freedoms that are laid out in the constitution. The English House of Lords summed up the
defense of entrapment vis-à-vis acceptable police conduct in the case of R v Lossey22 in which it
was held that;

“As already noted, the judicial response to entrapment is based on the need to uphold the
rule of law. A defendant is excused, not because he is less culpable, although he may be,
but because the police have behaved improperly. Police conduct which brings about, to
use the catch-phrase, state-created crime is unacceptable and improper. To prosecute in

20
Op cit, 79
21
[2011] eKLR
22
[2001] UKHL
 such circumstances would be an affront to the public conscience, to borrow the language
of Lord Steyn in R v Latif [1996] 1 WLR 104, 112. In a very broad sense of the word,
such a prosecution would not be fair.”

B. INSANITY

Insanity may emerge as a defense during trial and also as an exculpatory defense before trial.
When it emerges as an exculpatory defense before the commencement of trial, then the burden of
proof will rest upon the accused to substantiate his claim as was held in the case of C N M v
Republic23;

“…that where an accused raises the defense of insanity, the burden of proving insanity
rests with the accused, because a man is presumed to be sane and accountable for his
actions until the contrary is shown. But while this burden rests with him, it is not such a
heavy one as rests on the prosecution, and indeed after considering the evidence it is to
be decided on the balance of probability, whether it seems more likely that due to mental
disease the accused did not know what he was doing at the material time, or that what he
was doing was wrong…”

Nonetheless, insanity as an exculpatory defense raises the question as to whether it exonerates

the defendant based on the action or simply exonerates the accused from attending trial.
According to Lisa Storm;

“The insanity defense is different from mental competence to stand trial. The insanity
defense pertains to the defendant’s mental state when he or she commits the crime. If the
insanity defense is successful, it exonerates the defendant from guilt. Mental competence
to stand trial is analyzed at the time the trial is to take place. If the defendant is mentally
incompetent to stand trial, the trial is delayed until the defendant regains competency”24

23
[1985] eKLR
24
Lisa Storm, Criminal Law, (Minnesota: USA, Minnesota Libraries Publishing, 2015), 201
 In Porter v. McCollum25, the Supreme Court of the United States unanimously reversed
the death sentence imposed on George Porter, a decorated Korean War veteran who returned
from combat “a traumatized, changed man” and later killed his former girlfriend and her
boyfriend. The Court concluded that Porter was denied effective assistance of counsel because
his lawyer failed to present mitigating evidence that according to one expert “would ‘easily’
warrant a diagnosis” of PTSD, including testimony that Porter “suffered dreadful nightmares and
would attempt to climb his bedroom walls with knives at night.

The approach offered in the United States is based on the reasoning that an insane
individual can simply not be prosecuted. It recognizes that punishment should be reserved for
accused persons who are rational, reasonable and responsible.26 On the contrary, the UK has
approached this procedural defense in a similar manner to the Kenyan approach that will be
highlighted below. As Ormerod observes;

“The rules governing the plea of insanity derive from the common law, but in trials on
27
indictment the procedure for dealing with the plea has been regulated by statute; the
unamended common law operates in magistrates’ courts. A successful plea of insanity at
a trial on indictment formerly resulted in mandatory order that the accused be admitted
to a special hospital where they might be detained indefinitely.”

This begs the question as to how this is similar to the Kenyan criminal procedural approach to
the defense of insanity. Section 166 (1) of the Criminal Procedure Code states as follows;

Defense of lunacy adduced at trial

(1) Where an act or omission is charged against a person as an offence, and it is given in
evidence on the trial of that person for that offence that he was insane so as not to be
responsible for his acts or omissions at the time when the act was done or the
omission made, then if it appears to the court before which the person is tried that he
did the act or made the omission charged but was insane at the time he did or made it,

25
558 U.S. 30, 30 (2009) (per curia)
26
David Ormerod, Smith and Hogan’s Criminal Law, 12th edition (New York: USA, Oxford University
Press Inc. 2011), 287
27
Ibid, 294
 the court shall make a special finding to the effect that the accused was guilty of the
act or omission charged but was insane when he did the act or made the omission.

Subsection 2 to 7 of the aforementioned section highlight the fact that a report may be made to
the President based on the special finding in order for the President to consider the accused’s
discharge or detention.

Based on this comparative analysis of insanity, it is clear that this exculpatory

defense was probably admitted in order to be fair to the accused even if they had
committed the crime. The accused may definitely be guilty, but that guilt may be imputed
to factors that they had no control over whatever the circumstance thus the need to ensure
that law enforcement officials do not behave like machines that prosecute and investigate
devoid of human reasoning. An accused may completely lack the intention to commit a
crime yet end up being charged without a subjective consideration of the individual’s
state of mind. This is because their state of mind does not reflect that of the standard of
the reasonable man.

CONCLUSION
The primary difference between exculpatory and non-exculpatory crimes is the admission
of guilt. Whereas under an exculpatory defense the accused will admit wrongdoing but
have a justification, under non exculpatory crimes the accused will admit guilt but protest
being put on trial for the wrong offense to advance needs of society.
QUESTION THREE: INTRODUCTION
In relation to his prosecutorial discretion, the DPP enjoys a partial immunity from judicial
review. There are circumstances in which a decision to prefer charges, or sometimes not to prefer
charges, can be challenged. But such circumstances are the exception, not the norm.28 The
Kenyan constitution confers upon the Director of Public prosecutions the powers to

(a) institute and undertake criminal proceedings against any person before any court (other
than a court martial) in respect of any offence alleged to have been committed; 29
(b) and to take over and continue any criminal proceedings commenced in any court (other
than a court martial) that have been instituted or undertaken by another person or
authority, with the permission of the person or authority;30
(c) and subject to clause (7) and (8), discontinue at any stage before judgment is delivered
any criminal proceedings instituted by the Director of Public Prosecutions or taken over
by the Director of Public Prosecutions under paragraph (b). 31

However, the ODPP may not discontinue a prosecution without the permission of the court.32
The decision to prosecute is the most problematic role of a prosecutor. Unlike other areas of the
law where it is possible to resort to reported or unreported authorities, there are no such
authorities to guide a prosecutor in reaching a decision as whether to mount a prosecution or
not.33 In practice, the prosecutor’s office is the focal point of an exchange system in which
numerous markets like relationships influence the allocation of justice.34

And it is for precisely this reason that on many occasions, interested persons, principally those
against whom decisions to prosecute have been made, have moved the courts to challenge the
same. There are two main methods of doing so:

28
9th Annual National Prosecutors’ conference Saturday, 24 May 2008 Dublin castle conference Centre
Michael O’Higgins, bl law library ~ reviewing prosecution decisions
29
Kenyan Constitution ¶157 (6, a)
30
Kenyan Constitution ¶157 (6, b)
31
Kenyan Constitution ¶157 (6, c)
32
Kenyan Constitution ¶157 (8)
33
the role and function of prosecution in criminal justice, Jonathan John Mwalili (Officer in Charge of
Prosecutions, Prosecutions Branch, High Court-Nairobi, Kenya.)
34
James A. Inciardi (2002) Criminal Justice [7th Edition] Oxford University Press pp341
a) By way of constitutional reference invoking the High Court’s supervisory, interpretative or
enforcement jurisdictions previously discussed

b) By way of judicial review seeking in the main orders of Certiorari, to quash the decision to
prosecute and of Prohibition to stop the start or continuance of such prosecution.35

Three decisions that have been subject to challenge before the Kenyan courts include:

(a) Decisions to Charge or Prosecute

(b) Decision not to charge or to discontinue a prosecution.
(c) Refusals to give an undertaking not to prosecute.

A. Decision to Charge or Prosecute

The decision to prosecute or to discontinue a prosecution is the most important decision that a
prosecutor makes in the criminal justice process. Indeed, prosecutions that are not well founded
in law or fact, or which do not serve the public interest may unfairly expose citizens to the
anxiety, expense and embarrassment of a trial while the failure to effectively prosecute guilty
parties can directly impact public safety.36 Until recently, Kenya did not have guidelines on the
Decision to Charge. However, the newly appointed Director of Public Prosecutions, Mr. Noordin
Haji formed a task force to develop minimum standards for charging suspects. The task force
was tasked to prepare and submit its report to the Director of Public Prosecutions together with
its recommendations within 30 days from the date of its appointment.37 The team , among other
things, reviewed national prosecution policy and other prosecutorial guidelines to develop
minimum standards on the decision to charge, develop guidelines on alternatives to prosecution
and standard guidelines on preparation of case files. It also developed guidelines on the
operationalization of central intake of cases, guidelines on review of prosecutorial decision and
develop Office of the DPP charge sheet formats and information. Members of the task force
include all deputy directors of public prosecutions, senior assistant director of public

35
Patrick Kiage, (2010) Essentials of Criminal Procedure in Kenya, [ 3rd Edition] LawAfrica Publishing
(K) Ltd.
36
Ibid
37
Kenya Gazette, Vol.CXX-No.105, Gazette Notice no. 8902, Page: 3054
prosecutions and head of Supreme Court and Court of Appeal. The senior assistant director of
public prosecutions of the human rights and judicial review division also sat on the task force.
Others are Law Society of Kenya, the police, Directorate of Criminal Investigations, Ethics and
Anti-Corruption Commission, the Attorney General, the Judiciary, Independent Policing and
Oversight Authority and Kenya National Commission on Human Rights.

Before these new draft guidelines, the decision to prosecute was largely left to the prosecutor to
decide upon. The prosecutor was required to apply his mind in deciding whether or not to
prosecute. 38In this regard, two principle tests are to be applied, namely39:

1. The Evidential Test

2. The Public Interest Test

i. The Evidential Test

This is the most critical test40. The prosecutor must read the complaint, the witness statements
recorded, the documentary evidence and determine whether or not there is enough evidence to
support a credible prosecution. He must be satisfied that there is a realistic prospect of
conviction. Paragraph 4 (b)(2), of the National prosecution policy formulated by the DPP
pursuant to section 5(1)(c) of the ODPP Act provides; “the Evidence test- public prosecutors in
applying the evidential test should objectively assess the totality of the evidence both for and
against the suspect and satisfy themselves that it establishes a realistic prospect of conviction. In
other words, public prosecutors should ask themselves; would an impartial tribunal convict on
the basis of the evidence available’’ A prosecutor must keep his mind steady to two principles;

a) Admissibility of the evidence

b) Reliability of the witnesses.
Patrick Kiage writes in his book Essentials of Criminal Procedure in Kenya, that if the
prosecutor is not satisfied that the evidence available is sufficient to support a prosecution, and if
there is no real likelihood that such evidence as is required will be available before close of the
prosecution case and once internal review within the Department of Public Prosecutions has been

38
Supra n.8
39
Section 4 of ODDP’s Act no. 2 of 2013
40
Ibid
conducted, the prosecution ought not to be instituted or if already instituted, ought to be halted
forthwith and the suspect discharged without further ado.41
ii. The Public Interest Test42

If the evidence submitted is not enough, prosecution is still not inevitable. In assessing the public
interest, the prosecutor must ponder and finely balance

several relevant considerations falling under three general rubrics namely

the nature and seriousness of the offence, the interest of the victim and the broader
community and the circumstances of the offender. In particular, he has to
consider:
i. Whether a possible conviction will result in a significant sentence
reflecting parliament’s assessment of the gravity of the offence;
ii. Whether the offence committed involved offensive weapons, actual violence or
a breach of the peace;
iii. Whether the offence was against a law enforcement officer, public servant or a
provider of essential services e.g. a doctor, nurse or fireman;
iv. Whether the suspect holds a position of trust or authority so that failing to
prosecute him will set a bad precedent;
v. Whether the suspect is a king pin leader or organizer of crime;
vi. Whether the victim was a child, a person with disability or one vulnerable on
account of age or mental capacity;
vii. Whether the offence was motivated by discrimination or contempt against the
victim or a class to which he belongs;
viii. Whether the suspect is a habitual offender that should not be left scot-free;
ix. Whether the offence is a technical one committed on the basis of ignorance or
misunderstanding;

41
¶54
42
“The DPP shall have due regard to public interest, promote the interest of justice, apply national values
and principles of good governance, promote the rule of law and only be answerable to the constitution. He
is expected to work diligently without any discrimination, abuse of power/office and free from any
direction, control or influence from any quarters.” Republic v Director Public Prosecutions & another
Exparte Justus Ongera [2019] eKLR ¶ 69
x. Whether the offence is in the circumstances a trivial one that has already been
or can easily be rectified;
xi. Whether the prosecution may merely assist the complainant to gain leverage
against the suspect through the use of the criminal justice system to settle private
issues such as debt collection;
xii. Whether there has been undue and unconscionable delay between the
commission of the offence and the intended prosecution43

The new Draft Guidelines provide for a much wider perceptive on the decision to charge. In
addition to the admissibility of evidence and reliability of witnesses, the guidelines require that
the evidence be relevant, credible and available44. The guidelines also outline additional factors
to be considered when applying the Public Interest Test.
 The status of the victim:
 The suspect’s age at the time of the offence.
 Impact on the community
 Whether prosecution is a proportionate response
 Whether sources of information require protecting

In particular, the guidelines underscore heavily the fact that a case that does not pass the
evidential stage must not proceed, no matter how serious or sensitive it may be. The only
exception to this is where the “Threshold Test” applies.45
iii.The Threshold Test

The guidelines define this test as allowing a prosecutor to charge a suspect on reasonable
suspicion only. It is generally used during the early stages of serious cases. The seriousness or
circumstances of the case must justify the making of an immediate charging decision. There
must be substantial grounds to object to bail. Consequently, application of the Threshold Test is

43
Supra n.8
44
The General Prosecution Guidelines On the Decision to Charge 2019, ¶19
45
Ibid ¶20
potentially a grave infringement on the liberty of an individual and must be approached with
caution. 46. There are five conditions to be adhered to before applying the threshold test.

a) There are reasonable grounds to believe that the suspect has committed the offence.
b) Further evidence can be obtained to provide a realistic prospect of conviction.
c) The seriousness or the circumstances of the case justifies the making of an immediate
charging decision.
d) There are continuing substantial grounds to object to bail and in all the circumstances of
the case it is proper to do so.
e) is it in the public interest to charge the suspect?
Kenyan jurisprudence challenging the prosecutor’s decision to prosecute is certainly fairly big.47
In Samuel Kamau Macharia and Kibe v Attorney General,48it was held that where a
prosecution is instituted for any other purpose than to uphold the legitimate ends of criminal law,
the Court will come out strongly to protect any such accused persons. K.H. Rawal, J. in John
Muruitu Kigwe and another v Republic49 held that the court has inherent power to terminate
proceedings it decides are an abuse of the process and thus protect citizens from malicious

46
Ibid ¶25
47
The following are examples of leading cases on Challenging the Decision to Prosecute.
a) Republic v Pattni (HCCC 229 OF 2003.) - the Court
held that where there is inordinate delay, the Attorney General may lose his right
to prosecute. (AG was custodian of prosecutorial power)
b) Githunguri v Republic, (1985] KLR 34.) - The court held that delay of itself with nothing
more, if sufficiently prolonged, could in some cases be such as to render criminal
proceedings brought long after the events constituting the offence both vexatious
and an abuse.
c) Republic v Peter Kamau Ndambo- Here the learned judge affirmed six situations in which
the Court has power to prevent the prosecution from proceeding with the trial of an accused
person:
i. On motion to quash or demurrer pleaded it is held defective in substance or
form and not amended
ii. Matter in bar is pleaded e.g. autrefois acquit and the plea is tried or confirmed in
favor of the accused
iii. A Nolle prosequi is entered by Attorney General
iv. The indictment discloses an offence which a particular Court has no jurisdiction
to try
v. The prosecution amounts to an abuse of process of the Court and is oppressive
and vexatious that the judge has power to intervene
vi. Death of the accused person
48
High Court Miscellaneous Application No. 356 of 2000.
49
HCCC 223/2000.
prosecutions that may lead to unnecessary infringement and curtailing of their rights. It is my
view that with the draft guidelines now in place, the challenges will subside and that the
prosecutions will be transparent.
B. The Decision not to Prosecute

The decision not to prosecute is challenged from two points. First, when the DPP decides not to
institute charges at all, and seconds, when the DPP enters a Nolle prosequi.

The Director of Public Prosecutions may decide to enter a Nolle prosequi due to
many reasons such as:
a) The insufficiency or inadmissibility of evidence to support the conviction
of the accused50 - this happens when litigation has already begun. The Nolle
removes cases in which the accused indeed may be guilty but the prosecution
is almost certain to lose
b) Plea negotiations51
c) Necessity of screening out trivial cases.
Under the new guidelines, occasionally there are cases where the prosecutor will overturn a decision
not to prosecute or to deal with the case by way of an out-of-court disposal. This will usually be triggered
by further evidence or information that comes to light. These cases include:
• Cases where a further review of the original decision shows that it was wrong and, in order to maintain
confidence in the criminal justice system, prosecution should be brought.
• Cases which are not prosecuted or are stopped because of a lack of evidence but where more significant
evidence is discovered later; and
• Cases involving a death in which a review following the findings of an inquest concludes that a
prosecution should be brought.52
This will hopefully deal with claims of refusals to give an undertaking not to prosecute.

50
Seanoi Parsimei ole Sisina and others v Attorney General Criminal case No. 345 of 2005 High Court
51
Republic v Joseph Kuria Irungu & another [2018] eKLR- In this matter, a suspect, one Mr. Brian
Kasaine, was not charged when he accepted a plea deal and became a star witness for the prosecution.
52
Supra Note 17, ¶30
CONCLUSION

The decision to prosecute has for a long time not had any authority it was anchored on, and the
new guidelines on the decision to charge, 2019 are definitely a welcome relief. The conferment
of prosecutorial powers on the Office of the Director of Prosecutions53 and not the Attorney
General is also bound to give specialization to the office an undoubtedly more efficiency. The
new DPP is already a news maker, with bold arrests54 and charges against members of
government previously thought to have been untouchable. The criminal justice system continues
to be strengthened and only time will tell if the DPP will remain a barking dog or not.

53
ODPP Act of 2013,
Article 157 of the Constitution
54
https://www.businessdailyafrica.com/news/Philomena-Mwilu-to-face-graft-charges-/539546-4732888-
12fpdu4z/index.html accessed on 9/26/2019 at 10:50am.
QUESTION FOUR: INTRODUCTION
Plea bargaining is a new concept in the English criminal law. Due to its adversarial set-up, the
parties or their advocates have no say in matters of sentence which are peculiarly within the
province of the trial court. The court has complete discretion as regards which sentence should
be passed, and the prosecution is not permitted to state that an offence is serious as this is a
matter for the court to decide. It is strange, therefore, to find the existence of plea bargaining in
our criminal law which is not only adversarial in set-up in trials, but also does not allow the
parties or their advocates to enter into bargains with the court. 55 A Plea Agreement is an
agreement set up between the Republic via the Prosecutor and the Accused whereby the accused
agrees to plead guilty to a particular charge in return for some concession from the prosecutor.
This agreement will mean that the accused pleads to one of the charges or to a less serious
charge, or to the original charge in return for a lenient sentence.56

A Brief History on Plea Bargaining: How Did It Arise?

Some of the earliest plea bargains took place in the colonial era during the 1692 Salem witch
trials,57 when accused witches were told that they would live if they confessed but would be
executed if they did not. The Salem magistrates wanted to encourage confessions, and, in an
attempt to uncover more witches, they wanted the confessed witches to testify against others.
Pleading guilty saved many accused witches from execution. Later the Salem witch trials were
used to illustrate one of the strongest arguments against plea bargaining: that the practice
sometimes induces innocent defendants to plead guilty.

There have been other historical examples of what could be labeled plea bargains, including the
confession made by St. Joan of Arc58 in 1431 to avoid being burned at the stake. She was

55
(Mwalili, 2010, pp. 227-228)
56
(Moriasi, 2018)
57
The Salem witch trials were a series of hearings and prosecutions of people accused
of witchcraft in colonial Massachusetts between February 1692 and May 1693. More than 200 people
were accused, 19 of whom were found guilty and executed by hanging (14 women and 5 men). One other
man, Giles Corey, was crushed to death for refusing to plead, and at least five people died in jail. It was
the deadliest witch hunt in the history of colonial North America.
58
is considered a heroine of France for her role during the Lancastrian phase of the Hundred Years' War,
and was canonized as a Roman Catholic saint. On 23 May 1430, she was capturedat Compiègne by
the Burgundian faction, a group of French nobles allied with the English. She was later handed over to the
ultimately executed after she recanted her confession. Fast forward to 2019 and over the last two
decades, plea bargaining has spread beyond the countries where it originated—the United States
and other common law jurisdictions—and has become a global phenomenon. 59

Plea bargaining holds two important advantages that help explain its dominance in common law
systems and its recent spread to new jurisdictions. First, it conserves resources by allowing the
parties to negotiate the outcome of a criminal case and eliminating the need for a full
trial.Second, in complex, multi-defendant cases, it helps prosecutors obtain critical insider
information about criminal networks.As crime becomes more sophisticated and transnational,
and as it taxes more of the criminal justice system’s resources, plea bargaining is increasingly
seen as a tool for efficient and successful prosecutions.60

Justifications for Plea Bargaining

The primary justifications include the following:

 Courts are overcrowded; courts would be overwhelmed and forced to shut down.

 Prosecutors' caseloads are also overloaded; fewer trials means that the prosecutor can
more effectively prosecute the most serious cases.

 Defendants save time and money by not having to defend themselves at trial.

These primary justifications all provide benefits to the respective players: the court, the
prosecutor and the defendant, but don't inherently offer any benefit to the public or take any steps
towards a truly just outcome. For this -- and other moral, ethical and constitutional reasons --
many in the legal field have openly challenged the plea-bargaining system.61

English and put on trial by the pro-English bishop Pierre Cauchon on a variety of charges.After Cauchon
declared her guilty, she was burned at the stake on 30 May 1431, dying at about nineteen years of age. In
1456, an inquisitorial court authorized by Pope Callixtus III examined the trial, debunked the charges
against her, pronounced her innocent, and declared her a martyr.
59
Jenia Iontcheva Turner, Plea Bargaining, in INTERNATIONAL CRIMINAL PROCEDURE (Fausto
Pocar& Linda Carter eds., 2013)
60
JeniaIontchevaTurner,Plea Bargaining and International Criminal Justice
61
https://criminal.findlaw.com/criminal-procedure/plea-bargains-in-depth accessed on 9/26/2019 at 2:01PM
Different Approaches to Plea Bargaining

There are three types of plea bargaining available to defendants today.

The three forms of plea bargaining are:

 Charge Bargaining: This is used when a defendant pleads guilty to a less serious crime
than the one originally imposed

 Count Bargaining: This is used when the defendant pleads guilty to a fewer number of
the charges.

 Sentence Bargaining: This is used when the defendant pleads guilty knowing what
sentence will be given.

Charge Bargaining

Charge bargaining is referred to in some instances as charge reduction. The prosecuting

attorney's decision62 to reduce a police charge from a felony to a misdemeanor, and thereby
transfer the case from felony processing, has important consequences for the suspect. One
obvious ramification of such a reduction is the avoidance of substantially more severe
punishment upon conviction. In addition, there are important social and economic consequences
of such charge reductions.63

Count Bargaining

Many consider count bargaining to fall under charge bargaining. Here, the defendant pleads to
only one or more of the original charges, and the prosecution drops the rest.64

62
Texas A&M University, Department of Sociology, College Station, Texas 77843-4351.
63
Celesta A. Albonetti ,Charge Reduction: An Analysis of Prosecutorial Discretion in Burglary and
Robbery Cases
64
Micah Schwartzbach, What Are the Different Kinds of Plea Bargaining?
Sentence Bargaining

The defendant takes a guilty or "no contest" plea after the sides agree what sentence the
prosecution will recommend.65

Criticisms of Plea Bargaining

Plea negotiation has been a controversial subject among members of the judiciary, the practicing
bar, law enforcement agencies and the academic community. The primary criticism of the
practice is that it subverts many of the values of the criminal justice system, such as those
entrenched in the Criminal Procedure Code and the Kenyan Constitution by allowing the
circumvention of the rigorous standards of due process and proof imposed during criminal
trials. The process has been criticized as being, or appearing to be, an irrational, unfair and
secretive practice that facilitates the manipulation of the system and the compromise of
fundamental principles. Another criticism of the concept of plea bargaining is that it allows
offenders to receive lenient sentences. The concern about this result is that the practice
undermines the deterrent effect of criminal sanctions and perpetuates the image that offenders
can evade the law, provided they are willing to bargain. This concern is exacerbated by the
significant differences that may sometimes exist between the sentences imposed after guilty
pleas and those imposed after trials. The most serious concern with the plea-bargaining process
relates to the possibility that an accused that is in fact innocent will be induced to plead guilty.
While it is a requirement of law that an accused admit his guilt before a court accepts a
plea, other pressures may frustrate this principle. Every person charged with a criminal offence
has the constitutionally protected right to a legal counsel under the Kenyan Constitution66. The
duty of defence counsel in a criminal proceeding is to protect the client as far as possible from
being convicted except by a court of competent jurisdiction and upon legal evidence sufficient to
support a conviction for the offence with which the client is charged. But in spite of this duty, the
possibility exists that an accused will be pressured by his counsel to plead guilty to a crime, even

65
Ibid

66
Art. 50(2) g
though he may be factually or legally not guilty. Some accused are vulnerable and often rely
heavily on the advice of their lawyer. Defence counsel is obligated to take instructions from his
client, but this obligation is not always observed. In some cases, defence counsel may make all
the decisions and compel a client to act in a manner that is inconsistent with the intentions of the
latter. There may also be economic demands on the defence counsel to be financially efficient in
order to survive professionally. In that perspective, it is easier and more lucrative to plead a high
volume of clients guilty than it is to litigate every case. Furthermore, a great deal of a defence
counsel's professional success depends on the working relationships established with the police,
prosecutors and judges. Accordingly, defence counsel may sometimes be inclined to improperly
balance his own personal interests against the best interests of his client. Pleading an innocent
client guilty in order to maintain good relations with state officials, although unethical, may be a
sacrifice that some defence counsels are willing to make.

Advantages and Disadvantages to Various Parties

Prosecutors benefit from plea bargaining because it enables them to secure high conviction rates
while avoiding the expense, uncertainty, and opportunity costs of trials. By obtaining guilty
pleas, prosecutors can pursue more cases, potentially resulting in greater aggregate deterrent or
incapacitative effects with a finite amount of resources.67

Defendants may also benefit from plea bargaining, especially if they are factually guilty. Indeed,
it is the presumption of factual guilt in cases that are not quickly dismissed that drives the
process of negotiation. For the defendant, the presumption of guilt focuses the negotiation on the
type and severity of the sentence. A defendant's decision to plead guilty may be rational if the
sentence he receives by pleading guilty is implicitly based on both the probability that he would
be convicted at trial and the likely sentence if convicted.68

A bargain has the obvious advantages of certainty and reduction of risk. The defendant avoids
the risk that:

67
Easterbrook, Criminal Procedure as a Market System, 12 J. LEG. STUD. 289, 289-332 (1983).
68
Douglas A. Smith, Plea Bargaining Controversy, The, 77 J. Crim. L. & Criminology 949 (1986)
  a trial will uncover evidence that is even more damning (resulting in the possibility of
added, harsher charges)

 the jury will find him guilty, and

 The judge will "throw the book" at him.69

A defendant who pleads guilty must admit guilt. This person loses the chance to convince the
trier of fact, be it a judge or jury, of his lack of guilt. The most seasoned trial attorneys, be they
prosecutors or defense attorneys, will be hesitant to tell you that a case is a slam-dunk for
conviction. Juries are unpredictable, as are witnesses.

Prosecutors lose a bit, too, when they bargain a case. Victims and the public may be angered at a
settlement for a crime they think deserves the full force of the prosecutor’s efforts. And when the
deal does not include a specified, agreed-upon sentence, the prosecutor may end up unpleasantly
surprised when the judge hands down a lenient punishment.

The American Bar Association's Standards for Criminal Justice declared, "The trial judge should
not participate in plea discussions," ' and the ABA's Professional Ethics Committee has ruled, "A
judge should not be a party to advance arrangements for the determination of sentence whether
as a result of a guilty plea or a finding of guilty based on proof.70

Plea Bargaining in Kenya

The Law on plea agreements was introduced into the Criminal Procedure Code by Act No 3 of
2008 through amendment to Section 137 of the Code by adding sections 137(A-O). Other
legislations permitting plea agreements include The Anti Counterfeit Act, Section 34A; The
Customs and Excise Act, Section 214.71

The Law prohibits plea agreements in cases of sexual offences under the Sexual Offences Act,
2006 and offences of genocide, war crimes and crimes against humanity.72

69
Janet Portman, Plea Bargaining Pros and Cons
70
Aba project on standards for criminal justice, standards relating to pleas of guilty § 3.3(a) (1968); see aba project
on standards for criminal justice, standards relating to the function of the trial judge § 4.1(a) (1972)
71Jacob Ondari and Muranga Gitonga Plea Bargaining In Kenya: A Synopsis

72
Ibid
Recently on February 19, 2018 pursuant to section 137 (O) of the Criminal Procedure Code, the
Attorney General gazetted rules that will guide plea bargain procedures between the prosecutor
and the accused person.

A Summary of the above Rules is:

PLEA BARGAIN RULES 2018

The Rules were Gazzetted on the 19th of February 2018. The Rules provide that a plea agreement
may be entered into between a prosecutor and an accused where

1. an accused person has been charged in court; and

2. at any time before the court passes judgment.

The rules also provide that information obtained from an accused during plea negotiations shall
not be used against them during the prosecution of the case if plea negotiations are unsuccessful.
However there exists an exception to this whereby if there is failure of plea negotiation on
account of an act or omission by the accused person, information obtained may be used during
the prosecution of accused person.

CONCLUSION
The Kenyan judiciary is crippled with backlog. Plea bargaining helps dispose of cases faster. In
my opinion, in addition to other methods of Alternative Dispute Resolution, plea bargaining is
the future of the trial process in Kenya.
In addition, the Kenyan prison systems are congested. Sending more people to prison when a
plea deal can keep them out would be beneficial. If a person takes a plea deal, they would help
the prosecution crack down and infiltrate criminal organizations and therefore break the cartel
system in Kenya.

Plea bargaining also helps deter crimes. If a criminal takes a plea deal and works with the police,
his reputation in the “streets” will take a thrashing and he wouldn’t be an attractive accomplice to
crime to his peers.
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