CRIMINAL PROCEDURE

A brief overview of Criminal process

Criminal process is the steps followed whenever a crime is committed up to conviction

and other post-trial processes thereafter. The criminal process majorly commences with

the commission of an offence. In most cases this is followed by the complainant lodging

a complain at the police station or to the relevant authorities. In some cases investigations

are carried out and if there are reasonable grounds of arresting certain individuals as

suspect, then it is carried out. It is notable however that not all crimes have a complainant

or commences with complain from a victim. Section 36A of the Criminal Procedure Code

gives court power to sanction a detention that goes beyond the provided timeframe.

The next procedure is to formally charge and arraign the suspect in court. The law is that
the person must be presented in court within a reasonable time usually before 24 hours
lapses. On production in court the accused takes plea (plea taking). In the plea the
accused pleads guilty or not guilty. If he or she pleads guilty and the charge was a
misdemeanor, the court may sentence the accused immediately basing on their own plea
but after the prosecution reads what is contained in the prosecution file. If it is a felony
the court may be reluctant to proceed to sentencing immediately and mostly requires the
prosecution to go through their files at a later date before sentencing. If the accused
pleads not guilty, the matter proceeds to hearing. The accused may pray to the court to be
released on bail or bond awaiting the hearing date.

The hearing involves compilation and presentation of evidence in court. The hearing is
conducted where it commences by prosecution case, then proceeds to ruling on a case to
answer, if there is a case to answer the accused is given an opportunity to defend himself.

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The hearing is concluded by parties making submission in courts (either orally or in
writing). The court then pronounces judgment in regard to whether the accused has been
found guilty or not guilty. If found guilty the matter proceeds to sentencing hearing
where both parties are given an opportunity to demonstrate to court on the
appropriateness of sentence to be provided. For the prosecution they majorly give
aggravating factors (they are supposed to guide the court which may include giving
factors that may lessen the punishment). The convict side always gives mitigating factors
as their objective is to convince court to arrive at a lenient punishment. Thereafter the
court makes a ruling on a sentence to be served by the convict. The court arrives at this
basing on the facts from the pre-sentence proceedings vis-à-vis the types of punishment
in law especially section 24 of the Penal Code and other principles of sentencing (A
detailed discussion on the criminal process is in Criminal Procedure module)

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 STRUCTURE AND CRIMINAL JURISDICTION OF COURTS

 Magistrates’ courts and tribunals;

 High Court;
 Court of Appeal;
 Supreme Court;
 International Criminal Court.

a) Basic Structure
 Kenya’s system of courts is structured, in descending order, basically as
follows-
 Supreme Court (Art. 163 of the Constitution);
 Court of Appeal (Art. 164);
 High Court (Art. 165);
 Subordinate courts (including, so far as criminal jurisdiction is
concerned, anti-corruption and economic crimes court, magistrates’
courts( including children’s court) & courts martial- Art. 169).
 The above structure may be represented diagrammatically as under:

SUPREME COURT

COURT OF APPEAL

HIGH COURT

SUBORDINATE COURTS

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b) The Supreme Court & its Composition
 The Supreme Court consists of 7 judges-
i. the Chief Justice who is the President of the Court;
ii. the Deputy Chief Justice who is the Vice-President of the Court;
iii. 5 other Judges [Art. 163(1)].

c) Criminal Jurisdiction of the Supreme Court

 The Constitution does not expressly allude to the Supreme Court as having
criminal jurisdiction. Rather, under Art. 163(3)(b) as read with clauses (4) &
(5) thereof, the Constitution vests general appellate jurisdiction on the
Supreme Court to hear and determine appeals from-
i. the Court of Appeal;
ii. any other court or tribunal as prescribed by national legislation.
 As far as appeals from the Court of Appeal to the Supreme Court are
concerned, they-
i. lie as of right in any case involving the interpretation or application of
the Constitution; and
ii. lie in any other case in which the Supreme Court, or the Court of
Appeal, certifies that a matter of general public importance is
involved.
NB: It should, however, be noted that the certificate by the Court of Appeal
is subject to review by the Supreme Court, which may either affirm or
overturn the said certificate.
 It is submitted that the appeals alluded to in this part (c) may include
appeals in criminal matters.

d) Direct appeals in exceptional circumstances

 Section 17 of the Supreme Court Act, No. 7 of 2011 vests criminal
jurisdiction in the Supreme Court by providing a window, inter alia, for an
aggrieved party in proceedings in any court or tribunal other than the Court

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 of Appeal to appeal to the Supreme Court directly against a conviction
entered, or a sentence imposed in such proceedings if satisfied that it is
necessary in the interests of justice for the Supreme Court to hear and
determine the proposed appeal upon being further satisfied that there are
exceptional circumstances to justify such direct appeal.
 Likewise Section 28 of the Supreme Court Act vests criminal jurisdiction in
the Supreme Court by empowering it, inter alia, to punish for contempt of
itself committed through assaults upon, threats, intimidation or willful
insults to its Judges or other officers by sentencing contemnors to
imprisonment for a period not exceeding five days, or to pay a fine not
exceeding five hundred thousand shillings, or both, for every offence
[Subsection 3].
NB: Subsection (4) of the Act also vests the Supreme Court with the same
power as the High Court to punish for contempt of court in any case not
covered by Subsection (1) while Subsection (5) clarifies that Subsections
(1) to (3) do not limit or affect the power and authority referred to in
Subsection (4).

e) The Court of Appeal & its Composition

 According to the Constitution, the number of Judges of Appeal shall not be
less than 12 but this number may be enlarged by an Act of Parliament [Art.
164(1)(a)].
 The Court of Appeal is presided over by a President of the Court, elected by
the Judges of the Court from among themselves [Art. 164(2)].

f) Criminal Jurisdiction of the Court of Appeal

 The Constitution does not expressly confer criminal jurisdiction on the
Court of Appeal. Rather, the Constitution confers general jurisdiction on the
Court of Appeal to hear appeals from-
i. the High Court; and

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 ii. any other court or tribunal as prescribed by an Act of Parliament
[Art. 164(3)].
 The Appellate Jurisdiction Act, Cap. 9 elaborates-
i. that the Court of Appeal has jurisdiction to hear and determine
appeals from the High Court in cases in which appeals lie to the
Court of Appeal under law; and
ii. that the Court of Appeal has in addition to any other power,
authority and jurisdiction conferred by the Act, the power,
authority and jurisdiction vested in the High Court [Section
3(1)&(2)].
 Section 5(1) of the Act empowers the Rules Committee to make rules of
court for regulating the practice and procedure of the Court of Appeal with
respect to appeals and also for regulating the practice and procedure of the
High Court. Subsection 5(2)(c) introduces the issue of criminal jurisdiction
by adding that the aforesaid rules may include rules for prescribing cases in
which and the conditions upon which an appellant in a criminal appeal to
the Court shall be entitled to be present at the hearing of the appeal.
 The Court of Appeal Rules promulgated under the Appellate Jurisdiction Act
make elaborate provisions vide Part III for Criminal Appeals from superior
courts acting in both original and appellate jurisdiction in criminal cases
and also stipulates the mode of invoking the appellate court’s jurisdiction in
criminal matters.
 The Court of Appeal also has jurisdiction to punish for contempt of court
similar to the jurisdiction exercised by the High Court in that regard.
Section 5(1) of the Judicature Act, inter alia, provides that the Court of
Appeal has “the same power to punish for contempt of court as is for the
time being possessed by the High Court of Justice in England”, and that
such powers extend to upholding the authority and dignity of subordinate
courts.

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 In the latter regard, it is instructive to note that in England the Contempt of
Court Act, 1981 vests jurisdiction in a magistrates’ court to order any
person who-
i. wilfully insults the justice or justices, any witness before or officer
of the court or any solicitor or counsel having business in the
court, during his or their sitting or attendance in court or in going
to or returning from the court, or
ii. wilfully interrupts the proceedings of the court or otherwise
misbehaves in the court
to be taken into custody and detained until the rising of the court; or to
commit the offender to custody for a specified period not exceeding one
month; or to impose on him/her a fine not exceeding £500 (approx. Kshs.
65,000/=), or both.
 Further, Section 5(2) of the Judicature Act provides that an order of the
High Court made by way of punishment for contempt of court shall be
appealable as if it were a conviction and sentence made in exercise of the
ordinary criminal jurisdiction of the High Court. It seems to follow,
therefore, that the Court of Appeal is vested with jurisdiction to entertain
appeals from orders made by the High Court by way of punishment for
contempt of court as if made in exercise of the High Court’s original criminal
jurisdiction.
NB: What may not be clear-cut is what happens if an act of contempt of court
is committed against or in the face of the Court of Appeal. Would an
order of the Court of Appeal by way of punishment for contempt of itself
be appealable to the Supreme Court as if it were a conviction and
sentence made in exercise of original criminal jurisdiction of the Court of
Appeal? I don’t see why not. However, it would be advisable for the
ambiguity to be cured through express legislative provisions.

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g) Criminal Jurisdiction of the High Court
 The Constitution expressly confers original criminal jurisdiction on the High
Court and such jurisdiction is unlimited [Art. 165(3)(a)].
 The Criminal Procedure Code, Cap. 75 vests the High Court with appellate
jurisdiction from decisions of subordinate courts of the first and second
class made by those courts in exercise of their criminal jurisdiction and
such appellate jurisdiction may be on matters of fact or law (Section 347).
 The Judicature Act also vests the High Court with admiralty jurisdiction in
all matters arising on the high seas, or in territorial waters, or upon any
lake or other navigable inland waters in Kenya [Section 4(1)].
NB: Black’s Law Dictionary, 8th Edition by Brian A, Garner, Editor-in Chief
defines “admiralty” as a court that exercises jurisdiction over all
maritime contracts, torts, injuries, or offences.
 As earlier noted with regard to the Court of Appeal, the Judicature Act also
vests in the High Court “the same power to punish for contempt of court as
is for the time being possessed by the High Court of Justice in England”,
and that such power extends to upholding the authority and dignity of
subordinate courts [Section 5(1)].
 As recorded earlier, Subsection (2) adds, instructively, that an order of the
High Court made by way of punishment for contempt of court shall be
appealable as if it were a conviction and sentence made in exercise of the
ordinary original criminal jurisdiction of the High Court.

h) Subordinate Courts & their Composition

 Subordinate Courts include Magistrates Courts, Courts-Martial and any
other courts or tribunals other than those with the status of the High Court
established to hear and determine disputes relating to employment and
labour relations or the environment and the use and occupation of, and title
to, land [Art. 169(1)(a), (c)&(d) as read with Art. 162(2)(a)&(b)].

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 Courts-Martial are established under the Defence Forces Act which basically
deals with cases of discipline of members of Kenya’s armed forces. Acts of
indiscipline under the Armed Forces Act include mutiny.

The bulk of criminal offences in Kenya are tried by Magistrates Courts.

These are the ones dwelt on in this discourse.
 The basic categories of magistrate, in descending order, are: Chief
Magistrate, Senior Principal Magistrate, Principal Magistrate, Senior
Resident Magistrate, Resident Magistrate and District Magistrate.

i) Criminal Jurisdiction of Magistrates’ Courts

 The Magistrates’ Courts Act, Cap. 10 establishes Magistrates’ Courts,
declares their jurisdiction, provides for the procedure of such courts and
also provides for appeals in certain cases.
 The term “magistrate” is defined in the Act to mean all the categories of
magistrate listed in the preceding part (h) while a “magistrate’s court” is
defined to mean the Resident Magistrates’ Court or a District Magistrates’
court [Section 2(f)].
 The Resident Magistrates’ Court has jurisdiction throughout Kenya and
exercises such jurisdiction and powers in proceedings of a criminal nature
as are for the time being conferred on it by-
i. the Criminal Procedure Code; or
ii. any other written law (Section 4).
 A magistrate is empowered to hold a magistrate’s court of such class as is
designated by the Judicial Service Commission (Section 6).
 A magistrate’s court has and exercises such powers in proceedings of a
criminal nature as are for the time being conferred on magistrates’ courts
by-
i. the Criminal Procedure Code; or

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 ii. an order by the Chief Justice; or
iii. any other written law (Section 8).
j) Tribunals
 The terms “court” and “tribunal” are frequently used interchangeably. For
instance, Black’s Law Dictionary (supra) defines ‘Tribunal” as a court or
other adjudicatory body.
 The interchangeability of the terms “court” and “tribunal” may be further
exemplified by the 1994 Rwanda genocide’s adjudicatory body bearing the
name International Criminal Tribunal for Rwanda while a similar
adjudicatory body for Sierra Leone over alleged violation of international
humanitarian law and Sierra Leonean law bears the name Special Court for
Sierra Leone.
 For purposes of the present discourse, “tribunal” is assigned the general
meaning given in Black’s Law Dictionary, so no in-depth treatment of the
subject is undertaken here.
 These tribunals or specialized courts in Kenya can be referred in regard to
anti-corruption and Economic crimes court and children’s court(juvenile
courts)

k) The International Criminal Court (ICC)

i. Mandate of the Court (Art. 1)
 A permanent institution with power to exercise its jurisdiction over
persons for the most serious crimes of international concern, as referred
to in the Statute of the ICC, commonly known as the Rome Statute (so
called because Rome is where the Diplomatic Conference on the
Establishment of the Court was convened, eventually leading to adoption
of the Statute in July, 1998).
 The Court’s criminal jurisdiction is complementary to national
criminal jurisdictions.

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 NB: Otherwise the 6th & 10 recitals of the Preamble to the Statute
acknowledge that it is the duty of every State to exercise its
criminal jurisdiction over those responsible for international
crimes.
 The Court’s jurisdiction and functioning is governed by the provisions of
the Statute (ratified on 11th April, 2002).

ii. Seat of the Court (Art. 2)

 The seat of the Court is at The Hague in the Netherlands (the host State).

iii. Basic Structure of the ICC (Art. 34)

 The Court is composed of 4 basic organs-
 Presidency
 Judicial Divisions
 Office of the Prosecutor
 Registry
 Vide Art. 38 the Presidency is responsible for the overall administration
of the Court, with the exception of the Office of the Prosecutor, and for
specific functions assigned to the Presidency in accordance with the
Statute.
 The Presidency is composed of 3 Judges of the Court, elected to the
Presidency by their fellow Judges, for a term of 3 years.
 The 3 Judges are: The President, First Vice-President & Second Vice-
President.
 According to Art. 39, the Judicial Divisions comprise-
 Appeals Division (President & 4 other Judges)
 Trial Division (not less than 6 Judges)
 Pre-Trial Division (not less than 6 Judges)
NB: The Trial & Pre-Trial Divisions are composed predominantly of Judges
with criminal trial experience.

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  The Office of the Prosecutor (Art. 42)-
 Acts independently as a separate organ of the Court.
 Is responsible for receiving referrals and any substantiated
information on crimes within the jurisdiction of the Court (Ref. Art.
5), for examining them and for conducting investigations &
prosecutions before the Court.
 The Registry (Art. 43)-
 Is responsible for the non-judicial aspects of the administration &
servicing of the Court, without prejudice to the functions & powers
of the Prosecutor in accordance with Art. 42.
 Sub-Article (6) enjoins the Registrar to set up a Victims &
Witnesses Unit within the Registry to provide, in consultation with
the Office of the Prosecutor, protective measures and security
arrangements, counseling and other appropriate assistance for
witnesses, victims who appear before the Court, and others who
are at risk on account of testimony given by such witnesses.

iv. Crimes within the jurisdiction of the ICC (Art. 5)

 The crimes falling within the jurisdiction of the Court are listed as-
 The crime of genocide;
 Crimes against humanity;
 War crimes;
 The crime of aggression.
 While the crime of genocide, crimes against humanity and war crimes
were defined at the inception of the Statute vide Articles 6, 7 & 8,
respectively, the crime of aggression was not so defined.
 Instead, Art. 5(2) deferred the exercise of the Court’s jurisdiction over the
crime of aggression until after a provision was adopted in accordance
with Articles 121 & 123 defining the crime and setting out the conditions
under which the Court would exercise jurisdiction with respect to the

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 crime. Article 123 provides for review by a Review Conference convened 7
years after the entry into force of the Statute to consider its amendment.
 An Article entitled Delivering on the promise of a fair, effective and
independent Court: The Crime of Aggression
(http://www.iccnow.org/?mod=aggression) records that a Review
Conference held in Kampala, Uganda between 31st May and 11th June,
2010 adopted by consensus amendments to the Rome Statute which
included a definition of the crime of aggression and a regime establishing
how the Court will exercise its jurisdiction over this crime.
 The Kampala Review Conference defined the crime of aggression at
individual level as-
 The planning, preparation, initiation or execution by a person in a
leadership position of an act of aggression.
NB: This is not very illuminating as it purports to define
“aggression” in terms of itself!
 At State level, the Kampala Review Conference defined aggression as-
 The use of armed force by one State against another State without
justification of self-defence or authorisation by the Security
Council.
NB: The above cited article notes, instructively, that-
i. The Kampala definition contains the threshold requirement that
the act of aggression must constitute a manifest violation of the
Charter of the United Nations.
ii. The Kampala definition of the act of aggression, as well as the
actions qualifying as acts of aggression contained in the
amendments [for example invasion by armed forces, bombardment
and blockade] are influenced by the UN General Assembly
Resolution 3314 (XXIX) of 14th December, 1974.
iii. The conditions for entry into force decided in Kampala provide that
the Court will not be able to exercise its jurisdiction over the crime

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 of aggression until after 1st January, 2017 when a decision is made
by States Parties to activate the jurisdiction.

l) Application of the ICC Statute to Kenya

 In December, 2008 Kenya enacted the International Crimes Act, No. 16 of
2008 which came into force on 1 st January, 2009 vide Legal Notice No. 66
dated 22nd May, 2009.
 The long title to the Act states that its purpose is to make provision for the
punishment of certain international crimes, i.e. genocide, crimes against
humanity and war crimes, and to enable Kenya to co-operate with the ICC
established by the Rome Statute in the performance of its functions.
 Section 4 of the International Crimes Act specifies the provisions of the
Rome (ICC) Statute deemed to have the force of law in Kenya, namely-
 Part 2 (relating to jurisdiction, admissibility & applicable law);
 Part 3 (relating to general principles of criminal law);
 Articles 51 & 52 (relating, respectively, to the Rules of Procedure &
Evidence, and Regulations of the Court);
 Part 5 (relating to the investigation & prosecution of crimes within
the jurisdiction of the ICC);
 Part 6 (relating to the conduct of trials);
 Part 7 (relating to penalties);
 Part 8 (relating to appeals & revision of acquittals, convictions or
sentences);
 Part 9 (relating to international co-operation and judicial
assistance);
 Part 10 (relating to enforcement of sentences and other measures
imposed by the ICC).
 Section 4 also clarifies that the aforesaid provisions shall have the force of
law in Kenya in relation to the following matters-

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  The making of requests by the ICC to Kenya for assistance and the
method of dealing with those requests;
 The conduct of an investigation by the Prosecutor or the ICC;
 The bringing and determination of proceedings before the ICC;
 The enforcement in Kenya of sentences of imprisonment or other
measures imposed by the ICC, and any related matters;
 The making of requests by Kenya to the ICC for assistance and
method of dealing with these requests.
NB: It is worth noting-
i. That the Constitution of Kenya, 2010 provides vide Article 2(5) that
the general rules of international law form part of the law of Kenya.
ii. That the said Constitution provides vide Article 2(6) that any treaty
or convention ratified by Kenya forms part of the law of Kenya
under the Constitution.
iii. That the ICC Statute is a multilateral treaty to which Kenya is a
party.
iv. That Article 12(1) of the ICC Statute unequivocally ordains that a
State which becomes a Party to the Statute thereby accepts the
jurisdiction of the Court with respect to the crimes referred to in
Article 5.
v. That although the ICC Statute is appended to and forms the First
Schedule to Kenya’s International Crimes Act, the ICC Rules of
Procedure & Evidence are not so appended; and that students are
advised to download the Rules from the internet and acquaint
themselves with them alongside the ICC Statute.
vi. That the ICC has jurisdiction only with respect to crimes
committed after the entry into force of the ICC Statute [Art. 11(1)].

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