1.

The Supreme Court of Kenya

Introduction

The Supreme Court is a fundamental creature of the Constitution of Kenya. It is the highest court in
Kenya.1 Supreme Court in general refers to the apex of the judicial system.2 It is the Supreme Court
which has the final say, in proper matters before it, to act as the final court.3 The Supreme Court is a
court of last resort and all its decisions are binding to other courts apart from itself4.The makers of the
constitution saw it right, to create a higher court than the court of appeal to ensure that the new
constitution was going to be well guarded. The Supreme Court in essence therefore has a central role in
the protection of the Constitution and in the realization of its fruits so that it may inure to all within its
borders. It is thus the work of the Supreme Court to have a watchful eye over the play of the
Constitution in the fullest sense.5

Establishment

The Supreme Court is established under Article 163 of the Constitution of Kenya. It is the final arbiter
and interpreter of the Constitution.6

Composition of the Court

The court is composed of 7 judges who are referred to as the judges of the Supreme Court. The court
shall be headed by the Chief Justice who shall be the President of the Supreme Court.7 The deputy chief
Justice shall deputise the Chief Justice and be the vice president of the court,8 and five other judges.9

The order of precedence of the judges of the Supreme court is that, The Chief Justice will be the
President and shall have precedence over the other judges, then the deputy Chief Justice shall follow,
the other judges of the Supreme Court shall take precedence among themselves, according to the dates
on which they respectively took office as judges of the Supreme Court. If two or more judges took office
on the same day then precedence among them shall be determined according to the professional
seniority with the most senior taking precedence.10

It is important to note that at some point the Supreme Court may have more than 7 judges as provided
by Article 163 of the Constitution of Kenya. This is by dint of Article 167 (3-4) of the Constitution which
provides that where the Chief Justice’s term of office expires before he retires the chief justice may

1
Khalid Salim, A critique on the general importance rule on appeals to the Supreme Court of Kenya.
<http://www.academia.edu/6534082/A_critique_of_the_General_Public_Importance_Rule_on_appeals_to_the_S
upreme_Court_of_Kenya > accessed 7th March 2016.
2
J.B Ojwang, ‘Supreme Court Of Kenya: Insider’s Perspective on the Emerging Groundwork’ (2016) pg 1.
3
Ibid.
4
Article 163 (7) of the Constitution of Kenya.
5
Raila Odinga v Independent Electoral and Boundaries Commission, Petition No 5 of 2013, para 301.
6
<http://www.judiciary.go.ke/portal/page/supreme-court> accessed 7th March 2016.
7
Article 163 (1) (a) of the Constitution of Kenya.
8
Ibid, (b).
9
Ibid, (c).
10
Supreme Court Act No. 7 of 2011, s (5) (1-4).
continue as a judge of the Supreme Court. A new Chief Justice may then be selected in accordance with
the Constitution even though that appointment may result in there being more than the maximum
number of judges permitted to hold office.11

Finally, the Supreme Court shall be properly constituted for the purposes of its proceedings if it is
composed of five judges. 12 This means therefore where the Supreme Court has four judges holding
office at a time or three judges are not available for whatever reason there is no supreme court.

Jurisdiction

The Constitution of Kenya gives the Supreme Court jurisdiction on matters it can hear. The Supreme
Court shall have:

1. Exclusive original jurisdiction to hear and determine disputes relating to the elections of office of
president.

2. Appellate jurisdiction to hear and determine appeals from the court of appeal as of right in
cases involving the interpretation or application of this Constitution

3. Appellate Jurisdiction to hear and determine appeals from the court of appeal in any other case
in which the Supreme Court, or the Court of Appeal, certifies that a matter of general public
importance is involved.

4. Appellate Jurisdiction to hear and determine appeals from any other court or tribunal as
provided by national legislation.

5. Jurisdiction to give an advisory opinion at the request of the national government, any State
organ, or any county government with respect to any matter concerning county government.

6. Jurisdiction to review a matter certified by the court of appeal as being of public importance.

7. Jurisdiction to determine on validity of a declaration of a state of emergency any extension of a

declaration of a state of emergency and any legislation enacted or other action taken, in
consequence of a declaration of state of emergency.13

Advisory Opinions

The Constitution provides that the Supreme Court may give an advisory opinion at the request of the
national government, any State organ, or any county government with respect to any matter concerning
the county government.14 Any matter that requires an advisory opinion should be related with the
county government.

11
The operative word is may, as the Constitution realizes that the next judge of the supreme court may be
selected from the current Supreme court judges and thus if the immediate former chief justice remains the
number will still be seven.
12
Article 163 (2) of the Constitution of Kenya.
13
Article 58 (5) of the Constitution of Kenya.
14
Article 163 (7) of the Constitution of Kenya.
This was necessitated by the new creation of the county governments by the Constitution and it was
considered right to have a process by which matters arising from the new County governments could be
sorted out. The complication anticipated by the devolution process made it important to have the apex
court give an advisory opinion beside the ordinary judicial mechanism.15

The first matter to come before the Supreme Court seeking to invoke the advisory opinion jurisdiction
was In the Matter of Interim Independent Electoral Commission16 where the date of the first general
election was to be ascertained. Was it a matter concerning the county government so as to invoke the
jurisdiction of the court? The answer was in the affirmative. The court stated that:

“Now on the facts of the instant case, we would hold that election date is a question so central to county
government, as to lie within the jurisdiction of this Court, in relation to the request for an Advisory
Opinion…”17

In the same matter the court went ahead and pronounced an important principle of status with regard
to the enforcement capabilities or weight take

The court held that an advisory opinion may not be capable of enforcement as an ordinary decision
would but it must be treated as an authoritative statement of law. It also added that the opinion sought
must not only guide the organ that sought it but all governmental or public action thereafter. Otherwise
not doing so will render Article 163 (6) of the Constitution an idle provision.18

In the Matter of the Principle of Gender Representation in the National Assembly and the Senate19 the
advisory opinion sought was on two specific questions, most importantly whether the Constitution
required a progressive realization of the enforcement of the one-third gender rule or be implemented
during the general elections scheduled for 4th March 2013? The court with a majority decision favored
for a progressive realization of the one-third gender rule. It provided:

“As Article 81(b) of the Constitution standing as a general principle cannot replace the specific provisions
of Articles 97 and 98, not having ripened into a specific, enforceable right as far as the composition of the
National Assembly and Senate are concerned, it follows – and this is the burden of our Opinion on this
matter – that it cannot be enforced immediately. If the measures contemplated to ensure its
crystallization into an enforceable right are not taken before the elections of 4 March 2013, then it is our
opinion, Article 81(b) will not be applicable to the said elections.

15
J.B Ojwang, ‘Supreme Court Of Kenya: Insider’s Perspective on the Emerging Groundwork’ (2016).
16
Supreme Court Const. Application No. 2 of 2011.
17
Ibid, para 41.
18
Ibid, para 93.
19
Supreme Court Advisory Opinion No. 2 of 2012.
The cases above give a clear outline of the Supreme Court jurisdiction on advisory opinion with matters
that concern the county government.

Presidential Elections

Perhaps one of the most significant jurisdictions given by the Constitution of Kenya to the Supreme
Court is the exclusive original jurisdiction to hear and determine disputes relating to the elections to the
office of President arising under Article 140.

Article 140 provides that a person may file a petition to challenge the election of the President elect
within seven days after declaration of the results of the presidential election. It goes further to provide
that the Supreme Court shall hear and determine the petition and it decision shall be final.

The general election conducted by the Independent Electoral and Boundaries Commission (IEBC)
declared Mr. Uhuru Kenyatta the President elect after garnering 50% plus one votes and 25% of votes
cast in more than half the counties. Three petitions were filed thereafter in the Supreme Court: first
challenging the inclusion of the rejected voted in the total tally on the ground that it distorted the
percentage gotten by the president. The second contested the manner in which the electoral process
was conducted by IEBC. The third contested the declaration of the Presidential-elect and Deputy
Presidential-elect. Both cases were consolidated for hearing. The case of Raila Odinga v Independent
Electoral and Boundaries Commission20 was the one which caught the attention of the nation as it was
pitting the President-elect and the first runners-up of the Presidential election.

The court pronounced that it was well noted that the elections were in no way perfect it posed the
question; did the petitioner prove to the court that the election was so devoid of merit that it did not
reflect the wishes of the people?21

It asserted that it was with this broad test that the election petition was to be decided upon and
whether the presidential election was to be disturbed.22 The court therefore held as follows:

“In summary, the evidence in our opinion, does not disclose any profound irregularity in the management
of the electoral process, nor does it gravely impeach the mode of participation in the electoral process by
any of the candidates who offered himself or herself before the voting public. It is not evident, on the
facts of this case, that the candidate declared as the President-elect had not obtained the basic vote-
threshold justifying his being declared as such.”23

The above case represented the first case before the Supreme Court that invoked Article 163 (3)(a).
With this therefore the Supreme Court upheld the Presidential elections and thus Mr. Uhuru Kenyatta
sworn in as the President of Kenya.

20
Petition No 5 of 2013.
21
Ibid, para 304.
22
Ibid.
23
Ibid, para 306
Declaration of State of Emergency

The Supreme Court has been given the jurisdiction to decide on the validity of state of emergency
declared, any extension of a declaration of state of emergency and any legislation enacted or action
taken in consequence of a declaration of state of emergency.24

Section 30 of the Supreme Court Rules 2012 provides for petitions relating to validity of a state of
emergency. It provides that a person may petition the court for the determination of the validity of
matters relating to a state of emergency within seven days of its declaration by the President or upon its
extension by the National Assembly.

2. COURT OF APPEAL

Brief History

Following the collapse of the East African Court of Appeal in, the Kenyan Court of Appeal was
established by the thirteenth amendment of 1977. Court of Appeal under the old regime had appellate
jurisdiction, the power to uphold or reverse decisions of lower courts and the power to substitute a new
judgement or order a new trial25.

On October 26th 1977, President Jomo Kenyatta swore in two High Court judges, Mr Justice Samuel
William Wako Wambuzi and Mr Justice Eric John Ewan, as Justices of the Court of Appeal26.

In the case of Anarita Karimi Njeru V. The Repulic27, the Court stated that, the one theme that has
remained constant is that as an appellate tribunal, the Court of Appeal has only been able to entertain
such appeals as statute has declared appealable to it. The Court of Appeal has never enjoyed a
supervisory role. This case contained the evolution of the Court of Appeal over time, going as far back as
the dawn of the 20th Century.

The Court of Appeal under the Constitution of Kenya (2010)

Article 164(1) of the Constitution of Kenya (2010) establishes the Court of Appeal28. Though established
in the Constitution, the Court of Appeal is a creature of statute. The basic and traditional roles of the
Court of Appeal are, to hear appeals and to interpret the law29. The Court of Appeal is a superior court
under the Constitution.

Constitution of the Court of Appeal

24
25
B.A Ogot & W.R Ochieng (ed), Decolonisation & Independence in Kenya 1940-93: East African Educational
Publishers (1995).
26
Key Dates in Kenya’s History by Maria Kanini Wambua (Nation Media Library)
<http://www.nation.co.ke/news/Key-dates-in-Kenya-history/-/1056/2108572/-/6j2j2hz/-/index.html> accessed on
15th March.
27
(No 2)(1976-80) 1 KLR 1283.
28
Art 164, Constitution of Kenya 2010.
29
Momanyi Bwonwong’a, Criminal Law in Kenya (East African Publishers Ltd, 1994) pg 23.
Article 164 of the Constitution states that;-

 The Court shall consist of the number of judges, being not fewer than twelve, as may be
prescribed by an Act of Parliament30.

Article 166(4) of the Constitution sets out the qualifications that one has to meet for appointment as a
court of appeal judge which include;-

1. Hold a degree from a recognised University, or are advocates of the High Court of Kenya, or
possess an equivalent qualification in a common-law jurisdiction.

2. Possess at least ten years’ experience as a superior court judge or legal practitioner,
distinguished academic or other experience in other relevant legal field.

3. The candidate can hold any of the above qualification for a period amounting to an aggregate of
ten years31.

For purposes of transparency in the recruitment of judges, the Judicial Service Commission shall
constitute a selection panel consisting of at least five members32.The function of the panel shall be, to
shortlist persons for nomination by the Judicial Service Commission33.

There shall be a president of the Court of Appeal, who shall be elected by the judges of the Court of
Appeal from among themselves34.

 Jurisdiction of the Court of Appeal.

The Court of Appeal has jurisdiction to hear appeals from the High Court and any other court or tribunal
as prescribed by an Act of Parliament35.

The Appellate Jurisdiction Act establishes the jurisdiction and powers of the Court of Appeal. Section 3
of the Act states that;-

1. The Court of Appeal shall have jurisdiction to hear and determine appeals from the High Court
and any other Court prescribed by an Act of parliament in cases in which an appeal lies to the
Court of Appeal under law.

2. For all purposes of and incidental to the hearing and determination of any appeal in the exercise
of the jurisdiction conferred by the Act, the Court of Appeal shall have, in addition to any other
power, authority and jurisdiction conferred by the Act, the power, authority and jurisdiction
vested in the High Court.

3. In the hearing of an appeal in the exercise of the jurisdiction conferred by the Act, the law to be
applied shall be the law applicable to the case in the High Court.36

30
Supra,Note 4 Art 164.
31
Ibid.,Art 166(4).
32
Section 30(1), of the Judicial Service Act, 2011.
33
Ibid,.Section 30(2).
34
Supra, Note 4 Art 164(2).
35
Supra, Note 4 Art 164(3).
36
Section 3, Appellate Jurisdiction Act.
The Court of Appeal has jurisdiction to reverse or vary the decisions of the High Court, with such
directions as may be appropriate, to order a new trial and to make any necessary incidental or
consequential orders including orders as to costs37.

An appeal to the Court of appeal from a subordinate court against a decision of the High Court may be
brought on matters of law only. The Court of Appeal does not hear matters of fact such as the severity
of a sentence. Only when a sentence has been enhanced by the High Court or where the trial court had
no power to pass the sentence, can the Court of

Appeal an appeal against a sentence.

Where the Court of Appeal is of the Opinion that the judgement of the subordinate court or of the first
appellate court, should be set aside or varied on the ground of the wrong decision on a question of law,
it may make any order that the subordinate court or the High Court could have made, it may remit it and
the case together with its judgement to the subordinate or High Court for determination as the Court of
Appeal may think necessary38.

In the case of Onyango v. Republic 39 the Court held that the Court of Appeal has no inherent
jurisdiction and that its jurisdiction is derived from statute.

3. HIGH COURT

High Court Criminal Jurisdiction

i. Establishment And Composition

The high court is established under article 165 of the constitution of Kenya.

The number of judges in the high court as per the constitution of Kenya 2010 shall be as stated in an act
of parliament though the constitution states so, there is no act in place to certify this provision.

Article 165 also states that the high court of Kenya shall be organised and administered in the manner
prescribed by an act of parliament. The act is not yet in place.

The head of high court is known as a principle judge who is elected by judges of the high court from
amongst themselves.

ii. Unlimited original jurisdiction

 The High Court has unlimited original jurisdiction in criminal matters .40

37
Patrick Kiage:Essentials of Criminal Procedure in Kenya (Law Africa Publishing (K) Ltd) pg 13.
38
Francis D.P Situma: Criminal Law in Kenya (Kluwer Law International) pg 110.
39
(1983) e KLR (Criminal Appeal No. 91 of 1983).
40
Art.165 (3) (a) of The Constitution of Kenya, 2010].
  The Constitution does not define either the term ‘jurisdiction’ or the expression ‘unlimited
jurisdiction’. In the case of Paul K. Semogerere & 2 Others –vs- Attorney General,41 Judge
Oder cited Mula on the Code of Civil Procedure as having defined jurisdiction as follows:

‘By jurisdiction is meant authority which a Court has to decide matters that are litigated before it or to
take cognisance of matters presented in a formal way, for its decision. The limits of this authority are
imposed by statute, charter or Commission, under which the Court is constituted and may be exercised
or restricted by the like means. If no restriction or limit is imposed the jurisdiction is unlimited.’

In Kenya the High Court is established by the Constitution and vested with unlimited jurisdiction as
aforesaid.42

Article 165(3) (a) subject to sub-Article (5) of the same Article ousts the jurisdiction of the High Court in
respect of matters -

 reserved for the exclusive jurisdiction of the Supreme Court under the Constitution;
or

 falling within the jurisdiction of courts contemplated in Article 162(2), i.e. relating to
employment and labour relations; and the environment and the use and occupation
of, and title to, land.

iii. Venue of sittings

 For the exercise of its original criminal jurisdiction, the High Court is required to hold its
sittings at such places and on such days as the Chief Justice may direct, subject to the High
Court Registrar ordinarily giving prior notice of all such sittings.43

 The law also empowers the High Court to inquire into and try any offence subject to its
jurisdiction at any place where it has power to hold sittings.44

iv. Power of the High Court to decide venue of trial in cases of doubt

 Ordinarily every criminal offence must be tried by a court within the local limits of whose
jurisdiction it was committed, or within the local limits of whose jurisdiction the accused
was apprehended, or is in custody on a charge for the offence, or has appeared in answer to
summons lawfully issued charging the offence.45

 But it happens at times that by a combination of certain factors, difficulties arise in

determining where an offence should be tried. For instance, when-

 it is uncertain in which of several local areas an offence was committed; or

 an offence is committed partly in one local area and partly in another; or

41
Supreme Court of Uganda Constitutional Appeal No.1 of 2002,pg 225
42
Article 165(1)
43
Section 70 of the Criminal Procedure Code (CPC)].
44
Section 69 of the criminal procedure code
45
Section 71 ibid
  an offence is a continuing one, and continues to be committed in more than one
local areas; or

 an offence consists of several acts done in different local areas,

it may be tried by a court having jurisdiction over any of those local areas.46

 Whenever a doubt arises as to the court by which an offence should be tried, the court
entertaining the doubt may report the circumstances to the High Court for the High Court to
decide by which court the offence shall be inquired into or tried; and the decision of the
High Court shall be final and conclusive, except that it shall be open to an accused to show
that no court in Kenya has jurisdiction in the case.47

v. General power of the High Court to change venue of trials

 If it is made to appear to the High Court-

 that a fair and impartial trial cannot be heard in any criminal court subordinate
thereto; or

 that some question of law of unusual difficulty is likely to arise; or

 that a view of the place in or near which any offence has been committed may be
required for the satisfactory trial of that offence; or

 that an order (for change of venue) will tend to the general convenience of the
parties or witnesses; or

 that such an order is expedient for the ends of justice or is required by any provision
of the CPC,

the High Court may order-

 that an offence be tried by a court not ordinarily empowered but in other respects
competent to try the offence;

 that a particular criminal case or class of cases be transferred from a criminal court
subordinate to its authority to any other criminal court of equal or superior
jurisdiction;

 that an accused person be committed for trial by itself .48

vi. Transfer by the High Court of case from one magistrate to another upon request by an
interested party

46
Section 74 ibid
47
Section 76 ibid
48
Section 81(1) ibid
  There are times when a party interested in criminal proceedings may have cause to want such
proceedings transferred from a particular magistrate to another.

 This is permissible for good cause.49 In such case, the interested party may apply by motion for
the desired transfer.50

 Section 81(3) CPC mandatorily requires the application for transfer to be supported by affidavit,
‘except when the applicant is the Director of Public Prosecutions.

NB:* In the old constitution the A-G had overall control over criminal proceedings, however after the
promulgation of the Constitution of Kenya 2010 the reference to the A-G was replaced with reference to
the Director of Public Prosecutions/ DPP .51

 For guidelines as to the circumstances in which an application by an accused person for transfer
of a case from one magistrate to another may be granted, attention is drawn to Republic -vs-
Hashimu.52 where the High Court of Tanzania while considering Section 80 of the Tanzania CPC
which was similar to Section 81 of the Kenyan CPC, inter alia, held that:

Before a transfer of any trial is granted on the application of an accused person, a clear case must be
made out that the accused person has a reasonable apprehension in his mind that he will not have a fair
and impartial trial before the magistrate from whom he wants the trial transferred.

 The aforesaid guidelines have been applied in Kenya, e.g. by the High Court of Kenya in Makinda
& Another-vs-The Republic .53

a) Mode of trial

i. Charges and Informations

 A Charge means the same thing as an Information, save that the former term is used in
subordinate courts,54 while the latter term is used in the High Court.55

 The Law provides that every Charge or Information must contain a statement of the specific
offence or offences with which the accused person is charged, together with such
particulars as may be necessary for giving reasonable information as to the nature of the
offence charged.56

ii. Arraignment and Plea

49
Section 81(1) ibid
50
Section 81(3) ibid
51
Article 157(6) of the constitution of Kenya 2010
52
[1968] E.A. 656
53
1979] KLR 134.
54
Section 89(4) criminal procedure code
55
Section 274 ibid
56
Section 134 ibid
  To arraign is to begin a criminal trial on indictment by calling the defendant to the bar of the
court by name, reading the indictment to him/her, and asking him/her whether he/she is
guilty or not.57

 In the Kenyan context the accused person to be tried before the High Court upon an
Information-

 must be placed at the bar unfettered, unless the court otherwise orders;

 the Information must be read to him/her by the Registrar or other officer of the
court, and explained if need be by that officer or interpreted by a court interpreter;

 and the accused must be required to plead instantly thereto, unless, where the
accused is entitled to service of a copy of the Information, he/she objects to the
want of service, and the court finds that he/she has not been duly served
therewith.58

 The accused person may plead not guilty, guilty, or guilty subject to a plea agreement.59
Where an accused pleads guilty subject to a plea agreement, the provisions relating to
plea agreements shall apply accordingly.60

 If the accused person pleads not guilty, he/she is deemed to have put himself/herself
upon the country for trial and the court proceeds to try the accused either straightaway
or subsequently.61

 It is open to an accused person to plead-

 that he/she has been previously convicted or acquitted of the same offence;
or

 that he/she has obtained the President’s pardon for his/her offence.62

If either of those pleas are pleaded and denied, the court shall try whether the plea is true or not.63 If
the court finds the said pleas not proved or to be false, the accused shall be required to plead to the
Information.64

 It is also open to the accused person to refuse to plead to an Information (standing mute). If
the accused stands mute of malice, or, neither will nor by reason of infirmity, can answer
directly to the Information-

57
Oxford dictionary of law
58
Section 274 of the criminal procedure code
59
Section 281(1)ibid
60
Section 281(2) ibid
61
Section 278 ibid
62
Section 279 (1)ibid
63
Section 279(2)ibid
64
Section 279 (3) ibid
  The court may order the Registrar or other officer of the court to enter a plea of ‘not
guilty’ on behalf of the accused person.

 If the accused’s refusal to answer is by malice, the entry of a not guilty plea leads to
trial in the normal manner.

 If the accused’s failure to plead appears to be by reason of infirmity, the court shall
proceed to enquire whether the accused is of sound or unsound mind.

 If the court finds the accused to be of sound mind, it shall proceed with his/her trial.

 If the court finds the accused to be of unsound mind and, consequently, incapable
of making his/her defence, the court shall order the trial to be postponed and the
accused to be kept meanwhile in safe custody in such place and manner as it thinks
fit and shall report the case for the order of the President. The President may order
the accused to be confined in a lunatic asylum, prison or other place for safe
custody.65

NB: For further details regarding the procedure in dealing with cases of lunacy/insanity or other
incapacity of an accused person.66Note should also be made of presumption of sanity and as to when
insanity may negate criminal responsibility.67

iii. Case for the Prosecution

 If a criminal case is to proceed to hearing before the High Court, the law provides that the
advocate for the prosecution shall-

 open the case against the accused person and

 call witnesses and adduce evidence in support of the charge.68

 Witnesses for the prosecution shall be subject to cross-examination by the accused or

his/her advocate, and to re-examination by the advocate for the prosecution.69

NB: As to types of examination of witnesses, i.e. examination in-chief, cross-examination and re-
examination.70

 When evidence of witnesses for the prosecution has been concluded and before the court
considers whether or not there is evidence to put the accused on his/her defence, counsel
for the accused quite often submit that there is no case to answer, thereby necessitating a
ruling on the matter. The guiding principle on whether to put the accused on his/her
defence is whether a prima facie case has been made out against him/her.

65
Section 280 ibid
66
Section 162-167 ibid
67
Section 11 and 12of the penal code
68
Section 300 of the criminal procedure code
69
Section 302 ibid
70
Section 145 of the evidence act cap 80 laws of kenya
  It was stated by the then Court of Appeal for Eastern Africa in Ramanlal Trambaklal Bhatt –
vs- R that.71

‘It may not be easy to define what is meant by a “prima facie case”, but at least it must mean one on
which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if
no explanation is offered by the defence.’

 The High Court of Kenya applied the above principle in R. –vs- Wachira72 and elaborated that
if a submission is made that there is no case to answer, the decision should depend not so
much on whether the adjudicating tribunal (if compelled to do so) would at that stage
convict or acquit, but on whether the evidence is such that a reasonable tribunal might
convict, and that:

‘If a reasonable tribunal might convict on the evidence so far laid before it, there is a case to answer.’

 If the court considers there is no evidence that the accused committed the offence, the
court shall, after hearing, if necessary, any arguments the advocate for the prosecution or
defence may desire to submit, record a finding of not guilty.73

 When evidence of witnesses for the prosecution has been concluded and the court
considers there is evidence that the accused committed the offence, the court shall-

 inform the accused of his/her right to address the court, either personally or by
advocate (if any);

 inform the accused of his/her right to give evidence on his/her own behalf or to
make an unsworn statement;

 inform the accused of his/her right to call witnesses in his/her defence;

and in all cases the court-

 shall require the accused or his/her advocate (if any) to state whether it is intended
to call any witnesses as to fact other than the accused himself/herself;

 and upon being informed of the accused’s intention, the judge shall record the
fact.74

 If the accused says he/she does not intend to give evidence or make an unsworn statement,
or to adduce evidence, then the advocate for the prosecution may sum up the case against
the accused; but if the accused says he/she intends to give evidence or make an unsworn
statement, or to adduce evidence, the court shall call upon him/her to enter upon his/her
defence.75

71
1957] E.A. 322
72
1975] E.A. 262
73
Section 306 (1) criminal procedure code
74
Section 306(2) criminal procedure code
75
Section 306 (3) ibid
 iv. Case for the Defence

 If the accused is to enter upon his/her defence-

 the accused or his/her advocate may then open his/her case, stating such facts or
law on which he/she intends to rely, and making such comments as he/she thinks
necessary on the evidence for the prosecution;

 thereafter the accused may give evidence on his/her own behalf and he/she or
his/her advocate may examine his/her witnesses (if any) and after the witnesses’
cross-examination, the accused or his/her advocate may sum up the defence case.76

 If the accused adduces evidence in his/her defence introducing new matter which the
advocate for the prosecution could not by the exercise of reasonable diligence have
foreseen, the court may allow the advocate for the prosecution to adduce evidence in reply
to rebut it.77

 If the accused person, or any of several accused persons, adduces any evidence, the
advocate for the prosecution shall be entitled to reply.78

NB: It should be noted that Section 310 CPC is subject to Section 161 CPC, which is to the effect that
where the Attorney-General or Solicitor-General is appearing personally in a prosecution, he/she has the
right of reply whether the accused adduces any evidence or not. Section 161 CPC was based on the old
Constitution which gave the A-G overall control over criminal proceedings. As recorded earlier, the
overall power over criminal proceedings has now been vested by the 2010 Constitution in the DPP.79

 If the accused says he/she does not intend to give or adduce evidence and the court
considers that there is evidence that he/she committed the offence, the advocate for the
prosecution shall sum up the case against the accused and the court shall then call the
accused personally or by his/her advocate to address the court on his/her own behalf.80

v. Close of Hearing

 When the case on both sides is closed, the judge shall give judgment.81

 If the accused is convicted, the judge shall pass sentence on him/her according to law.82

NB: Note may be made here for information that although the High Court has unlimited original
jurisdiction in criminal matters, the criminal offences which in practice tend to be tried by the High Court

76
Section 307 ibid
77
Section 309 ibid
78
Section 310 ibid
79
Article 157 (6) of the constitution 2010
80
Section 311 of criminal procedure code
81
Section 322(1) ibid
82
Section 322(2) ibid
are the capital offences of murder83 and treason .84 Further note may be made that murder and treason
are not the only capital offences in Kenya. Others are: robbery with violence , 85administration of
unlawful oaths purporting to bind the taker to commit a capital offence86 and attempted robbery with
violence87 but these latter capital offences are tried by subordinate courts.

b) High Court’s Revisionary Jurisdiction

 It is important to note at the outset that The Constitution vests in the High Court supervisory
jurisdiction, inter alia, over subordinate courts.88

 For the aforesaid purposes, The Constitution empowers the High Court to call for the record of
any proceedings before, inter alia, any subordinate court and may make any order or give any
direction it considers appropriate to ensure the fair administration of justice.89

 With particular reference to criminal proceedings, the High Court is empowered to call for and
examine the record of any criminal proceedings before any subordinate court for the purpose of
satisfying itself as to the correctness, legality or propriety of any finding, sentence or order
recorded or passed, and as to the regularity of any proceedings of any such subordinate court.90

 Where the High Court in exercise of its revisionary jurisdiction calls for the record of a
subordinate court pursuant to Section 362 CPC, the High Court may-

 in the case of a conviction, exercise any of the powers conferred on it as a court of

appeal by sections 354, 357 and 358, and may enhance the sentence [see
illustration in the extracts from Kinyanjui’s case at the Annex];

 in the case of any other order other than an order of acquittal, alter or reverse the
order .91

Note should, however, be made of the following-

 that no order should be made under this section to the prejudice of the accused
unless he/she has had the opportunity of being heard either personally or by an
advocate in his/her own defence;

 that the High Court does not have to give the accused a hearing if the order to be
revised relates to failure by the subordinate court to pass sentence it was required
to pass under the written law creating the offence concerned;

83
Section 204 of the penal code
84
Section 40(3)ibid
85
Section 296(2) ibid
86
Section 60 ibid
87
Section 297(2) ibid
88
Article 165(6) of the constitution 2010
89
Article 165(7) ibid
90
Section 362 criminal procedure code
91
Section 364(1) a and b ibid
  that in exercising its revisionary jurisdiction, the High Court shall not inflict greater
punishment for the offence committed than might have been inflicted by the court
which imposed the sentence;

 that the High Court cannot in exercise of its revisionary jurisdiction convert a finding
of acquittal into one of conviction; and

 that when an appeal lies from a finding, sentence or order, and no appeal is
brought, no proceeding by way of revision shall be entertained at the instance of
the party who could have appealed.92

 Unlike is the case with regard to the High Court’s appellate jurisdiction where appeals from
subordinate courts must be heard by two judges of the High Court unless the Chief Justice
directs that they be heard by one Judge, all proceedings before the High Court in its
revisionary jurisdiction may be heard and any judgment or order thereon may be made or
passed by one judge:

Provided that when the court is composed of more than one judge and the court is equally divided in
opinion, the sentence or order of the subordinate court shall be upheld.93

4. Subordinate Courts

Structure of the Magistrates Court

The subordinate courts are established under Article 169 (1) of the Constitution of Kenya 2010. They are
the Magistrates courts, the Kadhis courts, the Court Martial and any other court or local tribunal as may
be established by an Act of Parliament94.All subordinate courts are trial courts in which criminal and civil
cases are filed and determined. They are courts of the first instance or fact finding courts whose findings
are of crucial importance in appellate and revision proceedings95. The Magistrates Courts Act 2015 was
enacted subject to Article 169 (2) of the Constitution of Kenya, 2010. The act was assented to on 15th
December, 2015 and it commenced on 2nd January, 2016.

A magistrate means a chief magistrate, a senior principal magistrate, a principal magistrate, a senior
resident magistrate or a resident magistrate96. Magistrates are appointed by the Judicial Service
Commission and the commission can also receive complaints against, investigate and remove from
office or otherwise discipline registrars, magistrates, other judicial officers and other staff of the
judiciary.97 A magistrate’s court shall have and exercise such jurisdiction and powers in proceedings of a

92
Section 364 ibid
93
Section 366 ibid
94
Art 169 (1), Constitution of Kenya, 2010
95
Bwonwon`ga M (1994), Procedures in Criminal Law in Kenya, pg 32
96
Magistrates Courts Act, 2015
97
Art 172 (1c), Constitution of Kenya, 2010
criminal nature as may be conferred on it by the criminal procedure code or any other written law. The
magistrates court have both criminal and civil jurisdiction.98

A subordinate court of the first class may pass the following sentences in cases where they are
authorized by law; (a) imprisonment for a term not exceeding seven year and (b) a fine not exceeding
twenty thousand shillings99. A subordinate court of the second class may pass the following sentences in
cases where they are authorized by law; (a) imprisonment for a term not exceeding two years and (b) a
fine not exceeding ten thousand shillings100.

Jurisdiction of the Magistrates Court

The Judicial Service Commission may by notice in the Gazette extend the jurisdiction of any particular
magistrate generally or in relation to particular offences triable by a court of a class which may be held
by that magistrate, and a magistrate whose jurisdiction has been so extended may pass sentences thus
authorized in cases where they are authorized by law101. The magistrates courts act 2015 (Sect 7(2))
says, the Chief Justice may from time to time by notice in the Gazette, revise the pecuniary limits of
jurisdiction taking into account inflation and change in prevailing economic conditions. Currently, the
pecuniary jurisdiction of the Chief Magistrate is twenty million, the Senior Principal Magistrate is fifteen
million, the Principal Magistrate is ten million shillings, the senior resident magistrate is seven million
shillings and the Resident Magistrate is five million shillings102.

A Magistrate court has jurisdiction to hear and determine applications for redress of a denial, violation
or infringement of, or threat to, a right or fundamental freedom in the bill of rights. This is subject to the
High Court jurisdiction to determine the question whether a right or fundamental freedom in the bill of
rights has been denied, violated, infringed or threatened103. In relation to the bill of rights; the
magistrate’s courts only hear matters relating to freedom from torture and cruel, inhuman or degrading
treatment and freedom from slavery or servitude. The magistrate’s court is not conferred with
jurisdiction to hear and determine claims for compensation for loss or damage suffered in consequence
of violation, infringement, denial of a right or fundamental freedom in the bill of rights. The Chief Justice
is to make rules for the better exercise of jurisdiction of the magistrate’s courts.104

The magistrate’s courts also play an important part in conducting inquests in respect of sudden deaths
including cases where the deceased persons have committed suicide. The police are under a statutory
duty to report all sudden deaths including deaths in police and prison custody and also fatal road
accidents.105

Section 26 of the Environment and Land Court Act confers upon the Magistrates court jurisdiction to
hear and determine claims relating to; (i) environmental planning and protection, climate issues, land
use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural
resources, (ii) compulsory acquisition of land, land administration and management, public, private and

98
Magistrates Court Act, 2015, Sect 6
99
Criminal Procedure Code, Sect 7(2)
100
Ibid
101
Criminal Procedure Code, Sect 8
102
Magistrates Courts Act, 2015, Sect 7
103
Magistrates Courts Act,2015,2015, Sect 8
104
Ibid
105
Supra note 2
community land and (iii) contracts, chooses in action or other instruments granting any enforceable
interests in land and environment and land generally.106 The Chief Justice may by Gazette notice,
appoint certain magistrates to preside over cases involving environment and land matters of any area in
the country. Appeals on matters from the designated magistrate`s courts shall lie with the Environment
and Land Court.107

Section 29 of the Industrial Court Act confers upon the magistrate’s court jurisdiction to hear and
determine claims relating to employment and labour relations. The Chief Justice may, by notice in the
Gazette, appoint certain magistrates to preside over cases involving employment and labour relations in
respect of any area of the country108. This was however not the position before The Magistrate’s Court
Act 2015, in Maendeleo ya Wanawake case109the Industrial court in Nairobi held that, Chief magistrates
court has no jurisdiction to hear the dispute as it falls within the exclusive jurisdiction of the Industrial
Court under Article 162 (2) and 165 (5) of the Constitution, Section 12 of the Industrial Court Act and
Section 87 of the Employment Act. Appeals from the designated Magistrate’s courts, on matters of
employment and labour, lies with the industrial court110.

The magistrate’s court also has power to punish for contempt. Contempt of court includes a person who
in the face of the court assaults, threatens, intimidates or insults a magistrate, court administrator,
judicial officer or a witness during a court sitting. It also includes interrupting or obstructing the
proceedings of the court and disobeying an order or direction of the court without lawful excuse in the
course of the hearing of a proceeding111. The magistrate’s court may sentence one for contempt to
imprisonment for a term not exceeding five days or a fine not exceeding one hundred thousand shillings
or both. One can appeal against an order for contempt of court as if it were a conviction and sentence
made in the exercise of the ordinary original criminal jurisdiction of the court.112

The sittings of a magistrate’s court may be held at any place within the local limits of its jurisdiction, but
it shall, so far as is practicable, be held at the place designated in the Gazette113. A magistrate has
jurisdiction to entertain any application and to determine any dispute under the Law of Succession Act
and pronounce such decrees and make such orders therein as may be expedient in respect of any estate
the gross value of which does not exceed the pecuniary limit of the various magistrates court. A
magistrate`s court may also call for and hear evidence of the customary law applicable to any case
before it.114

5. THE COURT MARTIAL

The Nature of a Court Martial

106
Environment and Land Court Act, 2011, Sect 26
107
Magistrates Court Act, 2015, Sect 25
108
Industrial Court Act, 2011, Sect 29
109
Maendeleo Ya Wanawake Organisation v Hellen Makone & another [2014] eKLR
110
ibid
111
Magistrates Court Act, 2015, Sect 10 (1) & (2)
112
Magistrates Court Act, 2015, Sect 10 (6) & (7)
113
Magistrates Court Act, 2015, Sect 13
114
Magistrates Court act, 2015, Sect 16 & 23
Unlike several jurisdictions where courts martial are not part of the countries’ judicial system as in the
United States of America, Courts Martials in Kenya are part of the judicial system. A court martial is an
ad hoc military court convened under military authority to try a member of the armed forces accused of
violating a military code,115 or service law and regulations.116

A court martial tries offences committed by personnel of the armed forces including matters of
indiscipline and also violation of ordinary law.117 The courts are set up for enforcement of disciplining
soldiers and officers of the defence forces, namely the Army, the Air Forces and the Navy. This excludes
members of the police service.118 However, the soldiers are also subject to the ordinary law of the
land119 (civilian law). The courts martial are ad hoc courts in that they are not permanent when the need
arises.

Establishment of the Courts Martial in Kenya

The Court Martial is established within the Kenya system of courts under article 162 and 169 and is
classified under the category of subordinate courts. Article120 establishes the subordinate courts as the
Magistrates courts; the Kadhis’ courts; the Courts Martial; and any other court or local tribunal
established by an Act of Parliament. The Constitution requires Parliament to enact legislation to confer
jurisdiction, functions and powers on the subordinate courts.121

The specific constitutional foundation of the Courts Martial is Article 169(1)(c) which in turn is
operationalized by the Kenya Defence Forces Act, 2012 (KDF Act hereafter) in furtherance of Article
169(2). The Act122 was enacted to provide for the functions, organization and administration of the
Kenya Defence Forces123 and succeeded the hitherto Kenya Armed Forces Act124 (repealed).

Composition of the Court Martial

The composition of a Court Martial as provided for by the Kenya Defence Forces Act125 consists of a
Judge Advocate who shall be the presiding officer; and three other members. However, if the person
being tried is an officer, the other members shall not be less than five and shall be appointed by the
Defence Court-Martial Administrator.

In each case, at least one of the members shall be of the equivalent rank of the accused person and at
least one other shall be the equivalent of the lowest rank in the unit the accused serves in.126 The Chief
Justice appoints the judge advocate from among magistrates, or advocates of ten years standing.127 The

115 Black’s Law Dictionary, (Ninth Edition, Thomson Reuters) 413.

116 Oxford Dictionary of Law, (Seventh Edition, Oxford University Press) 141.
117 Osborn’s Concise Law Dictionary, (Twelfth Edition, Sweet and Maxwell) 121.
118 Bwonong’a, M, Procedures in Criminal Law in Kenya, Nairobi: East African Educational Publishers ( 1994) 47.
119 Ibid.
120 Art. 169(1)
121 Art. 169(2)
122 Became effective September 17, 2012 following the Repeal of the Kenya Defence Forces Act which applied before

September 17, 2012.

123 Preamble, pursuant to Art. 232, 239(6) and 241.
124 Cap 199 of the Laws of Kenya.
125 S. 160 (KDF Act)
126 S. 160(3) (KDF Act)
127 S.165 (KDF Act)
Chief Justice is also empowered to make rules to regulate the administration and proceedings in courts
martial.128

The role of the judge advocate is to guide and advise the court on matters of law. However the final
decision is reserved for members of the court martial who deliberate the findings as guided by the recap
of the facts and the law by the judge advocate.129

Each member then writes own decision and is not bound by the decision of the others. The decision is
by majority vote and the accused must be acquitted in the event of a tie,130 and the Judge advocate has
a casting vote in favour of the accused.131 All members must however concur in the event of a death
sentence.132

In the event of death or inability of the judge advocate to continue with trial to conclusion, the
successor may continue with the evidence taken to-date or declare a mistrial.133 A mistrial implies that a
new court martial is appointed to start trial of the accused.134 Where three of more members of the
court martial are unable to continue with the trial, the accused may choose to have the matter continue
with the new members, or to have a fresh trial.135

Jurisdiction of the Court-Martial

The jurisdiction of the courts martial is to hear matters relating to offences and discipline of members of
the Kenya Defence Forces. This excludes the police who are considered civilian forces. The courts martial
are required136 to exercise their powers and discharge their functions in accordance with constitutional
values and principles as well as the specific principles espoused in Article 159(2)137.

Like other subordinate courts, the jurisdiction of the Courts Martial is established by an Act of
Parliament. The operative Act is the Kenya Defence Forces Act Cap, 2012. No provision in the Kenya
Defence Forces Act, code, order or regulation shall affect the jurisdiction of any civilian court to try any

128 S.160(4) (KDF Act)

129 Bwonong’a, M, Procedures in Criminal Law in Kenya, Nairobi: East African Educational Publishers ( 1994) 47; S.175
(KDF Act)
130 S.174(3) (KDF Act)
131 S.174(4) (KDF Act)
132 S.176 (KDF Act)
133 S.174 (1)(KDF Act)
134 S.174(3) (KDF Act)
135 S.174(2) (KDF Act)
136 S.161 (KDF Act)
137 That is to say:

(a) justice shall be done to all, irrespective of status;

(b) justice shall not be delayed;
(c) alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional
dispute resolution mechanisms shall be promoted;
(d) justice shall be administered without undue regard to procedural technicalities; and
(e) the purpose and principles of this Constitution shall be protected and promoted.
(b) Traditional dispute resolution mechanisms shall not be used in a way that--
(a) contravenes the Bill of Rights;
(b) is repugnant to justice and morality or results in outcomes that are repugnant to justice or morality; or
(c) is inconsistent with this Constitution or any written law.
offence subject to trial by a civilian court.138 A court martial can seat and have proceedings anywhere in
Kenya or outside Kenya.

Power of High Court over Courts Martial on Habeas Corpus

Under the Criminal Procedure Code139, the High Court has power to issue direction in nature of habeas
corpus for the production before a court martial, of any prisoner detained on a matter pending before a
court martial.

An order of habeas corpus is a procedural intervention where the High Court, once moved, intervenes to
enforce accountability among law enforcers and executive to require the production of a person before
court, of the release of such a person.140 An order of habeas corpus is one of the constitutional rights
and fundamental freedoms141 and which may not be limited.142

Offences Subject to the Jurisdiction of the Court-Martial

The acts or omissions which constitute an offence under the jurisdiction of the Courts Martial are
outlined under section 57 of the Kenya Defence Forces Act.143 These are provided as; actual committal
of an offence; an act of omission with the intention of aiding someone to commit an office; abetting any
person in committing an offence; counselling or procuring any person to commit an offence. The
offences will also attach where two or more persons form a common intention to carry out an unlawful
purpose.

The Act goes on to provide the specific offences and applicable punishment principally in sections 58 to
136. These are grouped into; treachery, cowardice and offences related to service;144 offences relating
to desertion and absence without leave;145 offences relating to disobedience of orders;146
insubordination;147 malingering, drunkenness and quarreling;148 offences relating to property;149
offences relating to billeting and requisitioning of vehicles;150 flying offences;151 offences related to
custody;152 offences concerning courts martial and other authorities;153 and miscellaneous offences.154

The most serious offences under the Act in that, a convicted person faces the mandatory death
sentence are; traitorous act when in action, the person fails to obey a lawful order in war, fails to engage
an enemy, withdraws, fails to pursue an enemy, fails to assist a friendly force, and forsakes a station.155

138 S.56, The Kenya Defence Forces Act, 2012.

139 S.3891)(d) (Criminal Procedure Act)
140 Kiage, P., Essentials of Criminal Procedure in Kenya, Nairobi: LawAfrica Publishing (2012) 213.
141 Art. 51(2)
142 Art. 25(d)
143 KDF Act, 2012
144 S.58 to 73.
145 S.74 to76
146 S.77 to 81.
147 S. 82 to 83.
148 S.84 to 86.
149 S.87 to 96.
150 S.97 to 98.
151 S.99 to 101.
152 S.102 to 105
153 S.109 to 110
154 S.111 to 136.
155 S.61
The others are the civil offences of treason or murder,156 robbery or attempted robbery with violence
and administration of illegal oaths to commit a capital offence.

Other offences which attract liability for the ultimate death sentence are; aiding an enemy;157
communication with an enemy so as to aid the enemy;158 spying;159 advocating an governmental change
by force;160 mutiny;161 and failure to suppress a mutiny.162

The last time a court martial sentenced a service man to death was in 1985 following the trials
subsequent to the August 1, 1982 attempted coup. Snr. Private Hezekiah Ochuka Rabala, Sgt. Pancras
Oteyo Okumu163 and Sgt. Joseph Ogidi Obuon, Corporal Walter Odira Ojode, Corporal Charles Oriwa
Hongo and Corporal Bramwell Njereman, were sentenced to death and promptly hanged on conviction
of the offence of treason.164 Also, at the time, the Courts Martial sentenced many service men to long
sentences in prison following hurried trials at the Courts Martial.

In more recent times, a Court Martial sitting at the Kenya Navy in Mtongwe Base, in November 2014,
sentenced four soldiers to life imprisonment. The accused were found guilty of deserting duty in
violation of section 74(1), during war time.165 They left military in 2007 and 2008 and joined the US
private security firms in Afghanistan, Kuwait and Iraq.166 The same court handed a similar sentence to
four soldiers on January 12, 2016 also for deserting the military to work in Syria, Jordan Iraq and other
Middle East Countries, bringing to 12 the number of soldiers convicted of the offence at the Court
Martial.167

A Court-Martial does not have jurisdiction to try any civilian person who is subject to the Kenya Defence
Forces Act, who is charged with certain civilian offences, namely, the sexual offences under the Sexual
Offences Act168 and any law against domestic violence, notwithstanding that the person is subject to the
Kenya Defence Forces Act.169 However, where a person commits a sexual offence outside Kenya, that
person will be tried and sentenced by a court-martial.170

The Paradox of Orders From Superiors in Military

156 S.133
157 S.58
158 S. 59
159 S.60
160 S.67
161 S.72
162 S.73
163 See Pacras Oteyo Okumu v Republic. Criminal Appeal No. 35 of 1984, (Mbaya W, Gicher JE, JJ)
164 Nyambega Gisesa, How Rest of Military Plotted Against Kenya Air Force -

https://nyambegagisesa.wordpress.com/2015/04/10/how-rest-of-military-plotted-against-kenya-air-force/ -
accessed on March 25, 2016.
165 Should be a reference to Kenya’s participation in the AMISOM forces in Somalia.
166 Court martial jails four soldiers for life, two others to face fate today -

http://www.standardmedia.co.ke/article/2000142473/court-martial-jails-four-soldiers-for-life-two-others-to-face-
fate-today - Accessed March 25, 2016
167 Ex-soldiers jailed for life by court martial - http://www.nation.co.ke/news/Ex-soldiers-jailed-for-life-by-court-

martial/-/1056/2588406/-/849ykk/-/index.html - Accessed March 25, 2016.

168 No 3 of 2006.
169 S.55(1), (KDF Act).
170 S.55(2), (KDF Act).
A controversy which surrounds the offence of failure to obey an order from superiors has been variously
discussed in judicial process. The issue is the dilemma that faces military officer or serviceman between
obeying an order which may turn out to be unlawful, against being charged with the offence of
disobedience of orders under sections 77 to 81.

In Clegg,171 the House of Lords and the Privy Council asserted that there is no defence of superior order
in English Law.172 In A v Hayden,173 the High Court of Australia was emphatic that the executive had no
power to authorize an illegal a breach of the law and the excuse of an offender to say that he acted the
authority of a superior officer would not be acceptable. This observes Ormerod174 can be particularly
harsh for military personnel in the face of military orders. Service men are trained to take orders and
obedience is almost a reflex action. Omerod recalls words of Dicey175 that “a soldier may be liable to be
shot by a court-martial if he disobeys an order, and to be hanged by a judge… if he obeys it.” In Kenya, it
is reflected in the common saying “obey the order, ask questions later”, thereby imperiling the innocent
solder.

Limitation of Rights of an Arrested Person for appearance in a Court Martial

A member of the Defence Forces held with view to appearing before a Court Martial or before a
commanding officer may be held for up to 8 days.176 This is a limitation of the constitutional right of an
arrested person under Article 49 where an arrested person must be arraigned in court within twenty-
four hours or by the earliest next court day177. Moreover, the commanding officer is empowered to
review his decision after the eight days,178 suggesting that a suspect may end up being held for unlimited
period of time before they are brought before a court-martial.

Further limitations of the rights of persons held under the Act are that such a person may be held along
with convicted persons;179 may be held without bail; 180 may be held in custody even if the offence is
punishable by a fine only, or the jail term is no more than six months.181

Prosecution before a Court Martial vis a viz the Director of Public Prosecution

The Prosecution before a Courts Martial is carried out by an officer or counsel appointed under the
Court Martial Rules. Under the constitution, the Director of Public Prosecutions (DPP) is precluded from

171 [1995] 1 All ER 334 at 244.

172 Ormerod, D, Smith and Logan’s Criminal Law 13th Edition London: Oxford University Press (2008) 377.
173 [1984] No 2 156 CLR 532 at 540. (Ormerod, D, Smith and Logan’s Criminal Law 13th Edition London: Oxford

University Press (2008) 377.).

174 Ibid, 378.
175 Dicey, AV., Introduction to the Study of the Law and the Constitution 19th Edition (1959) 303.
176 S.54, (KDF Act).
177 Art. 49(1)(f).
178 S.54(3). (KDF Act)
179 S.54(2)(a). (KDF Act)
180 S.54(2)(b). (KDF Act)
181 S.54(2)(c). (KDF Act)
instituting or undertaking such proceedings before a court martial.182 This is an exception to the
constitutional powers of the DPP to institute and undertake criminal proceedings against any person
before any court.183

Similarly, the DPP’s power to take over and continue or discontinue any criminal proceedings
commenced, instituted, or undertaken by any other person or authority is excluded from the court
martial.184 The effect is that the DPP cannot participate in court martial proceedings.

Appeals

A person convicted by a Court Martial may appeal to the High Court and subsequently to any other
superior court.185 However, the initiation of the appeal can only be with the leave of the High Court
itself.186 One or more judges may hear the appeal.187

This means that a person convicted by a Court Martial has no locus of appeal as of right and can only do
so if permitted by the High Court to challenge the findings and convictions. An accused has 21 days to do
so.188

In Obuon v Republic, 189 the appellant, Joseph Ogiddy Obuon was charged in a Court Martial190 and
convicted with committing a civilian offence of treason contrary to section 69(1)(a)of the Armed Forces
Act191 and Section 40(1)(a)(iii) of the Penal Code192 an offence allegedly committed on diverse dates
between April 1 and August 1, 1982.193 He made an application to the High Court for leave to appeal
against the conviction and sentence for procedural errors. The application was dismissed finding that
Court Martial had followed the correct procedure finding that there was ample evidence to show that
the appellant had actively participated in plans to overthrow the government of Kenya.

The DPP has a right to appeal to the High Court against an acquittal or sentence of an accused person by
the Court Martial.194 within 21 days. This contrasts with the civilian trials where the DPP has no right of
appeal against sentence under the Criminal procedure Code.

Case law shows frequent instances where persons convicted in a court martial have appealed to the
High Court.

182 Ibid.
183 Art. 157(6)(a)
184 Art. 157(6)(b)
185 S.186.
186 S.116 (KDF Act) and Armed Forces (Court Martial Appeals) Rules, 1969.
187 S.195 (KDF Act)
188 S.187. (KDF Act.
189 High Court of Kenya, Nairobi, Court Martial Criminal Appeal/ Application No. 3 of 1983 (JHS Todd, E O’Kubasu

JJ)
190 Sitting at Lang’ata Barracks
191 Cap 199 of the Laws of Kenya (since repealed by the Kenya Defence Forces Act, 2012).
192 Cap 163 of the Laws of Kenya
193 Usually referred to a 1st August 1982 attempted coup.
194 S.186 (1) & (2). (KDF Act)
In Ocheno v Republic,195 the appellant’s appeal before the High Court was against conviction and
sentence of 6 years imprisonment by a Court Martial196 on his plea of ‘guilty’ on a charge of mutiny197.
The review board has declined his appeal for reduction of sentence. The High Court, having considered
his mitigation reduced the sentence to 4 years.

In Sgt. Josphat Opata Nabwera v Republic, 198 the appellant was convicted and sentenced by a Court
Martial199 on five counts of obtaining money by false pretence,200 a civilian offence contrary to section
313 of the Penal code; in contravention of section 69 of the Armed Forces Act.201 He was imprisoned for
a total of 2 years and 3 months and dismissed from the Armed Forces.

He appealed against the sentence on grounds of violation of his constitutional right of delay in
commencement of the trial,202 evidence at variance with charges, allegations not proved beyond
reasonable doubt and ignoring of his defence by the court martial.

Persons serving, or who formerly served the Defence Forces can also approach the High court over
constitutional and human rights violation. This is demonstrated in David Gitau Njau & 9 others v
Attorney General.203

Here, the applicants sort a declaration by the High Court that their rights and fundamental freedoms
had been violated204 by the officers of the Kenya Army claiming violations of torture, harassment, cruel,
inhuman and degrading treatment and being held in detention incommucado, for a period of eight
months and eventually being released without charge or arraignment in court. They further prayed for
general and aggravated damages. The court found for the petitioners and awarded general damages
including the declaratory prayers.

195 High Court, Nairobi (Appelate Side), Nyeri Court Martial Criminal Case No. 38 of 1984 (O’Kubasu E, J)
196 Sitting in Lang’ata Barracks, Nairobi.
197 Contrary to S. 25(2) of the Armed Forces Acyt, Cap 199 of the Laws of Kenya.
198 Court Martial Criminal Appeal No. 3 of 2009, High Court of Kenya at Nairobi (Msagha AM, Achonde LA)
199 Sitting at Lang’ata Barracks
200
201 Cap 199 of the Laws of Kenya (since repealed by the Kenya Defence Forces Act, 2012).
202 Art. 50(20)(e) (S.72 and 77 repealed constitution)
203 Petition No.340 of 2012, High Court of Kenya, Constitutional and Human Rights Division.
204 Contrary to sections 70(a0, 72(3), 7491) and 77 of the repealed constitution and now Articles 27(1), (2), 49(1)9f) and

50(2) of the Constitution of Kenya 2010.