AFRICA NAZARENE UNIVERSITY

LAW SCHOOL
COURSE TITLE: CRIMINAL PROCEDURE
COURSE UNIT: LAW 208
DATE: APRIL-AUGUST 2018
TIME: FRIDAY 8:00 A.M-11:40 A.M.
PLACE: RONGAI
LECTURER: DR. CHARLES A. KHAMALA

LECTURE SEVEN: LEGAL REPRESENTATION

1. INTRODUCTION
Legal representation goes to the root of a fair hearing which is a cardinal facet of due process.
The state being an abstract entity is represented by the office of the Director of Public
Prosecutions or other prosecutor. It has considerable resources to investigate and mount
prosecution. The accused may either represent himself or opt to be represented by an advocate.
Nonetheless, the accused must be present during trial. Under Article 48 of the 2010
Constitution:
“The state shall ensure access of justice for all persons and if any fee is required, it shall be
reasonable and shall not impede access to justice.”

2. REPRESENTATION OF THE ACCUSED

Under Article 50(2)(g) and (h) :-
“Every accused has the right to a fair trial, which includes the right:
(g) to choose and be represented by, an advocate, and be informed of this right
promptly;
(h) to have an advocate assigned to the accused person by the state and at state expense,
if substantial injustice would otherwise result, and to be informed of this right
promptly.”
(a) The Right of the Accused to be represented by Counsel

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An accused person has a right to choose and be represented by advocate of his choice. He
needs to be “promptly” informed of this right. He has the option of representing himself. The
Advocates Act (Cap 16) defines an advocate as a person whose name appears in the Roll of
Advocates. Neither can an advocate be imposed on an accused “Promptly” probably means on
his first court appearance.

(b) At State Expense

The accused also needs to be informed if lack of counsel would result in substantial injustice
and that he has a right to have counsel assigned to him by the state at state expense. Hence if an
accused upon being informed of his right to counsel indicates that he cannot afford one, and
further if substantial injustice would result, then he should be informed of the state’s obligation
to provide counsel and pay for one. The accused must choose the counsel and subject to the
counsel accepting, the state must pay his fees. Alternatively, the state may suggest a counsel
and if the accused is agreeable, accept his representation.
What objective test determines circumstances which may cause substantive injustice
resulting from lack of counsel?. “Substantial” implies a fairy high threshold.
In R v Jama Haleys Alias Hassan Jamal & 5 others (2010) eKLR, the six accused persons had
been jointly charged with the offence of piracy. They were initially represented by counsel
who applied to withdraw, which was permitted. The trial magistrate then ordered the state to
provide counsel at state expense. The High Court however reviewed the order that the old
Constitution merely provided under section 77(2)(d) as follows:-
“Every person who is charged with a criminal offence shall be permitted to defend
himself before the court in person or by a legal representation of his own choice.”
S 77(14) provided that “nothing contained in sub-section 2(d) shall be construed as entitling a
person to legal representation at public expense.”
The second challenge to this provision was made in David Njoroge Macharia v R (2011)
eKLR where the accused made a second appeal to the Court of Appeal challenging his
conviction for robbery with violence carrying the mandatory death sentence. It was rejected
since section 77(14) explicitly ruled out legal representation at state expense, notwithstanding
that the trial was for a serious offence, and trial without representation not only violated his

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constitutional rights but even his rights under the UN International Covenant on Civil and
Political Rights (1966) and the African Charter on Human and Peoples’ Rights (1981)
In Pett v Greyhound Racing Association [1968] 2 ALL ER 545 at 549, it was stated
that:
“The right to legal representation is almost axiomatic in an adversarial legal system.
Under the adversarial system, court proceedings are left between the parties to fight it
out. The Bench serves as the umpire and intervenes only to enforce compliance with the
rules and ensure fairness of the proceedings. Where it is applied in criminal matters, the
adversarial system may result in incalculable prejudice to the accused person whose
liberty or life may be at stake. It is for this reason that accused persons are accorded the
right to appoint legal representation of their own choosing. Strongly related to the
adversarial system, is the principle of equality of arms which is an essential feature of a
fair trial. Equality of arms is the expression of the balance that must exist between the
prosecution and the defence.”
Significantly, Article 2(5) and (6) of the 2010 constitution not only import international treaties
ratified by Kenya but even the general rules of international law. (5)
Such as Article 14(3)(d) of the ICCPR and Article 7(1)(d) of the African Charter.
The Macharia Case observed that:
“The role of a defence counsel is institutional and it is meant to serve, not only the client,
bust also those of the court and the overall interests of justice.”
Secondly: “that the right of representation by counsel relieves trial judges of the burden to
explain and enforce basic rules of courtroom protocol and to assist the accused in
overcoming routine, and regular legal obstacles which the accused may encounter if he
represents himself. . .”

[MAKE NOTES ON THE ACCUSED’S RIGHT TO REPRESENT HIMSELF]