COUNCIL OF LEGAL EDUCATION

KENYA SCHOOL OF LAW

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THE ADVOCATES TRAINING PROGRAMME

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COMMERCIAL TRANSACTIONS
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ATP 101
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4TH AUGUST 2012

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 KENYA SCHOOL OF LAW
(2012/2013)
CRIMINAL LITIGATION
COURSE OUTLINE
Course Instructors: Mr. Simiyu Murambi
Mr. Justice Benjamin Kubo
Mr. Abdi Hassan
FIRST SEMESTER
1. INTRODUCTION
• Criminal Litigation Content
• Overview of Criminal Law principles

2.JURISDICTION AND STRUCTURE OF COURTS

• Magistrates’ courts and tribunals;
• High Court;
• Court of Appeal;
• Supreme Court;
• International Criminal Court.

3. ARRESTS
• Arrest without warrant.
• Arrest with warrant.

4. IDENTIFICATION PARADES
• What are identification parades?
• Conduct of the ID parades;
• Production of ID parade evidence.

5. PREPARATION OF FILES FOR TRIAL

• Contents of the Police/Prosecution file;
• Contents of the Advocates file;
• Contents of the Court file.

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6. COMPLAINT AND CHARGE
Methods and Rules of framing charges
• Defects in drafting charges: Duplicity &Lack of Ingredients;
• Capital charges;
• Alternative charges;
• Conspiracy;
• Attempts;
• Joinder of persons;
• Joinder of counts;
• Amendment of charges;
• Motion to quash( application to dismiss)

7. PLEAS

• Introduction: The Nature of a plea.

• Equivocal and unequivocal plea
• Plea agreements
• Change of plea
• Autrefois acquit
• Autrefois convict
• Pardon

8. BAIL ANDBOND
(a) Bail
- Police bond;
- Anticipatory bail;
- Bail pending or during trial;
- Bail pending appeal.
(b) Sureties and Discharge of sureties;
(c) Forfeitures/Noncompliance with bail terms;
(d) Recognizance.

PROCESS OF BAIL/ BOND

• Securities;

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 • Verification process;
• Sureties and Discharge of sureties;
• Forfeitures/Noncompliance with bail terms.

9. PRE-TRIAL CONFERENCING
• Meeting accused person before arraignment;
• Advocate-prosecution communication;
• Recording of witness statements;
• Application for witness statement;
• Pre-Trial Management.

SECOND SEMESTER
10. TRIAL PROCESS AND MATTERS ARISING
a) The trial process
• Right to a fair hearing;
• Opening statement/address;
• Examination of witnesses (ordinary or special witnesses, e.g. minors, expert
witnesses, refractory or hostile witnesses);
• Production of exhibits;
• Trial within a trial;
• Close of prosecution case;
• Submissions (no case to answer, case to answer);
• Ruling;
• Defence (as the case may be);
• Final submissions.

b) Pre & Post-Sentencing Proceedings

• Judgment;
• Victim impact assessment;
• Mitigation or aggravation;
• Sentencing process;
• Right of appeal.
c) Lunacy or other incapacity of accused person
• Procedure in case of lunacy or other incapacity of an accused person.

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 d) Other processes
• Transfer of cases;
• Termination of charges;
• Amicus curiae;
• Watching brief.

THIRD SEMESTER
11. HIGH COURT
• High Court Criminal Jurisdiction;
• Mode of Trial;
• Revision.

12. APPELLATE JURISDICTION

• Right of Appeal
• Appeal from Magistrates courts to the High Court;
• Appeal from High Court to the Court of Appeal;
• Appeals from the Court of Appeal to the Supreme Court;
• Appeal from a court or tribunal other than the Court of Appeal directly to the Supreme
Court in exceptional circumstances;
• Principles and Procedures governing Appeals;
• Determination of Appeals.

SPECIAL PROCEEDINGS
13. PRIVATE PROSECUTIONS
14. INQUESTS
15. EXTRADITION PROCEEDINGS
16. MISCELLANEOUS APPLICATIONS; freezing accounts, search and confiscation and
summons.
17. HABEAS CORPUS
18. PROCEDURES IN SPECIAL COURTS
• Children’s court
• Anti-corruption court
• Municipal court
• Courts-Martial

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 CHAPTER ONE
CRIMINAL LITIGATION
1.0 GENERAL INTRODUCTION
1.1 WHAT IS THE ROLE OF A LEGAL PRACTITIONER IN A TRIAL?
• The facts of a case exist in jumbled pieces: in the memories of witnesses, buried in
documents and reflected in physical exhibits.
• The legal practitioner must make sense of these pieces of facts by conceptualizing the
theme of the case, determining what facts will form evidence in court, plan the
presentation and effectively communicate the client’s story.
• The Advocate and the Prosecutor are central figures to the trial, they each have to
communicate their side of the story to the Court for determination.

1.2 WHY DO WE NEED THE LAW?

• Law ensures that there is a just and stable society.
• Law contains what a society has agreed can be done (permissible acts) and what cannot
be done (forbidden acts).
• Law binds the members of the community together in adherence to the recognized
values and standards.

1.3 WHAT DOES CRIMINAL LITIGATION COMPRISE?

• Criminal law – substantive law on crimes
• Law of evidence – obtaining facts and the means of proving them in court
• Criminal procedure – process by which criminal law is enforced
• Trial advocacy – skills involved in the litigation process.

1.4 CRIMINAL LAW PRINCIPLES

1.4.1 AIMS OF CRIMINAL LAW
1. To forbid and prevent conduct that threatens substantial harm to individual or public
interests;
2. To subject to public control persons whose conduct indicates that they are disposed to
commit crimes;
3. To safeguard conduct without fault from condemnation as criminal;
4. To give fair warning of the nature of the conduct declared to be an offence; and
5. To differentiate on reasonable grounds between serious and minor offences.

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1.5 CRIMINAL LAW PRINCIPLES
1.5.1 DEFINITION OF A CRIME
A public wrong - An act which generally has a particularly harmful effect on the public. Acts are
made crimes by legislation and judicial decisions.
A moral wrong - The traditional Common Law attitude was that crimes were immoral acts that
deserved punishment. Today, immoral acts are not all crimes.
Criminal proceedings - Due to the difficulty in defining the criminal quality of an act the
definition is sought from criminal proceedings; is the act prohibited by criminal consequences?

1.5.2 ELEMENTS OF A CRIME

It is a principle of Criminal law that a person may not be convicted of a crime unless the
prosecution proves beyondreasonable doubt:
• That he caused a certain event or state of affairs which is forbidden by Criminal law
(‘actusreus’ )
• That he had a defined state of mind in relation to causing the event or the existence of the
state of affairs. (‘mensrea’)

Exceptions to the rule of ‘mensrea ‘

• Strict Liability offences - Crimes which do not require intention, recklessness or
negligence as to one or more elements in the ‘actusreus’ are known as offences of strict
liability or absolute prohibition.
• Vicarious Liability offences - These are offences whose liability is visited on the suspect
for the acts of others e.g. principal and agent relationship.

1.6 CRIMINAL LAW GENERAL DEFENSES

• Infancy
• Mistake
• Insanity
• Intoxication
• Provocation, self-defense, duress, coercion and necessity.

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 CHAPTER TWO
NATURE OF CRIMINAL PROCEEDINGS
2.1 INTRODUCTION
The criminal process is undertaken by the State, which is the prosecutor; it investigates and is in
charge of criminal proceedings. The criminal process is believed to attach on public interest as
opposed to the civil process that attaches on individuals. Criminal proceedings are believed to be
of a public nature. Whenever criminal acts are committed the public generally is affected and the
public needs to be protected from criminal activity.

Protection of Public Interest - Underscoring the security that the general public would like to feel
that the State has capacity to protect the public. To secure the rights of the accused person – the
rights of the accused are found in Chapter 4 of the Constitution. The right of the victim to crime is
also to be considered. Increasingly there is need to recognize that the victim of crime has certain
rights that need to be protected.

The parties to criminal proceedings are the State as the main complainant and therefore it is
always the State versus the individual with the state representing all the citizens. In this regard
there is room allowed under the Criminal Procedure Code for individual prosecution. Citizens
who feel that the state is not willing to take up their cases and have to tender evidence in court
can approach court and the court at its discretion has to agree to allow the person bringing the
private prosecution whether to proceed. In criminal process there is the regime of criminal courts,
the structure and jurisdiction of the courts are clearly indicated firstly within the constitution.

2.2 STRUCTURE AND JURISDICTION OF COURTS

2.2.1 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,
magistrates’ courts & courts martial- Art. 169).

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2.2.2 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)].

2.2.2.1 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.

2.2.2.2 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 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 forcontempt 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

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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).

2.2.3 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 Judicature Act, Cap. 8 has
fixed the maximum number of Judges of Appeal at 14 [Section 7(2)].
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)].

2.2.3.1 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
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

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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.

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
courtto 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.

2.2.4 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

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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, and 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.

2.2.5 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)].
Courts-Martial are established under the Armed Forces Act, Cap. 199 which basically deals with
cases of discipline of members of Kenya’s armed forces. Acts of indiscipline under the Armed
Forces Act include mutiny, which attracts the death penalty. No more than this passing reference
to these latter courts is deemed necessary here.
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.

2.2.5.1 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

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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 district magistrate is empowered to hold a magistrate’s court of such class as is designated by
the Judicial Service Commission (Section 6).

A district magistrate’s court has and exercises such powers in proceedings of a criminal nature as
are for the time being conferred on district magistrates’ courts by-
i. the Criminal Procedure Code; or
ii. an order by the Chief Justice; or
iii. any other written law (Section 8).
NB: Any person convicted of an offence on a trial held by a magistrate’s court of the third class,
or where a person charged with an offence has been acquitted on such a trial, the “Attorney-
General” (read “Director of Public Prosecutions”) may appeal, by way of Petition, against the
conviction or sentence, or both, or against the acquittal, as the case may be, to the Resident
Magistrates’ Court (Section 10).

2.2.6 TRIBUNALS
Topic 2 of the Criminal Litigation Course Outline lumps magistrates’ courts and tribunals
together. 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.

2.2.7 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

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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.
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 Article 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.
The Office of the Prosecutor (Art. 42)-
• Acts independently as a separate organ of the Court.

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 • 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
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-

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 • 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 authorization 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 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 1st 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);

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 • 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-
• 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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 CHAPTER THREE
ARREST
3.1 INTRODUCTION
Criminal cases are initiated by a complaint being lodged. A complaint can be lodged with the
police. The complaints can also be lodged with magistrates and the proper clinical way is by way
of lodging a complaint with the police station which is recorded in the Occurrence Book in the
Police Station, it will record who the complainant is and what the complaint is. The decision to
file a case depends on the information in the OB, the police will take a statement from the
complainant, visit the scene of the incident and the police will lift finger prints, they will take
notes of any breakages if any, if it is a murder scene, they will make photographs of the scene and
make arrangements for the body to be examined by a pathologist. Once the police decide what
kind of offence has been committed, they draw a charge sheet.The police after all these decisions
have made can proceed and make an arrest of the suspect. The provisions are such that in most
cases the police can arrest a suspect without a warrant of arrest.

Arrest consists of the actual seizure or touching of the person’s body with a view to his detention.
It is a forcible restraint on a person’s liberty either on the basis of a warrant of arrest or power
donated by law. Arrest is the beginning of imprisonment. Arrest deprives the person the right to
personal liberty during the entire period of confinement.

3.2 ARRESTS WITHOUT WARRANTS

(a) By a Police Officer
Police have wide powers to be able to having detected crime to be able to apprehend the person’s
suspect of committing crimes.Under sections 29, 30 and 32 of the Criminal Procedure Code
(CPC) a police officer may, without an order from a magistrate and without a warrant, arrest any
person.
Under Section 29 – A police officer can arrest without warrant if the persons are;
(a) suspected of committing cognizable offenses(“cognizable offence” is defined under
section 2 of the CPC as “an offence for which a police officer may, in accordance with the
First Schedule or under any law for the time being in force, arrest without warrant)1;
(b) felonies;

1The First Schedule to the CPC lists the following as the offences in respect of which an arrest may be effected without a warrant: aiding,
abetting, counselling or procuring the commission of an offence, treason, misprision of treason, treasonable felony, treachery, promoting
warlike undertakings, dissuasion from enlistment, inciting to mutiny, aiding prisoner of war to escape, printing, etc., prohibited
publications, sedition, possessing seditious publication, using or attempting to use printing machine which has been confiscated, printing or
publishing newspaper in contravention of order, presence at and consent to administration of, or taking, oath to commit capital offence,
administration of unlawful oaths to commit capital offence, administering or taking unlawful oaths to commit other offences, compelling
another person to take an oath and piracy.

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 (c) breach of the peace;
(d) obstruction of police officers executing their duties;
(e) possession of suspected stolen property;
(f) deserter from the armed forces;
(g) possessors of implements of house breaking; and
(h) persons found in highways and streets in hours of darkness and suspects he is there for
an illegal purpose
(i) A person reasonably suspected of an offence outside Kenya and is to be extradited
(j) Possession of any implement of housebreaking
(k) Released convict in breach of supervision order (repealed)
(l) Reasonably suspected to have a pending warrant of arrest.

Section 30: An officer in charge of a police station may in the same manner arrest or cause to be
arrested—
Any person found taking precautions to conceal his presence within the limits of the station
under circumstances which afford reason to believe that he is taking those precautions with a
view to committing a cognizable offence.

Section 31-When an officer in charge of a police station requires an officer subordinate to him to
arrest without a warrant (otherwise than in his presence) any person who may be lawfully
arrested without a warrant under section 30. He shall deliver to the officer required to make the
arrest an order in writing specifying the person to be arrested and the offence or other cause for
which the arrest is to be made. It is only an officer in charge of a police station who can arrest a
person without a warrant. It must be in writing indicating the offence committed or likely to be
committed.

Section 32 – When a person who in the presence of a police officer has committed or has been
accused of committing a non-cognizable offence refused on the demand of the officer to give his
name and residence, or gives a name or residence which the officer has reason to believe to be
false, he may be arrested by the officer in order that his name or residence may be ascertained.
When one is arrested by police, they are supposed to give their true name and residence. The
police can charge one for giving false information or failing to cooperate.

Section 33- A police officer making an arrest - this means that if a person has been arrested
without a warrant of arrest then they should take the person to a police station. This usually

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happens mostly in Traffic Cases where one can be arrested and taken direct to the court. In most
cases where evidence is required, the police must take one to police station for proper
investigations.

Under the Police Act (Cap. 84)

Under section 16(2), any person who disobeys any lawful order given by any police officer
regulating and controlling traffic and keeping order on and preventing obstructions in public
places, and preventing unnecessary obstruction on the occasions of assemblies, meetings and
processions on public roads and streets, or in the neighbourhood of places of worship during the
time of worship therein shall be guilty of an offence, and may be arrested without a warrant
unless he gives his name and address and satisfies the police officer that he will duly answer any
summons or other proceedings which may be taken against him.
Under section 25(2), any person who fails to produce a licence on being required to do so by any
police officer in uniform, and any police officer not in uniform who produces his certificate of
appointment, may be arrested without a warrant if seen doing any act or thing; or in possession
of anything or is suspected of doing any act or thing or of being in possession of anything for
which a licence is required under any written law.
Under section 34,any gazetted officer or inspector may arrest without warrant, or order the arrest
without warrant of, any police officer (not being a police officer of a higher rank) who is accused
of any offence against discipline, and any police officer may, on receipt of any such order,
apprehend such police officer without a warrant, and shall forthwith bring him before a gazetted
police officer or an inspector, who may confine such police officer in any building set apart as a
guard room or cell.

Under section 41(2), upon reasonable suspicion that any person has deserted from the police
Force (i.e absents himself from duty without leave or just cause for a period exceeding twenty-
one days), any police officer may arrest him without warrant.

Under section 60(2), any police officer may arrest without a warrant any person who, within his
view, in any police building, police office, lock-up or cell behaves in a riotous, indecent,
disorderly, or insulting manner.

Under the Administration Police Act (Cap. 85)

Under section 10(3), a [police] officer may arrest without warrant a person who fails to obey a
reasonable signal given by an officer in uniform requiring him to stop any vehicle or vessel.

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Under section 11(2), a person who fails to produce a licence, permit, certificate or pass when
called upon by an officer so to do may be arrested without a warrant.
Under section 13, a [police] officer may without a warrant arrest a person:

(a) whom he suspects on reasonable grounds of having committed a cognizable offence;

(b) who commits a breach of the peace in his presence;
(c) who obstructs an officer while in the execution of his duty or who has escaped or attempts
to escape from lawful custody;
(d) in whose possession is found anything which may reasonably be suspected to be stolen
property or who may reasonably be suspected of having committed an offence with
reference to that thing;
(e) whom he suspects upon reasonable grounds of being a deserter from the armed forces or
the National Youth Service;
(f) whom he finds in any highway, yard or other place during the night and whom he
suspects upon reasonable grounds of having committed or being about to commit a felony;
(g) having in his possession without lawful excuse the burden of proving which excuse shall
lie on the person, any implement of housebreaking;
(h) for whom he has reasonable cause to believe a warrant of arrest has been issued.

(b) Chiefs
Section 8(2) of the Chiefs’ Authority Act (Cap. 128) provides thatany chief or assistant chief
knowing of a design by any person to commit an offence within the local 1imits of his jurisdiction
may, if it appears to him that the commission of the offence cannot be otherwise prevented, arrest
or direct the arrest of such person who, without delay, should be taken to the nearest police
station.
In Lamabutu v R the court recognized chiefs, assistant chiefs, PCs and DCs as police officers.

(c) Officers of the National Assembly

The National Assembly (Powers and Privileges) Act (Cap. 6) under section 30 bestows upon
every officer of the Assembly (defined to include any officer of the Assembly, any person acting
within the precincts of the Assembly under the orders of the Speaker and any police officer on
duty within the precincts of the Assembly), for the purposes of the Act and of the application of
the provisions of the criminal law, all the powers and privileges of a police officer.

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 (d) Arrest by Private Person
Under Section 34(1) of the Criminal procedure Code a private person may arrest any person
who in his view commits a cognizable offence, or whom he reasonably suspects of having
committed a felony.
Under Section 34 (2) persons found committing an offence involving injury to property may also
be arrested without a warrant by the owner of the property or his servants or persons authorized
by him.
The private person arresting another person without a warrant is then required without
unnecessary delay to make over the person so arrested to a police officer, or in the absence of a
police officer shall take that person to the nearest police station as provided for under section
35(1) of the CPC.The police, depending on the circumstances, should re-arrest him or set him
free. Under section 38, a magistrate may order any [private] person to make an arrest.

Private persons should use reasonable force just like police where the person to be arrested
resists. Use of excessive force may lead to prosecution for assault and unlawful confinement
contrary to section 250 and 261 of the Penal Code (Cap. 63) respectively

In Uganda v. Muherwa2, a private person who used a weapon to incapacitate the deceased
suspected to be a thief in the process of which he died was prosecuted and convicted of
manslaughter.
In Beard and Another v R, the appellants (two private persons) who had arrested the
complainant, tied him and assaulted him although he made no attempt to escape were
prosecuted for and convicted of assault and unlawful confinement as they used unreasonable
and unnecessary force.

(e) Arrest by Magistrates

Section 38of the CPC empowers the magistrate to personally arrest an offender or order any
person to do so when an offence is committed in his presence or his jurisdiction. He may
thereafter release the offender on bail or commit him to custody.
Section 39 empowers a magistrate to arrest or direct the arrest in his presence, within the local
limits of his jurisdiction, of any person for whose arrest he is competent at the time and in the
circumstances to issue a warrant.
Section 42 provides thatevery person is bound to assist a magistrate or police officer reasonably
demanding his aid in the taking or preventing the escape of another person whom the magistrate

2[1972] E.R. 466

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or police officer is authorized to arrest and in the prevention or suppression of a breach of the
peace, or in the prevention of injury attempted to be committed to any railway, canal, telegraph
or public property.
It was stated in the case of SaidiBakariKionywaki v. Republic3that in effecting an arrest,
magistrate acts as a judicial officer and not in an administrative capacity and cannot be subject to
civil and criminal proceedings.

3.3 ARRESTS WITH WARRANTS

(a) Under the CPC
Are mainly required for minor offences and misdemeanors (less than 3 years). Warrants of arrest
are issued to secure attendance of person in court. This procedure of securing attendance is
applied mainly in cases where the proceedings are commenced by first laying a charge in
court.As an alternative to an arrest warrant, the prosecution can apply for summons to issue
against the accused person.Under section 90 with respect to private prosecutions upon receiving
a complaint fled by private prosecutors, the courts may either issue summons to accused or
warrant to compel attendance in court. The proviso to section 90 states that a warrant will only be
issued when a complaint is made by the private prosecutor.

Under section 100 a warrant of arrest may be issued to a person served with summons to appear
in court.Under Section 101 warrants of arrest are issued where the accused disobeys summons.

Section 102 provides for a warrant of Arrest. It states that every warrant of arrest shall be under
the hand or a Judge or a Magistrate issuing it. This means it must be in writing and bear the seal
of the court and state the offence for which it is being issued. It shall also state the name and who
is supposed to implement that warrant of arrest, it can be addressed to the Officer in charge of a
police station and it will also state that whoever the warrant is addressed to shall apprehend the
person against whom it is issued and that person will then be taken to court.
The warrant is directed to the Police Officer against the suspect and the witness. The warrant
will stay in force until it is executed or cancelled by the court which issued it . If the warrant is
issued the court will make an order and it shall be mentioned in 14 days time, if the person is not
apprehended the court will keep on mentioning until the suspect is brought before court.

InKingori s/o Kiranditu v R, it was stated that any person or police officer to whom warrant is
issued is bound to execute it like the court which issues the warrant, he is protected by judicial

3[1968] E.A. 195(T)

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immunity.
Under Section 103(1) the court issuing a warrant in respect of an offence other than murder,
treason or rape may direct by endorsement on the warrant that, if the person executes a bond
with sufficient sureties for his attendance. An omission is that if somebody was charged with
robbery with violence the police would not be able to release them since the offence is not
bailable. The endorsement will state the number of sureties and the time at which the suspect is
to attend court will be indicated. The court is the one that sets the bail terms. Court has
discretion to determine the kind of bail they can award to the suspect. Whenever security is
taken the officer to whom the warrant is directed shall forward the bond back to the court. Bail is
an agreement between the accused and court that the accused shall appear when required in
court. Sureties are also an agreement that they guarantee that the accused shall appear in court
when required.

Section 104 says that the warrant may be directed to one or more police officers within which the
court has jurisdiction or generally to all police officers of the area.
For example if it is desired that one has to be arrested immediately and the court cannot get the
police officer to execute the warrant the court can direct the warrant directly to the Kenya School
of Law to execute it. Even land owners can have warrants directed at them for execution. in
practice the court will issue a warrant and direct it to the OCS, it is the OCS who direct a certain
officer to execute the warrant.

Section 106: The officer shall notify the substance thereof to the suspect to be arrested, it means
that when one is to be arrested they must go to the suspect and tell them they have a warrant and
explain for what the warrant has been issued. The idea is that the practice should be to show the
suspect the warrant of arrest, it is fundamental that a suspect should know the substance of the
complaint against them. There should be no ambush by the process, a suspect must be well
aware of what they are being arrested for.
Once somebody has been arrested, the police officer shall without unnecessary delay bring the
suspect to court without delay. If the warrant of arrest is issued in Nairobi and it is circulated all
over the country so that any police officer who receives the warrant wherever they are can arrest
the suspect. The police if they cannot take you back where the suspect is required can take you to
the nearest court so that a suspect is not unduly kept in police custody awaiting action by a
specific court.

By virtue of section 107 the person effecting arrests should notify the substance of the warrant to

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the suspect and if he is required b y the suspect and show him the warrant.

Section 21 CPC makes provisions for what an arrest is, the police officers are allowed to have
bodily contact with the person that they are arresting. Section 21 (1)In making an arrest the police
officer or other person making it shall actually touch or confine the body of the person to be arrested, unless
there be a submission to custody by word or action. They will touch you and handcuff the suspect.

Section 21(2) is if a suspect resists arrest, the police officer may use all means necessary to effect
the arrest. The key word is forcibly resisting arrest, if one is not forcibly resisting arrest, the force
used by the police to arrest the suspect will be different from when arresting a suspect trying to
evade arrest, reasonable force is measured against the kind of resistance that a person is
demonstrating against the police. The police cannot justify shooting a suspect on the head if
they are running away but if they shot on the leg they can argue that that was reasonable force.
What is reasonable depends on the particulars of the case, there are no hard and fast rules to
govern all inevitable circumstances. Where the force used is unreasonable, the police officer is
liable to be charged with offences arising from their attempts to arrest a suspect.

Sometimes apprehension is by the citizens and where this happens the police have to re-arrest
the person and make a report in the OB as pertaining to the circumstances of the arrest. The
police have to establish whether an offence has been committed. In the case where somebody is
supposed to be arrested and they are hiding, Section 22(1) gives provision that if any person,
acting under warrant of arrest or any police having authority to arrest, has reason to believe that
the person to be arrested has entered into or is within any place, the person residing in or being
in charge of that place shall, on demand of he person so acting or the police officer, allow him
free ingress thereto and afford all reasonable facilities for a search therein. A warrant of arrest
must be issued by the Court. The police go to court and make an application to be issued with a
warrant of arrest and if satisfied the court will issue a warrant of arrest.

Section 22 imposes duty on an occupant of premises or any person in charge of premises to

afford all reasonable facilities of arrest i.e. to allow the person to enter premises discharging a
warrant arrest, i.e. to allow the person to enter promises to effect an arrest if there is a reasonable
suspicion that the suspect is in those premises. The facilities should also be provided to such
persons to enable them to search the premises. Where access is not allowed, the officers may
break in even without a warrant.

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Under section 22(2) women in occupation of premises who are not suspects and who by custom
do not appear in public should be given reasonable facilities to withdraw (Muslim Women). This
provision is to protect a cultural right that some women have so that it may not be violated.

Section 23 makes provision where the police may have entered into the house and they are
locked in. Once again they are given authority to break out.

Section 24 makes provisions for persons already arrested not to be subjected to more restraint
than necessary. It means that if somebody is cooperating there is no reason to actually use
restraint like handcuffs on them. Where members of the public make arrest, since they don’t
have handcuffs they usually tie suspects in ropes, this provision do not allow use of violence in
the arrest of a suspect and the only authority to use force is only where there is resistance.

After somebody is arrested, Section 25 makes provisions for the search of anyone who is
arrested. These provisions will later be tied to the provisions on bail. Police have power to release
a suspect on bail and it is only where offences are not bailable or where the law states that the
offences are not bailable, the police can give bail.

Where upon search the police finds something else not part of what they were searching, the
police have power to arrest the suspect on this other offence, for example if they were searching
for drugs and found a gun they are allowed to charge you for having an illegal firearm. The
police are given power to make searches of places that could be used to conceal criminal
activities.
Under Section 26 police are given powers to detain and search vehicles, aircrafts etc. They may
stop, search and detain. These powers are not given generally to the public the power to arrest is
not given to private citizens, these powers can only be exercised by police or private citizens who
have been authorised by the commissioner of police and they can stop, search and detain, but
they must have reasonable suspicion that something illegally acquired is in the vehicle.

Section 26(b) – any aircraft, vehicle or vessel which there is reason to suspect has been employed
in the commission or to facilitate an offence – the powers can be used even after the fact where it
is suspected that an offence has already been committed.

Section 26(2) No person shall be entitled to damages for loss suffered by him in respect of
detention of an aircraft or vehicle. These provisions appear draconian as they give police a lot of

Mayende Page 26
powers, where police can detain a vehicle for even up to a week and if one is in business they are
likely to suffer and have no way to challenge the decision or apply for compensation.

Section 27 makes specific provisions on how women are to be searched. Whenever it is

necessary, the search is to be made by another woman with strict regard to decency.

Section 28 makes specific provisions about the power to seize offensive weapons so that in the
course of making an arrest the officer can take the offensive weapon, and hand them over to the
respectful persons. The lacuna is that there is no guarantee that the person from whom the
offensive weapon is taken will be charged with possession of offensive weapon, what really
consists an offensive weapon? If the police consider that it amounts to a criminal offence to be in
possession of the weapon, they may charge one with possession of an offensive weapon.

In Kenya if the police wanted to search a premise without a warrant, one can go to court and
complain, but usually police will go to court and obtain a warrant. Under the Evidence Act there
are provisions that where evidence is unlawfully obtained it cannot be used in court.

Section 123 gives power to the police to issue bail at the police station. Once a suspect is taken to
court depending on why the warrant was issued, a plea will be taken and depending on the kind
of charges a suspect may be released on bond. If one is a witness and they didn’t come to court
having been bonded the court deals with one based on the confines of the law and the court can
decide whether or not to penalise for failing to come to court or to just warn. If the court decides
to penalise, they can fine one, or imprison one or whatever it deems fit.

(b) Under the Administration Police Act (Cap. 85)

Under section 8(c), every [police] officer is empowered to apprehend all persons in respect of
whom he holds a valid warrant of arrest.

3.4 CONDITIONS OF ARREST

• Reasonable force be used when a person resists arrest.
• It is necessary to inform the person the reason for arrest
• While in detention, the suspect is entitled to legal representation upon request and visitation
by relatives.

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3.5 INTERNATIONAL STANDARDS OF ARREST
• Universal Declaration on Human Rights 1948, Article 3 prescribes guarantee to personal
liberty.
• International Convention on Civil and Political Rights (ICCCPR) 1966, Article 9 provides;
“no-one shall be deprived of his liberty except on such grounds and in accordance with such
procedure established by law.”

3.6 PRE-ARRAIGNMENT DETENTION: CASE-LAW

The jurisprudence emerging from the High Court and Court of Appeal is contradictory as to
when and how the question of the legality of the intervening period between arrests, detention
up to arraignment is determined.The courts are unanimous that if the suspect has not been
brought to court within the lawful period, the prosecution must account for the delay to the
satisfaction of the Court.
If the reasons are not satisfactory, or no explanation is advanced, then the suspect is discharged
and proceedings declared a nullity.

WanyiriKihoro vs. A.G CA 151 1988 – It was held that the Court should note the condition of the
suspect as to whether he/she has injuries, complaints or requests made by him. The Court record
of the Trial Court should be legible and clear to reflect all matters raised at the initial stage as it
considers the period of detention.

The land mark case on pre arraignment detention isAlbanusMwasiaMutuaVs Republic CA 120 of
2004 -2nd appeal. The accused person was convicted on attempted robbery with violence. The
accused was arrested on 17/6/2000 and arraigned on 19/2/2001.There was delay of 8 months,
the prosecution offered no explanation. Section 72 (3) of the Constitution was upheld.

NdedevsRepublic CA 1991 KLR 567 -2nd Appeals, the accused person was arrested on 29/9/97
and held in comunicado for 30 days and not charged. He was brought to court and he pleaded
guilty and was sentenced. On appeal sentence was reduced. 2nd appeal, Court held Section 348
CPC not a bar. Appeal allowed as constitutional right was violated.

Gerald MachariaGithukuvs Republic CA 119 of 2004, 2nd appeal; accused person convicted on
robbery with violence. Arrested on 13/1/95 arraigned on 30/1/95. The delay of 3 days was not
explained. The appeal was upheld. The court said it had the duty to punish crime, but also
uphold constitutional rights.

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Republic vs James NjugunaNyaga HCT Cr Case 40 of 2007, Counsel for the accused person raised
a preliminary objection against the Attorney General. The suspect was arrested on 12/2/07 for
being in an illegal organization and was kept in custody for 5 months. A habeas corpus Misc
application 436 of 2007 was filed and the suspect was produced and charged with the offence of
murder on 14/6/07. The suspect was held in custody illegally for 105 days after the mandatory
14 days. The preliminary objection was upheld by the High Court and the proceedings of the case
were stopped. They were a nullity. No stretching of argument can justify illegal detention.

Anne Njogu& 5 others Vs Republic HCT Misc Criminal Application 551 of 2007, on 1/8/07 the
Misc. application was filed, heard on 2/8/07. The applicants were arrested on 31/7/07 at 12 noon
and were not brought to court until 2/8/07 when advocates blocked taking of pleas in the
magistrate’s ct pending the outcome of the High Court application. The applicants were not
arraigned in court within the statutory 24 hours. The Misc. application was upheld and
proceedings held to be a nullity.

David KarobiaKiiruvs Republic HCT Misc App 863 of 2007 .The applicant sought the trial in the
magistrate’s court quashed due to unlawful detention. Similarly the High Court directed that an
application on the arrest and detention of a suspect is a matter of fact to be raised in the Trial
court as it is the tribunal of fact; so as to allow for an explanation and if a question of
interpretation of the Constitution arises then it is referred to the High court.

Samuel NdunguKamau and anothervs Republic C.A.223 of 2006, 1st appeal, the accused persons
were convicted of murder. The appellant raised issue of unlawful detention. The Court of Appeal
stated that the court exercised appellate jurisdiction in both civil and criminal matters. Therefore
the question of arrest and detention should be raised first in the Trial court. At this stage it may
not be possible to verify the truth. This ground of appeal was dismissed.

The Court of Appeal delivered on 22nd February 2008 and the accused was convicted of robbery
with violence. On appeal raised unlawful detention ground. Paul MwangiMurungavsRepublic
(UR) Criminal Appeal No. 35 of 2006 and stated;
“…Under section 72 (3) of the Constitution, the burden to explain the delay is on the prosecution, and we
reject any proposition that the burden can only be discharged by the prosecution if the person accused
raised a complaint. But if in the case the prosecution does not offer any explanation, then the court, as the
ultimate enforcer of the provisions of the Constitution must raise the issue.”

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Dominic MutieMwalimuVs Republic C.A. 217 of 2005, the appellant was convicted of robbery
with violence. The 2nd appeal and raised issue of unlawful detention. He was arrested on
4/2/2004 and arraigned on 20/2/2004. He did not complain and prosecution did not explain.
The Court of Appeal stated, the issue of unlawful detention of 2 days beyond the mandatory 14
days was not raised in the trial court or in the 1st appeal. The prosecution was not given an
opportunity to explain the delay. The ground of appeal had no merit. The mere fact that one was
unlawfully detained is not ipso facto violation of a constitutional right.

Republic Vs Samuel MbogoNdwiga&another HCT 55 of 2001, the accused persons charged with
murder, raised preliminary objection of arrest from 2000 and charged in 2007. The explanation
was, there were committal proceedings (now repealed) they were charged in court, a nolleprosequi
wasentered on the murder charge. An inquest was conducted, a ruling was given and accused
persons were charged again. The record was not clear on when the accused persons were
arrested. The High Court held , the mere fact of detention beyond the requisite period is not
unconstitutional, there should be reasonable explanation for the court to determine if the accused
persons were brought to court as soon as was reasonably practicable.

David WaiganjoWanainaVs Republic C .A .113 of 2005, The Court of Appeal allowed the appeal.
There was a delay of 9 months between arrest and arraignment. The court stated the long delay
was not explained. The Accused person was set free.

3.6 WHEN SHOULD THE ISSUE OF UNLAWFUL DETENTION BE RAISED?

Paul NjehiaVsRepublic HCT 96 of 2005, the accused person charged with murder. After the close
of Prosecution case and ruling on a case to answer, the defense raised the issue of unlawful
detention. He was arrested on 21/4/2005 and arraigned on 4/10/2005 High Court held: There
are 2 competing interests; section 71 and 72 (3). The defense heard 11 witnesses including
Arresting and Investigation officer; the trial went on for 2 years and the defense did not raise the
issue. At this stage, the prosecution is not accordedan opportunity to explain. The timing did not
accord the prosecution the opportunity to explain the detention. The objection was dismissed and
defense hearing proceeded.
In Republic vs Joseph NdiranguNungari and another HCT 42 of 2006, the accused persons
charged with murder, at the close of the prosecution case, defense raised preliminary objection on
unlawful detention. The investigating officer filed an affidavit on the delay. The High Court
stated preliminary objections maybe raised at any time but this is more in civil cases than

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criminal ones; Criminal trials are matters of public interest, and each case determined on its
peculiar circumstances. The application / objection be raised at the earliest stage. The court has to
balance rights of accused persons and victims. The preliminary objection dismissed.

Republic VsTalibAbubakar&others Criminal Revision No 1 of 2008, the High Court dealt with
the following issues;
The suspects were arraigned in Magistrate’s court on being in possession of explosives. The
courts declined to admit the case. The Director of Public Prosecution (DPP) invoked revisionary
jurisdiction of the High Court. The basis was right to prosecute under section 26 of the
Constitution. The prosecution could explain unlawful detention.
The High Court held;
The Magistrates’ courts should take pleas in spite of the unlawful detention issue, and afford, the
prosecution an opportunity to explain the delay.Section 72(3) outlaws unlawful detention but
with an exception; an opportunity to explain the delay.Whether, the detention is unlawful is a
judicial question to be determined on legal principles after hearing parties.Whereas the High
Court determines questions of interpretation of the Constitution, facts that affect the
Constitutional decision are best determined in the Magistrates’ court.

Republic Vs Arafat Daudi HCC 91/2005

The applicant was charged with murder. A preliminary objection was raised based on unlawful
detention. The applicant was arrested on 3/2/05 arraigned on 15/9/ 05. There was 7 months
delay. The issue was raised after close of prosecution case and ruling that accused has a case to
answer, and court was ready to hear the defense. HCT held; the prosecution was denied the
opportunity to offer explanation on delay. It is not delay per se that is fatal; rather it is failure to
satisfactorily explain.

Republic VsAndelinaGatwiriMarithi& Others HCC 45/2008

The accused persons were charged with murder, a preliminary objection raised as to unlawful
detention. The investigation officer summoned and did not turn up. The court found that in the
absence of the witness it was not clear what happened. The court was not sure whether the
unlawful detention was by design and therefore dismissed the objection.

3.7 CONCLUSION
• Pre arraignment detention must be in accordance with the stipulated timeframe provided
in the Constitution.

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 • In case of delay; the issue may be raised as a preliminary objection at the earliest
opportunity in the Trial court; by way of an oral or written preliminary objection.
• The Trial court on its own motion may also question the delay based on the contents of
arrest in the Charge/Sheet.
• The Court of Appeal will deal with unlawful detention after it is raised in the Trial court
and/or 1st appeal.
• The prosecution/police/state counsels have an opportunity in law to give an
explanation.
• The court will determine on the basis of specific circumstances of the case, if the delay
was unconstitutional. The explanation should be to the satisfaction of the court.
• Although, preliminary objections can be raised at any time in the proceedings; it is not
designed to terminate proceedings and should accord the prosecution an opportunity to
explain.
• The application for unlawful arrest can be filed in the High Court. By which means?
• The Constitution allows compensation for unlawful detention
• The application for unlawful detention where one has not been produced in court can be
lodged as a miscellaneoushabeas corpus application and also violation of unlawful
detention.

CHAPTER FOUR
IDENTIFICATION PARADES
4.1 DEFINITION

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An identification parade is a process or forum organized by the police in which a suspect is lined
up together with eight other persons who are of the same height, age, general appearance and the
same class of life as the suspect and, a witness or witnesses are asked to identify whether or not
the accused or the suspect is present in that line-up in a bid to ascertain if it is the suspect who
committed the crime he/she is accused of.
In Njihia v Republic4where the complainant stated that he had identified the appellant then at an
ID parade in which the appellant and two other suspects had been lined with eleven other
persons and in the court during the trial, the Court of Appeal held that the ID parade conducted
in this case was not proper because contrary to the ratio of one suspect to eight persons which is
stipulated in the Police Force Standing Orders, three suspects had been lined with eleven others.
This was mathematically too low a ratio to exclude the chance of random guesswork.
The court observed that Police Force Orders require a ratio of one to eight as the minimum; and
indeed in many parades the ratio is between one to ten and one to twelve.

4.2 PURPOSE
The importance of identification evidence cannot be negated in criminal procedure. Without
prior identification of a suspect who later becomes the accused person, there cannot be a proper
conviction. Therefore, it is a trite law that an accused person must be clearly identified. If there is
no identification then the accused cannot be convicted unless there are other factors connecting
him with the offence.
In R v. Mwango5, it was held that an identification parade must be conducted when the identity
of an accused is doubtful. However, where a suspect is known to the witness then there is no
need for an ID parade to be conducted as this becomes an instance of recognition as opposed to
identification of the suspect.
In Ajode v. Republic6, the Court of Appeal comprising Gicheru CJ, O’Kubasu JA and Otieno
Onyango Ag JA, held that it is established law that there is no need for an ID parade to be
conducted in cases where the witness knows the suspect as the witness will merely be merely
demonstrating his recognition of the suspect and will not be identifying him.
So that in

The purpose of conducting ID parades can be said to be twofold:

a) They are held to enable eye witnesses identify suspect/suspects whom they allegedly saw
prior to a trial being held.

4 [1986] KLR 422

5 (1936) 3 EACA 29
6 [2004]2KLR 81

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This is fundamental because dock identification is generally considered to be valueless unless a
properly conducted ID Parade is held to justify the suspects being charged with the crime as
stated by the Court in Ajode vs. Republic7. The court further held that a court should not place
much reliance on dock identification unless it has been preceded by properly conducted
identification parade.
In Wafula& 3 Others vs Republic8the court held that there had been a failure on the part of the
police to investigate the case properly, particularly the failure to conduct identification parades
so that the dock identification by the witness nearly 14 months after the commission of the crime.
This identification was therefore valueless.

b) They are held to facilitate due process which is a fundamental requirement in criminal
law.
Article 50(2) of the Constitution of Kenya 2010 cements an accused person’s right to a fair trial.
This right can be said to include the right to have an ID parade conducted in accordance with set
down procedure prior to the accused being charged.
The Kenya Police Force Standing Orders at Form no 156 has set down procedures which if
flouted will negate the validity of an ID parade and will lead to the release of the accused as they
cannot be properly convicted because their constitutional rights were trampled upon.
In the case of John MusyimiMutua&WambuaMutie V Republic9 where witnesses identified one
appellant in an identification parade two years after the crime and no Identification parade was
conducted for the second appellant. The court held that the Admissibility of such identification
was shaky and could not be relied upon. The conviction of both was quashed. In essence this
illustrates that identification evidence is an essential aspect in criminal procedure, for a proper
conviction.
Identification parades are held where:

The police have sufficient information to justify the arrest of a particular person for
suspected involvement in an offence, and;

An eye witness has identified or may be able to identify that person, and;

The suspect disputes his identification as a person involved in the commission of that
offence or where a dispute as to identity may reasonably be anticipated.

4.3 EXCEPTIONS TO IDENTIFICATION PARADES

a) Where suspect does not consent

7Ibid . See also

8 [1986] KLR 627
9

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 b) Where it is impracticable to assemble people who resemble the suspect.
c) Where the eye witness cannot identify the offender,
d) Where the case is one of pure recognition of someone well known to the witness.

4.3.1 RELEVANT REGULATIONS

a) Evidence Act (Cap.80) Laws of Kenya.
b) The police Act (Cap.84) Laws of Kenya.
c) Force Standing Orders (1974)

4.3.2 THE EVIDENCE ACT 10

Direct Oral evidence under section 63(1) Oral evidence must in all cases be direct evidence.
Under Section 63(2) for the purposes of subsection (1), “direct evidence” means with reference to
a fact which could be seen, the evidence of a witness who says he saw it.

4.3.3 THE POLICE ACT11

The Police Act (Cap 84) sets out the rules that are to govern the conduct of identification parades.
It is provided in section 5 and section 64 as follows;
‘5(1): The Commissioner may issue administrative orders, to be called Force Standing Orders, not
inconsistent with the Constitution or the provisions of this Act or of any regulations made thereunder, for
the general control, direction and information of the Force.’

‘64: Every police officer shall be subject to the Force Standing orders and to the provisions of the code of
regulations for the time being in force, so far as the same are not inconsistent with the provisions of this
Act or of any regulations or Standing orders made thereunder.’

The method of identification was first set out by the rules in the Kenya Police Order 15/26.This
was the initial law governing the conduct of identification parades in Kenya. It was set out by the
Police Commissioner with initial instructions from the Chief Justice early in the 1950’s. It was
recently amended in 1974 and labeled as Chapter 46 of the Police Force Standing Orders,
paragraph 6. They are contained in a separate book containing the rules guiding the police force
in administrative matters. Police Form 156 is used for the conduct of identification parades and is
designed pursuant to the Force Standing Orders. Such administrative orders are not required to
be published in the Kenya Gazette.

10 Chapter 80 Laws of Kenya

11 Chapter 84 Laws of Kenya

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4.3.4 FORCE STANDING ORDERS
This order provides for the procedure for conducting identification parades under Order 6, and
are as follows:
a) Suspect must be informed of the reason for the parade,
b) Suspect may have a solicitor or friend present,
c) Investigating officer should not conduct the identification parade, though he may be
present,
d) The accused should be placed amongst at least eight persons,
e) Such persons should be of similar age, height, general appearance and class of life as
himself,
f) If accused is suffering from any disfigurement steps to be taken to ensure that its not
apparent,
g) Accused should be allowed to take any position on the line up and allowed to change the
same after the first identifying witness has left, if he so wishes,
h) Care should be exercised that witnesses do not communicate with each other,
i) Every unauthorized person should be excluded,
j) If witness desires accused to walk, speak or put on his hat, then he should do so, but the
whole parade should do the same,
k) The conducting officer to ensure that witness identifies the person without possibility of
error,
l) At termination/during the parade conducting officer should ask suspect if he is satisfied
with the manner in which the parade is being/has been conducted,
m) Make a note in writing in his reply,
n) Witness should be told he will see a group of people and suspect may or may not be
there,
o) Witness should not be told to pick out somebody, or be influenced in any way
whatsoever,
p) Careful note must be recorded after each witness has left, stating whether witness
identified the person and state the circumstances at hand,
q) Comments by accused should be recorded by the conducting officer, especially after he
has been identified,
r) Parade must be conducted with scrupulous fairness, or else value of the identification
parade will be lessened or nullified,
s) Police officers should not make up the parade, unless they are accused.

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4.4 PRELIMINARY ISSUES
Evidence of identity (visual identification of the suspect) is often an expression of an opinion that
a person seen at one time (in Court) is the same person as was seen at some other time (during
the commission of the crime). This evidence is admissible in a criminal trial, whether the
identification took place during the crime or at an identification parade.The criminal process
commences when a report / complaint is lodged at the Police station or an arrest of a suspect (s)
is made and he is detained at the Police Station.

Once the report is made by the Complainant, the police officer records the information in the
Occurrence Book (OB). Investigations are launched to determine whether an offence is disclosed,
whether there is sufficient evidence and if the matter should be resolved in court.Often times,
complaints that disclose sufficient evidence that offences were committed after investigations are
conducted by the police are lodged in court for determination.

Identification parades to establish the suspect (s) in the commission of the crimes is crucial and it
is one of the most important processes in the conduct of investigations. If the police have arrested
a suspect on the basis of other evidence and there are witnesses who indicate that they might be
able to make an identification of the suspect, then an identification parade should be conducted
for positive identification.Where a witness confirms that he witnessed the commission of the
crime and witnessed a suspect committing the said crime and could identify him, then an
identification parade is conducted by Police to verify the witness’s claim and test its
veracity.Evidence of identification of suspects may take different forms. Difficulties arise in
respect of visual identification by witnesses.

If the witness states that he recognized the suspect during the commission of the crime, the
identification parade is not conducted. During trial, the court will evaluate the circumstances
under which the crime occurred and determine if there was positive recognition of the suspect by
the witness. Recognition maybe more reliable than identification of a stranger, but even where a
witness purports to recognize close relatives and friends, mistakes are sometimes made.Where
the offenders are identified close to the time and scene of the crime, identification parades are not
useful. In terms of the timing it is unlikely that there is mistaken identity of the suspect as he is
caught in the act.

4.5 FACTORS INFLUENCING THE IDENTIFICATION PARADE

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Before the procedure that takes place at the identification parade is ventured into, certain
important factors must be addressed. These are the factors that the court will take into account in
finding out whether the accused is the perpetrator of the crime. Also when an issue arises
concerning the conduct of the identification parade, these factors will be addressed.

The most basic and key question that the identification parade must address is, ‘Does it [the
identification given by the witness] place the accused at the scene of the crime?’ This is the
question that will be answered by the factors that shall now be discussed.

4.5.1 DESCRIPTION OF THE PERPETRATOR

The prosecution should not rely wholly on circumstantial evidence unless there are no co-
existing circumstances that would weaken or destroy the inference.12

The guilt of the accused should not be based on suspicion. Suspicion, however strong cannot
provide a basis for inferring guilt which must be proved by evidence.13 In the case of R v
Manyara14 it states that there must be evidence pointing out the guilt of each and every person
otherwise it will be a case of ‘mob justice’. The case also points out that;
‘It must be remembered that it is not enough for the police to round up as many suspects as possible when a
serious crime occurs and arraign them in court without having carried out sufficient investigations as
would reveal the involvement of each and every accused person in the commission of the offence as charged
with.’

The identification should not be based on public sympathy.15

Positive Identification: If a witness is unable to identify an accused person at the identification
parade, they cannot then purport to identify them at the dock.16 Positive identification will be
said to have taken place where the complainants attend several identification parades but are
unable to point out any other person other than the appellant.
The Initial Report:It should contain a description of the accused persons.

Safe and Free From Error

(a) Nature of the light

12 Blackstone’s Criminal Practice, 1995 Edition F1, 10 at page 1777

13Mary WanjikuGichira v R Criminal Appeal no. 17 of 1998 and restated in Joan ChebichiiSawe v R Criminal Appeal no. 2 of 2002.
14 Criminal case No. 52 of 2004 in the High Court of Kenya at Nakuru
15 Ibid. ‘A court of law must resist the temptation to convict on public sympathy or any other consideration but proper evidence, direct or circumstantial.’
16 In R v Manyara it was held that ‘Dock identification is insufficient unless the accused was previously known to the accused.’

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The question here is usually whether there was sufficient light to enable identification of the
assailant.17 This will then determine whether the witness had an opportunity to observe the
perpetrators so as to be able to comfortably identify them subsequently.18 In Maitanyi v R19 it
was stated that;
‘It is at least essential to ascertain the nature of the light available. What sort of light, its size, position
relative to the suspect are all important matters helping to test if one of these matters are unknown because
they were not inquire into by the trial magistrate.’

Other considerations of light could be; how bright was the light? How far was the light from the
persons identified? What was the intensity and size of the torchlight?’20The nature of the light has
a lot of bearing on the credibility of the identification. For example if the only source of light was
torches being shown from side to side.21 There is a high possibility of error in such identification.
In Muiruri& 2 others,22a correct ID of the attackers was facilitated by the fact that the torchlight
was adequate as the inner walls of the house of the witnesses were painted white and the light
was reflected on the faces of the attackers as a result. Another example is where there are security
lights outside a place such as a bar and electricity lights inside the bar then such a bar can be said
to be well-lit.

This can be answered depending on whether the witness spent sufficient time with the
perpetrators and whether they were alert during the whole ordeal so as to observe each and
every move of the accused persons’.

(b) Conditions present during the commission of the offence

It is vital whether the commission of the offence took place at night or during the daytime. The
issue of light will then come into question when determining the accuracy of the description of
the attackers where the offence was committed at night.

17 In R v Manyara it was stated ‘ There was no indication whether at Kivumbini area where accused number 8 and…were arrested there was sufficient light as

would have enabled the police to identify the accused number 8 appropriately.’
18Paul ThuoMburu&another v R (2008) eKLR; Criminal Appeal 329 of 2006 in the Court of Appeal of Kenya at Nairobi
19 (1986)KLR 198
20 Simon KihanyaKairu& Another v R 2006 eKLR; Criminal Appeal 99& 100 of 2004
21Nicodemus Mwita &another v R Criminal Appeal 328& 323 of 2006; 2008 eKLR
22 Criminal Appeals No’s 117,131,133 of 2000(consolidated). See also John WachiraWandia, Fredrick JumaMuriuki v R Criminal Appeal 57 and

58 of 2004 in the Court of Appeal of Kenya at Nyeri at page 2& 3.

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 The evidence of identification at night must be tested with the greatest care.23
The appearance of the robbers is important. The issue here is whether they had concealed their
identity, for example, by wearing disguises.The length of time spent with the robbers is also vital.
In R v Turnbull,24it was stated
‘…when the identification is made after a long period of observation, or in satisfactory conditions by a
relative, neighbour, close friends, workmate, the jury can safely be left to assess the value of the
identification evidence even though there is no other evidence to support it; provided always, however, that
an adequate warning has been given about the special need for caution…if the identifying evidence depends
on a fleeting glance or a longer observation in difficult conditions [an error exists]’

If the witnesses had a conversation with the robbers at close proximity, then the identification
islikely to be more credible.25
(c) For the identification parade evidence to be free from error, the identification parade
should be conducted in accordance with the law.

(d) Demeanor of the witness

This is the ability of the witness to identify the accused easily and without hesitation.26 It should
be based on the integrity, honesty and truthfulness of a witness and not boldness.27
It is possible for a witness to believe quite genuinely that he had been attacked by someone he
knows, yet be mistaken. So the error or mistake is there whether it be a case of recognition or
identification.28 A danger comes in where witnesses want to be helpful and pick out somebody
and instead create a fictional person in mind.

(e) Difficult circumstances or conditions

The presence of difficult or hectic circumstances can lead to mistaken identity.29 An example is
where a witness was extremely frightened, scared or shocked. In R v Manyara30 it was stated that
there existed difficult circumstances where people ran helter-skelter and there was total chaos. It
was at night, there was no indication of sufficient light being present and there was the lack of a
distinguishing mark to identify the accused. Thus mistaken identity could not be ruled out.

23 The guidelines are set out In R v Turnbull (1976) 3ALLER pg 549. See also; Nzaro v R (1991) KAR 212; Kiarie v R (1954) KLR 739
24 (1977) QB 224; See also Joseph NgumbaoNzaro v Republic Criminal Appeal No 44 of 1987; (1991) KAR
25 In John MulingeNduati v R Criminal Appeal No. 286 of 2004; 2006 eKLR; the robbery took place at daytime for a period of thirty minutes,

the attackers wore no disguises nor conceal their appearance and they had a conversation with the witnesses at close proximity.
26Jimmy Wanjohi v R Criminal Appeal 128 of 2006; (2006)eKLR
27 Ibid 19
28Toroke v R (1987) KLR 204
29 Ibid 24
30 Ibid 18

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In Muiruri v R31it was stated by the court that where the witness has become used to the
circumstances, they cannot be said to have been under extreme fright so as not to be able to
observe their attackers well.

Single Witness Identification

In Abdalla Bin Wendoh&Anor v R,32 the test for single identification evidence was stated to be,
‘A fact may be proved by the testimony of a single witness. The evidence may be tested with the greatest
care. The possibility of error must be carefully scrutinized and excluded.’
Whether the identification by a single witness is sufficient to sustain a conviction, it will depend
on the circumstances of the case especially where an identification parade was not carried out to
test the veracity of the witness’s assertion. In the alternative it will be necessary to examine other
evidence. No particular number of witnesses is needed.33

Reasonable Time
In Nicodemus Mwita & another v R34 it was stated that it was doubtful that the witness could retain
in their minds a clear description of the robbers whom they had not known before, for such a
long time and in the absence of any special and outstanding features in their bodies. This is
because the identification parades were conducted 10 months after the first robbery and 8 months
after the second robbery.
The assumption is that it must be done as soon as is practicably possible. In John Mulinge,35 the
assailants were identified 2 weeks after the commission of the crime and the witnesses were able
to identify them separately and without hesitation.

4.6 VISUAL IDENTIFICATION

The visual identification of suspects by witnesses has for many years been recognized as
problematic and potentially unreliable. It is easy for an honest witness to make a confident, but
false, identification of a suspect. There are many reasons why this may happen; among them are
the following reasons/ possibilities;
• Some people have difficulty distinguishing between different subjects of only moderately
similar appearance;

31 Ibid 21
32 (1953) 20 EACA 166
33 As stated in Section 143 of the Evidence Act. See also Mburu& Another V Republic(2008) 1 Klr (g&f) 1229(Criminal Appeal No 329 of

2006)
34Ibid 20.
35Ibid 24.

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 • Witnesses to crime are able to see the perpetrators fleetingly, often in stressful
circumstances
• Visual memory may fade with time and may become confused or distorted
• There is evidence that ‘unconscious transference’ may occur; where a witness confuses a
face he recognizes from the scene of the crime
• Witnesses rarely remember more than portions of events and their recollection may
change through self-interest or suggestion
• Witnesses are not always articulate and descriptive
• Though understandable, but often misguided many witnesses are eager to help police by
making positive identifications.

4.7 DOCK IDENTIFICATION VS IDENTIFICATION PARADES

There is a clear difference between dock identification and identification parades. In dock
identification, a witness or witnesses point out the accused standing at the dock and identifies
him/her as the culprit who committed the crime. It is imperative to note that the courts generally
avoid convictions based on dock identifications because such evidence without corroboration is
of a lesser value or worthless. This was clearly enunciated in the case of Gabriel Njoroge vs
Republic36where the court held that the dock identification of a suspect is generally worthless
unless other evidence is adduced to corroborate it. Similar findings were illustrated in the case of
Owen Kimotho Kiarie vs. Republic.37

The courts then sought to elucidate this position further and in the case of Amolo vs.
Republic38the court explained the rationale for the courts reluctance to accept dock identification
without other evidence as follows,
‘The reason for the courts reluctance to accept a dock identification is part of the wider concept, or
principle of law that is not permissible for a party to suggest answers to his own witnesses or, as it
sometimes put, to lead his own witness.’
Thus, it is generally believed that if an accused sits in the dock while the witness gives evidence
in a criminal case against him undue attention is drawn towards his. His presence there may in
certain cases prompt a witness to point him out as the person he identified at the scene of the
crime even though he might not be sure of that fact.It is also believed that the accused presence in
the dock might suggest to a witness that he is expected to identify him/her as the person who
committed the offence. This was particularly discussed in the case of Mwiruriand 2

36 1982-1988 1 KAR, 34
37 Criminal Appeal No. 93 of 1983 (Unreported)
38 1991 2 KAR, 254

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othersvsRepublic39 .
It is important to note that in circumstances where the witness/ complainant personally know
the witness, their evidence after dock identifications is admissible in court. However, great care
must be taken concerning testimonies of single witnesses.The striking difference between dock
identification evidence and identification parade evidence is that the latter carry a lot of weight
and are more credible in their admissibility in a court of law. However, it cannot be said that all
dock identifications is worthless. The court might base a conviction on such evidence if satisfied
that on the facts and circumstances of the case the evidence must be true and if prior thereto the
court duly warns itself of the possible danger of mistaken identification.40

4.8 CONDUCT OF IDENTIFICATION PARADES

The conduct of identification parade is clearly provided for in the Police Force Standing Orders.41
It states ‘whenever it is necessary that a witness be asked to identify an accused/ suspected
person, the following procedure must be followed….’42. The purpose for and the manner in
which, identification parades ought to be conducted have been subject matter of many decisions
over the years. As long ago as 1936, the court emphasized that the value of identification as
evidence would depreciate considerably unless an identification parade was held with
scrupulous fairness and in accordance with the instructions contained in the Police Standing
Order.43The procedure before conducting the identification parade is that a witness should give
the description of the accused before taking part in a parade. In cases relying solely on the
evidence of identification, it is imperative that the description of the offender made by the victim
during the first report to the police be recorded and latter produced in evidence. It is on the basis
of this first that an identification parade can later be conducted.

The case of NtelejoLokwam v Republic44underscores the above point. In this case, the police
identification was held three years after the said robbery. The court held that in the absence of a
description being given to the police when the first report was made after the robbery had taken
place, it would be impossible for an independent tribunal evaluating the evidence to arrive at a
determination that the complainants had in fact made a positive identification of the appellant
which identification was confirmed when they identified the appellant in an identification parade
conducted by the police.

39 Criminal Appeal No. 117, 131, 133 of 2000

40 Ibid
41 Chapter 46, Laws of Kenya.
42 Ibid

43See R V Mwango s/o Manaa

44 (2006) e KLR

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At the parade the witness shall identify the suspect /perpetrator by touching him. This is done so
that the accused can be aware that he is the one who has been identified as the perpetrator of the
crime. It also helps the police to get the initial reaction of the accused which may communicate
his guilt of the crime.
The identification parade shall then be conducted by the police officer appointed to be in charge
of the parade. He is the one responsible for informing the witness and the accused what to
expect. No opportunity should be availed for the accused to see the accused before the parade.
The officer in charge of the parade is required to fill out the police form no. 156 as to the conduct
of the parade.

At an identification parade where the victim is a rape victimthe preliminaries already pointed
out will be followed. The difference comes in pointing out the perpetrator of the crime. The
procedure can be like for any other general identification parade. The difference comes in where
the witness desires to keep their identity secret. The victim shall then view the parade from a
concealed vantage point.45The witness shall then point out to the police officer where the
perpetrator is positioned in the line and this person or persons shall be removed from the parade
and taken to a room where they shall be confronted by the witness who shall then pat them so as
to confirm the identification of the accused/accused persons. The patting is important as it
enables the police officers to see the initial reaction of the perpetrator which can be vital in
determining whether such a person is actually guilty of the crime.

Pursuant to chapter 46 of the Police Force Standing Orders paragraph 6 (iv) whenever it is
necessary that a witness be asked to identify an accused/suspected person, the following
procedure must be followed in detail:

a) The accused /suspected person will always be informed of the reason for the parade
and that he may have a solicitor or friend present when the parade takes place;
It offers the accused with a certain level of security. The solicitor’s role is not spelt out clearly
under the standing orders. It is better to have your solicitor present together with a friend who
can seek to record or take photos of the identification parade procedure, upon request from the
police officer in charge of the parade. Refusal of such a request by the police officer in charge of
the parade can be raised as a ground of objection by the accused person when giving feedback
about the conduct of the identification parade.
The advocate’s role is best as an observer because the participation of the advocate could result in

45 This could be through a window or from behind a screen.

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the advocate playing the role of a witness thus resulting in a conflict of interest.
In David Mwita Wanja & 2others v Republic here the court held that the omission was on the 1st
appellant for failure to provide an address or name of the friend he wished to call.

b) The police officer in charge of the case ,although he be present will not conduct the
parade;
In a paper written by Annegret Rust & Colin Tredoux titled ‘Identification parades: An Empirical
Survey of Legal Recommendations and Police Practise in South Africa’ It was stated in point that ‘…an
officer conducting the parade should state that he is independent and that he knows nothing about the
case…’
It also ensures fairness in the sense that if the officer in charge of the case were the one present,
such would be prejudicial to the accused.

c) The witness or witnesses will not see the accused before the parade;
It may be prejudicial to the accused and may undermine the value of the evidential value of the
parade.In Ajode v Republic46the court held that it would not be proper for a complainant to be a
witness at an identification parade two days after the arrest for he had already seen the accused.
The court further held that once a witness has seen the suspect before the parade, he will be
doing no more than demonstrating his recognition of the suspect and not identifying the suspect.

In AthumaniManzongo& another v Republic47the court held that in cases where the witnesses
say they do not know the suspects but are able to identify them, the suspects should not be
shown to the witnesses immediately after the arrest or while in the police station before they are
identified at a properly conducted parade.

In Njuki&4 others v Republic48the court held that there were discrepancies because the witness
saw the accused persons before the identification parade.In Joseph KamauKimani v Republic49the
court held that the rules of the identification parade were contravened because the witness saw
the accused after his arrest.
d) The accused/suspected person will be placed among at least eight persons, as far as
possible of similar age, height, general appearance and class of life as himself. should

46[2004]2 KlrCriminal Appeal No 87 of 2004

47Criminal Appeal case no.467 of 2000
48Criminal Appeal case no. 160 of 2000
49Criminal Appeal case no.396 of 2004

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 the accused/suspected person be suffering from disfigurement, steps should be taken
to ensure that it is not especially apparent;
The ratio is one suspect to eight persons.In Njihia v Republic50the court held that the
identification parade was not conducted properly because contrary to the ratio stipulated in the
Force Standing Orders, three suspects had been lined with eleven others. This is mathematically
too low a ratio to exclude the chance of random guesswork.
David Mwita Wanja & 2others v Republichere the witness could readily tell by elimination that
the two appellants were the only new faces in the parade. The two parades were conducted by
including the same persons in the earlier parade except for the positions they stood.

e) The accused/suspected person will be allowed to take any position he chooses and will
be allowed to change his position after each identifying witness has left, if he so
desires;
This ensures that the suspect does not feel noticeable and for guaranteeing protection to the
accused.
f) Care will be exercised that witnesses do not communicate with each other;
It ensures that the accused feels safe and protected from bias that is likely to arise from the
information received.

g) Every unauthorized person must be excluded;

Unauthorized persons are likely to interfere with the psychology of the accused person or
suspect. Thus this ensures that they feel safe and protected from a likelihood of bias or prejudice.

h) If the witness desires to see the accused/suspected person walk, hear him speak, see
him with his hat on or off, this should be done, but in this event the whole parade
should be asked to do likewise;
This ensures that the suspect does not have undue advantage over the others. Example where the
only person in the parade is the only one wearing a scarf or is the only one asked to speak. (The
South African case of ‘Two hats parade’)

i) Ensure that the witness actually touches the person he identifies;

This ensures certainty and to avoid confusion that is likely to arise due to a misunderstanding.
An example is where the police officer understands it differently and records it differently.

50(1986) KLR 422

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 j) At the termination of the parade, or during the parade, the officer conducting it should
ask the accused/suspected person if he is satisfied that the parade is being/has been
conducted in a fair manner and make a note of his reply;
In Jimmy WanjohiWanjiku v Republic51the court held that the parade was properly conducted as the
accused signed the report indicating that he was satisfied with the manner in which it had been
conducted.

k) When explaining the procedure to a witness the officer conducting the parade will tell
him that he will see a group of people which may or may not contain the person
responsible .the witness should not be told “to pick out somebody” or be influenced
in any way whatsoever;
In Ndiku& 2 others v Republic52the court held that the identification parades were conducted
unprocedurally because the police officer suggested to the witness the presence of the
accused/suspected person in the parade.
In Oluoch v Republic53the court held that in an identification parade it is dangerous to suggest to
a witness that the person to be identified is believed to be present at the parade. The value of the
parade as evidence is depreciated by this fact.In Simon KihanyaKairu& another v Republic54the
court held that the police officer while introducing the complainant to the parade suggested the
presence of the suspect in the parade. This depreciated the value of the parade as evidence.

l) A careful note must be made after each witness leaves the parade, to record whether he
identified the accused /suspected person and in what circumstances;
This has the effect of making the accused part of the process with the ultimate goal of conducting
the parade fairly. It also provides him with an opportunity to objection how the parade process
was conducted.
m) A record should be made by the officer conducting the parade of any comment made by
the accused /suspected person during the parade, particularly comments made when the
accused/suspected person is identified;
This is done for the purpose of keeping proper records and to determine the question of positive
identification.

51Criminal Appeal no 128 0f 2006

52Criminal Appeal no.11of 2000’A’
53Criminal Appeal no.66 of 1984
54Criminal Appeal no.99&100 of 2004

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 n) The parade must be conducted with scrupulous fairness; otherwise the value of the
identifications as evidence will be lessened or nullified.
This point is well captured in the case of R V Mwango s/o Manaa (1936) 3 EACA 29.

It is also important to note that parades should be conducted with as much privacy as possible.
They should not, unless unavoidable, be held in view of the public but in a closed compound or
yard from which spectators and unauthorized persons have been excluded.55

The Force Standing Orders also provide that if a witness desires to keep his identity secret, and
the circumstances are such that the officer in charge of the case deems such a course advisable for
reasons of security, victimization, etc, arrangements will be made for the witness to view the
parade from a concealed vantage point (e.g. through a window, from behind a screen). If the
witness identifies one or more of the persons on the parade, the persons so identified will be
removed from the parade and brought before and confronted with the witness, who will be
asked to confirm the identification in the normal way, i.e. by touching the person.56

The court in some cases may look the discrepancies in the conduct of identification parade. This
point was illustrated in the case of Njuki& 4 othersvs Republic57.In this case, the parade
conducted had discrepancies in that the witnesses saw the accused persons before the parade
itself was conducted. The court held ‘…the main factor to be considered in such cases is whether
the discrepancies are of such nature as would create doubt to the guilt of the accused. However,
where the discrepancies in the evidence do not affect an otherwise proved case against the
accused, a court is entitled to overlook the discrepancies.

4.8.1 PRODUCTION OF ID PARADE EVIDENCE

The report filled in by the police officer conducting the parade shall be admitted to court as
evidence. This report addresses the issue of; the number of witnesses and members of the parade
present, the police officer in charge of the parade, the position of standing of the suspects
subsequently identified and any objections raised and if the accused and witness are satisfied
with the way the parade was conducted.
The factors discussed earlier in this chapter as those which influence an identification parade
process shall be considered by the court. These are factors such as single witness identification
among others. Objections raised by the accused during the identification process shall be

55 Section 6 (v) Chapter 46, Force Standing Orders

56 Section 6 (vi) Chapter 46, Force Standing Orders
57 Criminal Appeal No. 160 of 2000

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considered as to their weight and relevance. The cases discussed under the conduct of the
identification parade and the issues they raise shall be considered when evidence is being
produced.

4.8.2 PROBATIVE VALUE OF IDENTIFICATION PARADE EVIDENCE IN COURT

Once the identification parade is conducted, and the suspect is arraigned in court, the evidence
on identification of the suspect produced in court is;
• The testimony of the ID parade officer who conducted the ID parade.
• The production of the ID parade form as exhibit in court
• The evidence of arresting and or investigating officer of the case ( depending on the
circumstances of the arrest of the suspect)
The court will evaluate credibility (demeanor) of the witnesses, the veracity of the evidence (as
tested by cross-examination from the defense) in conjunction with all other evidence adduced in
relation to the case to conclusively determine;
• The accused person was positively identified ( no mistaken identity)
• The accused person committed the offence charged with.

To do this, the court relies on the often cited case of the case of R vs. Turnbull 1977 QB 224.The
Court of Appeal laid down important rules for guidance of trial courts faced with contested
identification evidence and to cross check the pretrial identification procedures are conducted as
fairly as possible to avert the possibility of mistaken identity.

If there is no identification evidence the Turnbull guidelines will not apply. A witness who
has had a proper sight of the culprit’s face and who may be able to make an identification of the
suspect, should be invited to attend an identification parade if the police have a suspect available.
Where the identity of the suspect is known, the witness may participate in an identification
parade.

In the Turnbull case;Turnbull was convicted of conspiracy to burgle and sentence d to 3 years
imprisonment. The appeal raised problems relating to visual identification as he claimed there
was mistaken identity. The witness who identified him was alleged to have a fleeting glance. The
witnesses described the suspect, bystander and the vehicle the suspects left in. Shortly thereafter,
a police officer on duty passed by and recognized Turnbull. The court found the evidence of
recognition sufficient and dismissed the appeal. The court went on to state as follows;
“ First, whenever the case against an accused depends wholly or substantially on the correctness

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of one or more identifications of the accused which the defense alleges to be mistaken, [the court]
should warn itself of the special need for caution before convicting the accused in reliance on the
correctness of the identification (s).
The court should emphasize on the need for such a warning and should make some reference to
the possibility that a mistaken witness can be a convincing one and that a number of such
witnesses can all be mistaken.
Secondly, [the court] should examine closely the circumstances in which the identification by
each witness came to be made.
• How long did the witness have the accused under observation?
• At what distance?
• In what light?
• Was the observation impeded in any way?
• Had the witness seen the suspect before?
• How often?
• If occasionally, had he any special reason for remembering the accused?
• How long elapsed between the original observation and the subsequent
identification to the police?
• Was there any material discrepancy between the description of the accused given
to the police by the witness when first seen by them and his actual appearance?
[first report] “

All these go to the quality of the identification evidence. If the quality is good and remains good
and remains good at the close of the accused’s case, the danger of a mistaken identification is
lessened; but the poorer the quality, the greater the danger.
When in the judgment of [the court], the quality of the identifying evidence is poor, as for
example when it depends solely on a fleeting glance on a longer observation made in difficult
conditions, the situation is very different”. The English decision is persuasive and has been
considered in the local cases.

Livingstone KihugoMwangiVs Republic58

The appellant complained that identification of PW1 at night in difficult conditions, as the source
of light was doubtful. The second issue was that the identification parade was conducted
contrary to the Forces Standing Orders.

58C.A.554 Of 2004

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The court held;

“Thecircumstances for identification at the scene of crime was clearly unfavorable. It is trite that
identification by a single identifying witness in the circumstances such as those in our present case has to
be treated with great caution- especially where the circumstances are not conducive to positive
identification”
The evidence of PW1 shows that he could not identify all the suspects at the scene. He did not give a
description of the appellant or any of the robbers when he reported to the police shortly thereafter”

The identification parade was not conducted in accordance with the Police force standing orders.
Although an identification parade was conducted, PW6 testified that the Complainant actually
met the accused some days before the identification parade was conducted.

David Mwita Wanja and 2 Others Vs Republic59

The appellants contested identification by 3 witnesses at the scene of the crime and the conduct of
the identification parade by the 3 witnesses and alleged mistaken identity.
The Court held:
“We have on our part, taken into consideration that this offence was committed at 8 a.m. in broad daylight.
We also considered that the appellants approached the Complainant and even exchanged words. In those
circumstances we are of the view that the circumstances of identification were good and conducive for
identification by the complainant……….. We are aware that the evidence of a single identification witness
needs to be tested with greatest care, we have done so in this case……. We are also of the view that the
complainant’s ability to identify all 3 appellants in an identification parade held 2 months after the incident
lends credence and assurance to the positive identification……”

Miller Wanjala MuchachaVs Republic 60

The appellant was convicted of robbery with violence c/s 296 (2) Penal Code.The appellant
contested the Identification parade on 2 grounds; the witnesses had seen him before the
identification parade. The ID parade was not in compliance with Force STANDING ORDERS.
The Court held,
“We have anxiously considered the issue of Identification…..some witnesses who identified the appellant
had seen him in an office before the parade. This made the identification doubtful. We note the numbers
were below eight (8) as required of the Forces Standing Orders Paragraph 6 (iv) (d).”

59CA 117 OF 2005

60C.A. 2008 KLR

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4.9 KENYAN JURSPRUDENCE ON IDENTIFICATION PARADES
Most of identification parades in Kenya have not been conducted with scrupulous fairness as is
required by the Police Force Standing Orders. The police as custodians of identification parades
have flouted most if not every rule in their own standing orders if the cases on identification
parades are anything to go by. This has generally occasioned bias on accused persons and to a
great extent occasioned the accused persons miscarriages of justice. The worst form of
punishment is punishment that an individual does not deserve. Mistaken identity causes the
worst form of injustice and it is with this in mind that identification parades should be carried
out with the utmost care and fairness.

Kenyan jurisprudence on identification parades has proved that in most circumstances, the rights
of the accused have been wantonly trampled on with reckless abandon when the said
identification parades are conducted. The question that begs to be answered is; can justice be
achieved when one’s rights are grossly violated? It should be noted that identification parades
were formed on the basis of protecting the accused. In the Kenyan scenario this is a far cry from
that basis as most identification parades instead tend to injure the accused person more than
protect him.

For purposes of proper grasping of the foregoing argument we shall discuss a few selected
Kenyan cases and as far as possible highlight the injustices. The cases have been discussed in the
rules above and we shall therefore give a summary.

Republic vs Mwango & Maina (1936) 3 EACA 29

This is one of the earliest cases ever reported on identification parades in Kenya. In this case an
identification parade was conducted in hospital where the suspect was admitted and which
identification parade comprised of three (3) men only. The officer in charge of the parade asked
the complainant “Among these men, who assaulted you?” the complainant pointed out the
accused who was tried and convicted.
This flouted two major police force standing orders which the court handled very well. The first
being that the accused should have been placed among 8 persons who are of the same height,
age, general appearance e.t.c. in this case the whole parade comprised of three people only. The
second order to be flouted is the order that states that the identifying witness should not be asked
to “pick out the person” he believes committed the offence. This intimates that the accused was
present in the group. It is however relieving to note that the court quashed the evidence that was

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obtained from the flawed parade
Oluochvs Republic, Criminal Appeal No. 66 of 1984
In this particular case a certain witness who attended the identification parade stated that he had
been told to “identify the people who robbed him.” The tragedy of the case is that the trial
magistrate and the High court Judge in their wisdom or lack of it thereof found the parade to
have been properly conducted. This Court however held that:
“In an identification parade, it is dangerous to suggest to an identifying witness that the person to be
identified is believed to be present in the parade. The value of the parade as evidence in this case was
considerably depreciated by that fact.”

Joseph Kariukivs Republic, Criminal Appeal No. 74 of 1985

Four persons were lined up with twelve (12) other persons in an identification parade. The court
held that:
“Under Police Force (standing) Orders, while conducting identification parades, one accused should be
lined up against at least eight (8) other non-accused persons. It was an infringement of the orders and a
flaw in the proceedings to line up the four accused persons with 12 other persons in an identification parade
and this rendered the parade an unreliable source of identification.”

In a similar case of Njihiavs Republic, Criminal Appeal No. 13 of 1986; there where three (3)
suspects who were mixed with eleven (11) others for an identification parade. The court held
that:
“Mathematically that is too low a ratio (something like one to nearly five) to exclude the chance of random
guesswork.”

Kamau and 2 Othersvs Republic, Criminal Appeal No. 337 of 1987

The facts of this case are that the suspects were identified in three identification parades. Each
suspect was called to take his place in a parade involving eight (8) members. However in all the
parades conducted the same members lined up in the same order. The court held:
“The 2nd and 3rd identification parades were not conducted properly. The two identifying witnesses only
had to observe that the parades were identical to the previous ones except for the absence of the previously
identified person and the presence of another person in his place who the witnesses must have considered to
be another suspect. Once a witness knows who the suspect is, an identification parade is valueless.

Omar vs Republic, Criminal Appeal No. 133 of 1986

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The accused in this case was identified by two witnesses; the witnesses had seen him prior to the
parade. The court held:
“Though the parade had been properly conducted, the appellant’s success in proving that he had been seen
by the witnesses prior to the parade meant that the parade was useless.”
Can it be clearer that overlooking such discrepancies is in itself highly prejudicial to the accused?

David Mwita Wanja and 2 Othersvs Republic, Criminal Appeal No. 117 of 2005
In this case, the same eight (8) persons where used for three (3) identification parades and as such
the identifying witness could easily tell by elimination that the appellants were the only new
faces in the parades. The parade was rendered worthless by the court since it was extremely
prejudicial to the appellants.

These are just but a few selected cases to prove that most identification parades conducted by the
police in Kenya have been extremely prejudicial and in some cases, the courts have tried to cure
these prejudices by invoking other legal provisions in cases where the rights of an accused have
been violated though evidence heavily points to the guilt of the accused. It is for these reasons
that major reforms should be undertaken to improve the fairness of these identification parades
as will be proposed hereafter.

4.9.1.0 PROPOSALS FOR REFORM

4.9.1.1 MEASURES FOR PROTECTION
The Witness Protection Act should be revised so as to extend the protection of witnesses to also
witnesses who identify perpetrators at an identification parade. This is so especially for rape
victims and victims of robbery with violence.
The provision for identification through touching should be scraped out. It is a very intimidating
provision. This is especially so for victims of rape where such provision creates stressful and
traumatic conditions for them. It may expose the witness to harm by exposing them to potentially
dangerous suspects. The witness may shy away from identification for fear of victimization. A
proposal here could be the use of number tags to identify the parade members.

4.9.1.2 ADOPTION OF THE SEQUENTIAL SYSTEM OF PARADES

This is where the parade members are presented to the witness individually in a random manner.
In the USA this usually carried out in an enclosed room with a compartment containing a large
window. The members of the parade are asked to line up inside this compartment. The persons
are visible to the witness but the witness is not visible to them. They are all first paraded then

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brought in one by one. This enables a proper reflection as to the identity of the perpetrator rather
than comparing the people in the parade to one another.

4.9.1.3 INCORPORATION OF MORE ADVANCED METHODS OF IDENTIFICATION

This could be by the use of photographs. This reduces the aspect of tension and fear. This is
because it protects the identifying witness from coming face to face with the accused suspects. A
proposal here could be by the setting up of a photo databank of criminals like the ongoing setting
up of the DNA of rape criminals.ICT technology could also be embraced where a Video
Identification Parade Electronic Recording System (VIPER) is used. Here the suspect’s
description is entered into the system and then galleries of images similar to him are displayed. A
video of the images is then shown to the witness in controlled conditions.

CHAPTER FIVE
PREPARATION OF FILES FOR TRIAL
5.1 INTRODUCTION
A file is a folder that holds loose papers together for organization and protection. File folders
usually consist of a sheet of heavy paper stock or other thin, but stiff, material which is folded in

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half, and are used to keep paper documents. They are often used in conjunction with a filing
cabinet for storage.
Successful practitioners (prosecutors and counsels) need to have the ability to think on their feet,
muster the art of persuasive talking and impress by their charisma. Mastery of these skills give
practitioners confidence. However one has to effectively prepare for the task of representation
for them to exude the kind of confidence expected of a practitioner. Preparation will entail
knowing the facts of the case thoroughly, considering the potential relevance of all the facts in
their legal context, considering possible responses to any point made, planning and thinking
through arguments beforehand. Having gone through this, the practitioner can deliver a
convincing address while addressing all the relevant questions that may arise. For effective
preparation, the prosecution/defense has to maintain a file that must have basic documentation.

5.2 PREPARATION AND CONTENTS OF THE POLICE/PROSECUTION FILE

Preparation and compilation of police files is governed by The Force Standing Orders. The
police file would ordinarily have the following documents and records
a) Custody Record - This explains the reason why the suspect was arrested, place of
arrest, time and date. It also indicates time when the suspect arrived at the station
and his condition on arrival. A detention decision is then made to keep the suspect
in police custody possibly to await arraignment or pending further investigation.
The comment by the suspect on being informed of detention is also recorded. It also
contains the name of the officer opening the custody record. The accused person’s
personal details like names, postal and residential addresses, age, occupation and
ethnic/racial group. Name and rank of the arresting officer and officer in charge of
the investigation are also noted. Detained person’s rights are read recorded and an
interpreter, in case the suspect does not understand the language. All documents
relating to the report of the offence and all subsequent reports or amended reports
to be marked A (1), A (2) etc. The marking distinguishes various reports made by
different persons and enhances clarity and reference.

b) Sketch Plans and Documentary Exhibits - Photographs, sketches, plans and such
other material referring to the scene of crime together with copies of any other
documentary exhibits should follow the reports. These documents should be
marked as B (1), B (2). Photographs should be mounted on foolscaps. In case they
are not mounted on foolscaps, then they should be placed in envelopes of a suitable

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 size and the contents thereof clearly listed on the outside.

c) Copies of reports (Expert reports) such as post mortem, ballistic report, finger
print, expert report, handwriting expert and all other expert reports should then
follow marked C(1), C(2)..
Contents of medical reports and such other experts whose language is technical
must be supported by a statement from the expert setting out in detail and simple
language the contents of the report.
d) Statements of Prosecution Witnesses -prosecution files must have prosecution
witness statements. The complainant’s statement that forms the substratum of the
charge must be on the file. The arresting officer’s and Investigation Officer’s
statements as well as all expert witnesses’ statements and all material witnesses’
statements should be in the police file. Every statement recorded by police will :
i) show the date, time and place it was taken;
ii) bear the full names age, registration and full address and all other available
identifying particulars relevant to the individual making the statement;
iii) The language used by the person making it will be indicated at the head of
the statement by adding the words “in the…language”. If other than English
and an interpreter is used, a certificate shall be completed by the interpreter.
iv) The statement must be endorsed to the effect that the author has been
invited to effect corrections he wishes to make after reading it. The
statement must be signed by the witness or if illiterate thumb printed. If the
witness declines to authenticate the statement, then the reason thereof is
recorded, if given by the witness.

Copies of all other prosecution witnesses should then follow, including evidence of
identification parades which follows the main identifying witness. The statement of the Police
Officer conducting the ID parade will be cross referenced with statements of each identifying
witness for ease of reference, and will itself include as an addition to the statement a copy of
police form P. 156. All statements are marked D (1), D (2).
e) Then follows theCharge and Cautionary, Statement under Inquiry and Statements
of the Accused Persons (including statements made under caution and all
supplementary statements) to be marked E (1)…The Investigation officer will
interrogate the suspect on the alleged offence any statement made will be kept in
this sub-file.

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 NOTE: Criminal Law (Amendment) Act, 2003 section 99 repealed Section 25 of
the Evidence Act and inserted Section 25A ‘Any confession or admission of fact
shall not be proved unless made in court.’ Criminal Law (Amendment) Act, 2007
section 25A was amended to include statements made by the suspect at the police
station in the presence of a representative and the statement be taken by an officer
above the rank of Assistant Inspector or statement made in court.

f) Investigation diaries of all police officers conducting the investigation which must
be full and accurate setting forth times, dates and places visited and action taken
should be marked F (1)...
g) Copies of charge sheet and related documents that will be read in court to the
accused person should follow. The same should be marked G (1)...Upon completion
of investigations, the Investigation officer will prepare the charges in a charge sheet
and place in this file.
During the trial, the charge sheet maybe amended or substituted and such copies
will be kept in the sub file. Section 214 CPC allows the prosecution to amend or
substitute the charge sheet anytime before the close of the prosecution case.

h) Lists of witnesses, exhibits, and prisoner’s property, accused’s property, accused’s

previous criminal record, statistics Forms will follow. These are marked at H
(1)...The fingerprint form of the accused will be placed in this sub file. The Accused
person’s record will also be in this file. The prisoner’s personal effects will be listed
in this sub file, documents, watch, wallet, shoes and money Inventory of items
recovered from accused or his home or place of arrest that relate to the case or are
deemed to be stolen items will be in this file. List of the witnesses to testify.

i) The document that follows thereafter is the covering report drawn up by the officer
in charge of the investigation setting forth in detail the prosecution case as it stands.
This report is by the Officer in charge of investigations giving the chronology of
events and conduct of investigations culminating to the decision to charge the
suspect and arraign him in court with specific charges. The Investigation officer in
giving the findings will cross reference with relevant witness statement and exhibit.
Reference must be made to the contents of the file e.g. F1 for quick reference.

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 j) Correspondence or minute sheet:On the left hand side of the police file cover a
correspondence sub-file will be kept.The sub-file contains correspondence between
police personnel with regard to the case. Correspondence between the Investigation
officer & Officer In charge of the Station State Counsel, Attorney General’s office,
DPPs office.
This sub-file deals with requests for advice from the IO to the in charge or any other
correspondence on the matter. The sub-file also contains instructions from gazetted
officers/state counsels to IOs. Commendatory remarks and other matters on
interest arising out of the case are also recorded in the sub-file. This sub-file is
marked J (1).

SUB-FILE

‘A’

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 INITIAL REPORT
- Report of the offence, subsequent reports, and amended reports.
- A (1), A (2), A (3) e.t.c.

SUB-FILE

‘B’

SCENE OF CRIME
- Photographs (Mounted on foolscap/ placed in envelopes-clearly marked).
- Sketches
- Plans
- Documentary exhibits
- B (1), B (2), B (3) e.t.c

SUB-FILE

‘C’

EXPERTS’ REPORT
Post-mortem reports
Government analyst (Chemist)
P3 forms e.t.c.
C (1), C (2), C (3) e.t.c

SUB-FILE
‘D’
Statements of prosecution witnesses
- In case of identification parades form P.156 to be included

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 - D (1), D (2), D (3) e.t.c

SUB-FILE
‘E’
Charge and cautionary statements of accused persons
- Statement under inquiry
- E (1), E (2), E (3) e.t.c

SUB-FILE

‘F’

INVESTIGATIONS DIARY
- All investigating officers’ diaries
- Must set out fully and accurately, times, dates, places e.t.c.
- F (1), F (2), F (3) e.t.c

SUB-FILE
‘G’
-Copy of charge sheets and related documents
- G (1), G (2), G (3) e.t.c

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 SUB-FILE

‘H’
ACCUSED PREVIOUS RECORDS
-List of exhibits
-List of witnesses
-Accused property
- Statistics forms e.t.c
- H (1), H (2), H (3) e.t.c

SUB-FILE
‘I’
COVERING REPORT
- Prepared by the investigating officer.
- Outlines the prosecution case.
- Cross-referencing to other sub files is madefor ease of reference

SUB-FILE

‘J’

CORRESPONDENCE
- Kept on the left hand side of the file.
- Requests-for advice-amongst-investigators/state counsel.
- Instructions from senior/ experienced
Investigators/ state counsel.
- Minute Sheet of events of interest to theinvestigation

5.3 PREPARATION AND CONTENTS OF THE ADVOCATE’S FILE

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The advocate has a pivotal role in a trial. He is the central figure who communicates his client’s
story to the court. Just as the quality of a story depends on the author, the persuasiveness of a
case depends on the author. A case presented in court is as much a product of the lawyer’s
conceptual skills as it is a re- capitulation of evidence. The facts are jumbled in pieces; in
memory of witnesses, buried in documents or reflected in physical exhibits. The advocate makes
sense of these pieces, he/she:
a) Conceptualizes the theme of the case
b) Plans its presentation
c) Narrates the client’s story
d) Documents it is correct
e) The case is presented with vividness and strength

Making a compelling case requires work. The advocate will marshal evidence to prove facts that
support the ultimate findings and make it understandable and convincing to the court.
Preparation is essential to success in litigation. An advocate cannot rely on natural ability and
charm to produce a winning case nor expect fate to produce the winning point in an inspired
cross-examination. Instead, good litigators depend mostly on hard, painstaking work.

To adequately prepare for trial, an advocate must know the case itself as much as possible and
what the other parties have. To do this, one must know what court and police files have and then
build a comprehensive defence file.:-The defence trial file serves an administrative function,
keeping all documents on the evidence gathered, documents relating to the trial and the bill of
costs, The advocates file must have the following documents;

a) Instruction note: - It contains a note of the exact action required of the advocate,
advocate’s name, name and address of the person giving instructions and retainer.
b) Client attendance form: - this form indicates name of client, date of attendance, length of
time spent attending the client/representative and Purpose (s) of attendance.
c) Court attendance form:- It contains date of attendance, length of attendance, file
reference, name of client, case number and parties, name of advocate in attendance,
counterpart in attendance, name of judicial officer, purpose of the court attendance,
instructions for the said attendance, what transpired in court and further instructions as
a consequence of the court attendance.
d) Charge sheet: - after taking the plea (not guilty), the advocate will be given a copy of the
charge sheet.

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 e) Bail/bond documents: - if the offence is bailable, then the advocate’s file will have the
necessary copies of documents necessary for the admittance of the client to bail. They are
copies because the originals are deposited in court.
f) Legal Opinion/Brief; It is also appropriate for the advocate to render a preliminary legal
opinion to client on the strengths and weaknesses of the case. This may be important for
out of court settlement.

g) Witness statements and documentary exhibits:- on attending court, after taking plea, the
advocate would ordinarily apply to court for copies of the statements and documentary
exhibits to be relied on during trial.
George NgotheJuma, Peter OkothAlingo, and Susan MuthoniNyoikeVs Attorney General
Misc App 345 Of 2001
h) Legal research; After, the lawyer has gathered evidence, legal research is conducted and
a list of cases to be relied on during the trial is placed in the file

i) Case concept/battle plan; the advocates file will contain notes on the fact/case analysis
of the evidence gathered and the legal principles that apply. The outcome will be the
strategy which will be the case concept/battle plan for the trial process.
j) Defence case; Copies of reports such as post mortem, ballistic report, finger print, expert
report, handwriting expert and all other expert reports should be on the defence files.
k) Defence witness statements- defence files must have defence witness statements. Lists of
defence witnesses and exhibits should also be on the file. The advocate should have a list
of authorities that he intends to rely on while submitting.

5.4 CONTENTS OF A COURT FILE

The court file is opened when the suspect is arraigned in court. The case is given a number
serially with the year and the charge sheet from the Police station is placed in the file. The Court
clerk writes the following information before the presiding officer commences proceedings in
court. The (physical file) contains the following; (on top of the file)
a) Court of arms
b) Court names/ place
c) Case number/ year
d) Names of suspect(s)
e) Name of the case/ the charge (s)

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Inside the file 1st page, the Court Clerk will indicate
 The date
 Names and rank of judicial officer to conduct trial
 Names and rank of prosecutor.
 Names of Court Clerk
 When the court proceedings start, the judicial officer will record the following;
 Names of counsel/advocate (s)
 Names of Interpreter (if present)
 Language used in the proceedings

NB: Article 50(2) (m) of the Constitution of Kenya 2010 provides mandatorily that a person
charged with a criminal offence shall be permitted to have, without payment, the assistance of an
interpreter if he/she cannot understand the language used at the trial.
The language of a subordinate court is English or Kiswahili – see s. 198(4) Criminal Procedure
Code, Cap. 75. If accused does not understand either, he/she is entitled to an interpreter at
public expense.

Foundational document in the court file:-

Charge sheet – this is the document which initiates a criminal proceeding before court.S. 89(4)
Criminal Procedure Code provides:
‘(4) The Magistrate, upon receiving a complaint, or where an accused person who has been arrested
without a warrant is brought before him, shall, subject to the provisions of sub-section (5) [to the effect that
if the complaint or formal charge does not disclose an offence, the magistrate shall refuse the complaint or
formal charge], draw up or cause to be drawn up and shall sign a formal charge containing a statement of
the offence with which the accused is charged, unless the charge is signed and presented by a police officer.’

Plea Taking Proceedings

Once a charge sheet is filed in court and the accused is brought to court pursuant to the charge,
he/she is confronted with the charge and his/her answer thereto sought. That answer is the
accused’s plea to the charge.
NB: The issue of pleas is substantive topic No. 7 and it will be addressed substantively there.
However, it must be touched on here.
The charge sheet, if signed and presented by a police officer, will indicate whether the accused is
out on bond or in custody.

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NB
Section 23(1) of the Police Act, Chapter 84 provides:
‘(1) A police officer investigating an alleged offence (not being an offence against discipline) may require
any person to execute a bond in such sum and in such form as may be required, conditioned on his due
attend.
The charge sheet is read out to the suspect/accused in a language he/she understands – a
requirement under Article 50 (2) (b) of the Constitution of Kenya 2010. The suspect’s reply is
recorded as clearly and directly as possible.

Applications
The suspect/accused may have some applications or complaints to make, e.g.:
a) If he/she has been in custody, he/she may apply, through counsel or on their own, for
bail pending trial;
b) He/she may complain about torture, other ill-treatment or neglect while in police
custody;
c) Suspect’s/accused’s advocate may address the court regarding the suspect’s/accused’s
complaints;
d) After due inquiry, the court makes necessary rulings and gives appropriate orders;
e) The court orders may relate to bail/bond for the suspect/accused; may direct medical
examination and treatment of the suspect/accused; may fix mention and/or hearing
dates; etc.

The first step, the judicial officer conducts and records Plea Taking Proceedings
• The charge(s) are read from the charge-sheet to the suspect in a language he/she
understands
• The suspect(s) reply recorded as clearly and directly as possible
• The Advocates Address:the suspect (s) have an opportunity to make
applications to the court. These maybe complaints requests or inquiries. where
the suspect is represented by counsel/advocate, then the advocate will address
the court on the suspect’s instructions, with regard to bail/bond or preliminary
objections and the address will be recorded in the court file.
• The Prosecutors Address: The prosecutor will reply to the applications made by
the suspect or advocate and the same will be recorded in the court file.

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 • Courts orders:The applications made by the suspect or advocate and reply by
prosecutor are recorded and the court makes and records orders on bond/bail,
mentions and hearing dates and allocation of courts for the hearing of the case.
• Any preliminary applications and proceedings made after plea taking and before
the hearing of the case will be recorded in the court file.
• On the hearing date the court will record the proceedings of all parties in the
sequence they address the court.

The following are court documents found in the in the Court file;
• Charge sheet
• Remand Warrant
• Bail/bond documents
• Particulars of surety documents
• Release order of the Suspect
• Court Exhibit list
• Court list of witnesses list
• High Court orders relating to the case

Documents in court file (with particular ref. to Magistrate’s Courts)

Charge sheet – as already noted, this is the foundational/basic document initiating formal
criminal proceedings.
Bail/bond documents – this will be a matter of substantive discussion under topic 8 in the Course
Outline. However, the following may be noted at this stage:

Bail consists of the temporary release of an accused person from imprisonment on finding
sureties or security to appear for trial. The accused is to make a written promise that in return for
his temporary release he will appear in court at a specified time and date. It is an agreement
between the accused and the court that the accused will pay a certain sum of money fixed by the
court if he/she fails to appear to attend trial on a certain date.
The object of bail is to ensure that the accused will attend his trial without his/her being detained
in prison or remand. The recognizance is termed a bond and the term bail bond is frequently
used. See ‘Criminal Procedure in Uganda & Kenya’ by Douglas Brown, East African Publishing
House, and Nairobi 1965 pp.27/28).

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Particulars of surety documents – a surety is a pledge by another person guaranteeing that if the
accused person does not appear before the court at the specified time and on the specified day,
he/she will pay a certain sum of money to the court.

Release order of the suspect – if the suspect’s/accused’s request for temporary release pending
hearing is granted, a release order will be made and will appear in the court file.
Court Exhibit List – it is unlikely that at the initial stage there will be any exhibits. If there are,
there will be an Exhibit List enumerating them. If they come in subsequently, similar listing will
apply.
Court List of Witnesses – the police charge sheet has a column for names of witnesses. Unless
there is good reason not to disclose them, it is expected that they will be
named and shown in the charge sheet.

High Court Orders – examples of situations where a Magistrate’s Court file may house High
Court Orders include cases where a reference has been made to the High Court for
certaindirections to the Magistrate’s Court. Where such directions or orders are given, they
would be transmitted to the Magistrates’ Court and housed in the Magistrates’ Court file.

Hearing Proceedings
Criminal proceedings commence from when a suspect is arraigned in court and takes plea. The
plea taking process is recorded. When the hearing starts the proceedings are recorded of all that
is said by each witness, cross examination thereof and comments made during the proceedings.
All pages of the proceedings are marked serially except the court rulings and judgment that are
marked separately. During trial the exhibits are marked and produced but are kept separately
from the court file, the documentary exhibits are kept in the registry, and the physical exhibits in
the exhibits’ store.

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 CHAPTER SIX
COMPLAINT AND CHARGE
6.1 INTRODUCTION
In most criminal cases, proceedings commence at this stage i.e. by way of indictment or charge.
The formal document is usually referred to as charge in the subordinate courts whereas
indictment refers to the form of charge in the High court. The CPC61 refers to these as charge and
information.

6.1.2 WHAT IS A CHARGE?

A charge refers to a formal written accusation or complaint against a person (the accused) for an
offence known in law. The offence must be provided for in law62. It is drawn by a magistrate or a
police officer and signed as required by law. Since criminal cases are usually for and on behalf of
the Republic, the state is the party to institute the case; namely through prosecutors or state
counsels. Therefore the title reads as Republic v. Accused

6.1.3 WHAT IS THE PURPOSE OF THE FORMAL CHARGE (RULES?)

The Golden Rule is that the charge sheet should inform the accused person in clear and
unmistakable terms of the allegations against him; in order for him to be able to prepare his
defense. This rule is part of the wider requirement of affording an accused person a fair trial.
Therefore in Nashon Marenya vs. Republic63 the court emphasized on the need for the charge to
be clear and unequivocal as a way of avoiding confusion as to what the accused must meet. The
court further was emphatic that such confusion cannot be said not to lead to a miscarriage of
justice. In the words of Todd J; “Charges and particulars should be clearly framed so that the accused
persons know what they are charged with, and proper references should also be made otherwise confusion
may arise, and if confusion arises, it cannot be said that failure of justice may not have been occasioned.”
The law provides for the manner in which a charge is to be framed. It has three basic parts:
commencement, statement of the offence and the particulars of the offence.

6.2 FRAMING OF CHARGES

Section 134 of the CPC provides that every charge or information must contain and shall be
sufficient if it contains a statement of the specific offence(s) with which the accused is charged
together with such particulars as may be necessary for giving reasonable information as to the
nature of the offence charged.

61Criminal Procedure Code

62Section 77(8) of the constitution
63Criminal Appeal No. 786 of 1982 (unreported)

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Consequently as a statutory requirement the charge sheet must contain the following:

(i) Statement of the offence

Pursuant to section 137 of the CPC64 and as part of the well-recognized principle of criminal law,
no person shall be convicted of a criminal offence unless that offence is defined and the penalty
thereof prescribed in a written law. The statement of the offence must contain the offence charged
together with the law creating that offence. In cases where the offence is defined in one section
and the penalty prescribed in another it is imperative that the two sections be quoted in the
charge.
(ii) Particulars of the offence
The particulars required are such as will provide reasonable information as to the nature of the
offence charged. This includes where and when the offence is alleged to have been committed,
the subject matter of the charge and the identity of the accused and the complainant65. In short it
should be sufficient enough to disclose the offence.
In Yozefu & another Versus Republic66 the court emphasized that the particulars must disclose
the offence, and such statement is enough if it contains a precise statement of the incriminating
factors as the prosecution seeks to prove at the hearing. As per Spry J A: “It is fundamental that
every charge should allege all the essential constituents of an offence. In the present case…we think that the
allegation that the pieces of skin came from an animal killed in contravention of the Act was an essential
ingredient, and its omission makes the charge defective.” The allegation that “the offence is completed
once a person is in possession of a trophy was rejected by the court. From this case it is clear that
one needs to understand the offence before one can draw up the charge.

6.2.1 PROBLEMS IN DRAWING CHARGE SHEETS

The following are grounds for defective charge sheets. They are;
1. Wrong / Non-existent sections of Law
The defect is not fatal as under section 382 of the CPC the defect does not cause failure of justice
or prejudice to the accused person.

2. Essential ingredients of offence

The particulars of the offence should contain essential ingredients of the offence. Lack of
particulars and wrong ingredients are fatal to the charge.67

64 Criminal Procedure Code

65 Section 137,criminal procedure code
66[1969] E.A 236
67Francis KimaniMuthoko and another Vs Republic C.A. 331 Of 2006

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 3. Duplicity of charges
Charging of the same offence in more than 1 count or joining 2 or more offences in the same
count except where the law expressly allows the same.

4. Descriptive provisions
The main guide to drafting charges is to read the prescribed offences and ensure each charge
contains essential ingredients and ensure that the statement of offence discloses an offence and
the penalty.
• There provisions that are descriptive of the offence but do not constitute the statement of
offence; theft is described in section 267 and 268 of the Penal Code. The general offence of
stealing is disclosed in section 275 and the penalty thereof. The charge of theft is in
section 275 and not the other descriptive provisions.
• For the offence of robbery, section295 of the Penal Code describes the offence, but the
essential ingredients are in the specific types of robbery, section 296 (1) or296 (2) of the
Penal Code
• The offence of obtaining by false pretences is described in section 312 but the essential
ingredients are in section 313 Penal Code.
• The charge of handling stolen goods c/s 322 (1) gives the essential ingredients of the
offence, yet the penalty is in section 322 (2) of the Penal Code. The charge would include
both 322 (1) and (2).
• Similarly in murder cases sections 203 and 204 of the Penal Code are combined in the
statement of the offence.
5. Alternative Charges
Usually in the course of investigations, the evidence will disclose various offences from the same
set of facts and sometimes due to the time span and other intervening circumstances it is not clear
cut what specific offence was committed. Therefore, the investigating officer will draft the main
charge and another one that may be possibly proved by the same facts incase the first charge
fails.

6. Attempts to commit offences c/s 389 Penal Code

In criminal cases, an offence is proved by proof of “mensrea” and “actusreus”. Where the
offence is not completed or is intercepted in the process but the culprit is arrested, the preferred
charge is an attempt of the main charge. In drawing the charge, the provisions of the main

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 offence and the provision of the attempted commission are combined.

7. Peculiar/ Special Offences

Sections 317, 393-395 Penal Codecontains the following offences; conspiracy to defraud,
conspiracy to commit a felony or a misdemeanor and other conspiracies;
“Any person who conspires with another by deceit or any fraudulent means…..”
The essential ingredient of the offence is that there must be more than 1 person charged with the
offence and particulars will show that other person(s) are involved in commission of the offence.
If the charge contains 1 person charged with the offence it is defective.

Section 382 Penal Code

The offence of personation requires that the prosecution proves beyond reasonable doubt that the
accused posed as a specific person with intent to defraud any person. The person personated
maybe dead or alive. The charge must spell out the identification of the specific person, full
names or specific title or office in the particulars of the charge, otherwise the charge will be
defective.

8. Amendment and substitution of charges;

Section 214 of CPC
The court has power to order change, amendment or substitution of the charge or addition of a
new charge any time before the close of the prosecution case if it is of the view that the charge is
defective in form or substance.
Provided when the charge is altered, the court shall call upon the accused person to plead to the
altered charge. The court will inform the accused of the right to recall all or any witness(s) after
the amendment of the charges.
If the accused exercises his/her right to recall the witnesses, then the prosecution is entitled to re-
examine the said witnesses.

6.3 DUPLICITY OF CHARGES AND LACK OF INGREDIENTS

Black’s Law Dictionary defines duplicity as charging of the same offence in more than one count
of an indictment or the pleading of two or more distinct grounds of complaint or defence for the
same issue. It further states that in criminal procedure this takes the form of joining two or more
offenses in the same count of an indictment.
It is a legal requirement that a charge should not suffer from duplicity. Duplicity occurs where

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the charge or count charges the accused of having committed two or more separate offences68; it
is said to be duplex and barred for duplicity. Duplicity can be avoided where a statute creates
offences in the alternative, Section 86 of the Traffic Act provides for offences created in the
alternative e.g. causing death by driving a motor vehicle:
a) driving recklessly;
b) Driving at high speed.
c) Driving in a manner dangerous to the public.
d) Leaving the motor vehicle on the road in a manner dangerous to the public.

All these are stated in the alternative so that you cannot be charged of two or more but only one
of the alternative. A count charging the accused of causing death by driving the motor vehicle
recklessly and at high speed is duplex. The charges should be expressed in the alternative:

Mwamdalafu vs. R69the appellant was charged with the alternative counts of the offence of arson
and attempted murder. The particulars of the charge of arson alleged that the appellant had set
on fire two houses, one belonging to A and the other belonging to B. The houses stood more than
100 yards apart. He was charged with one count of murder and one count of arson. The
particulars stated that he attempted to cause the death of A and his wife by setting on fire 2 house
one A’s and the other B’s. Evidence showed that the appellant had attempted murder on 2
occasions. The first, he burnt A’s house and when A took refuge in B’s house, he burnt B’s house
as well. The question was whether there was duplicity.

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

In Saina v R70, The appellant was charged on a single count with the offence of housebreaking,
theft and handling stolen property. He was convicted but on appeal the High Court found the
charge barred for duplicity. It was found that one count charged 3 separate offences i.e. shop
breaking contrary to section 306(a) of the penal code, handling stolen goods contrary to section

68ArchboldJf: Pleadings, Evidence and Practise in criminal cases, London, Sweet and Maxwell ,(5thed), 1962 at page 53
69[1966] EA 459
70[1974] EA 83

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322 of the penal code. It was forth held that each offence should be set out in a different count.
The charge of handling stolen property is in the alternative.

In Bhatt v R71, The appellant was charged with being in possession of obscene material, contrary
to section 181(a) of the penal code. It was alleged that the appellant for the purpose of or by way
of trade for the purpose of distribution or public exhibition had in his possession 37 photographs
of an obscene nature which could tend to corrupt the morals of any person etc. Section 18172 talks
of alternative purposes.

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

In Koti v R73, the appellant was charged and convicted of wrongfully attempting to interfere with
or influence witnesses in a judicial proceeding either before or after they had given evidence
contrary to section 212 (1) of the penal code. On appeal, it was held that the charge was duplex,
i.e. it charged with two offences; interfering with the witness before and after. They should state
if it was before or after. If it was before and after there should been two counts. Duplicity is
allowed in certain circumstances. There are exceptions to the general rule that count should not
charge an accused with more than one offence.

6.3.1 EXCEPTIONS TO THE GENERAL RULE (DUPLICITY)

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

In Pope vs. R74the accused was charged with fraudulent accounting false accounting contrary to

71(1960)
72 Criminal procedure code
73(1962) EA 439
74(1960) EA 132

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section 330(a) of the penal code. In the particulars it was alleged that he falsified or was privy to
the falsifying of a document .He was convicted. On appeal he argued that the charge was bad for
duplicity because it charged two offences in one count. The court of appeal held that the charge
was not duplex for it only charged one offence and was in the form authorized by the second
schedule to the criminal procedure code.

2. Where the separate offences are charged conjunctively using the word ‘and’ as
opposed to ‘or’ if the matter relates to one act. In Gichinga v Rthe appellant was
charged with driving a car recklessly. In the particulars, it was stated that he
drove in a reckless manner and at a speed which was dangerous to the public
having regard to all the circumstances of the case contrary to section 86 of the
Traffic Act.75 The Act employs ‘or’ rather than ‘and’. The magistrate acquitted the
accused because of duplicity as it alleges the commission of two offences. On
revision by the high court, it was held that the charge was not duplex and it had
been expressed conjunctively and it referred to one incident or act i.e. appellants
manner of driving at the relevant time. If it had been expressed using the
disjunctive OR. In a. reckless manner or at a high speed it would have been
duplex.

6.3.2 EFFECTS OF DUPLICITY

The law is not clear. There are two opposing views:
1. One view holds that duplicity is an incurable defect which can be cured by amending the
charge hence if found to be duplex, the accused should be discharged. This was seen in
Cherere Gukuli v R 76and followed in Saina v R77. Those who subscribe to this position
hold that a count which charges for two counts is barred for duplicity and a conviction
based on it cannot stand. In Kasyoka vs. R78, the charge sheet read that the accused had
dishonestly “received or retained” a cheques knowing or having reason to believe it to
have been stolen. The appellant had been convicted of among other offences handling
stolen property contrary to section 322(2) of the Penal code79. The state argued that the
fact that a charge was defective was not necessarily fatal to a conviction or charge the real

75 Cap 404 Laws of Kenya

76(1955) 22 EACA 478
77[1974] EA 83
78(2003)KLR 406
79 Cap 63 Laws of Kenya

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 test being whether the accused was able to understand the charge. Held the appellant
was convicted on a duplex charge and no one can state for sure which of the two offences
was committed.

2. The other view holds that the true test should be whether injustice or prejudice has been
occasioned on the accused by the duplicity so that where the accused suffers no
prejudice; conviction of duplicity should stand. This school relies on section 382 CPC
which provides for finding of a sentence or order issued by a court should not be
reversed or altered on appeal or revision on account of error omission or irregularity in
the charge unless the error omission or irregularity has occasioned a failure of justice.
This school of thought was followed in:
a. Kababi v R80. The appellant was charged in a single count with causing the death
of three persons by dangerous diving. He was convicted. He appealed,
challenged the decision of the court that it was based on a barred charge. It was
held that the failure to charge or to file three separate counts did not occasion
injustice though there was duplicity. The conviction was upheld.
b. Koti v R81: Appellate court found the charge was duplex but declined to interfere
because it did not occasion any injustice. It was held that the test in deciding
whether a failure of justice had occurred was whether the accused had been
prejudiced in his trial.
c. Mwandalafu v R82 : the appellate court found that the arson charge was duplex
but that it did not occasion any injustice. The court relied on section 382 of the
Tanzania Criminal Procedure Code.
d. Mwangi v R83. In this case, the appellant had been found in possession of a
firearm stolen thirteen months earlier when he was in prison. He had been
convicted on a single charge of being in possession of the revolver and the
ammunition without a firearms certificate and of receiving the revolver knowing
it to have been stolen. The appellate court found that the charge was duplex but
that it had occasioned no injustice. Bennet J opined that the firearm and the
ammunition could be charged in one count.

80(1980) KLR 95
81(1962) EA 439
82 [1966] EA 459
83 [1974] EA 83

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6.4 CAPITAL CHARGES
A capital charge is a formal written accusation of an offence drawn by a magistrate or by a police
officer and signed as required by law for the purpose of use in preliminary proceedings or in a
proper trial. It lies against all persons who actually commit, who procure or assist in the
commission of any crime or who knowingly harbor a felon.84Accordingly a capital charge refers
to a formal written accusation drawn against a person who if found guilty will be liable to face
the death sentence.

6.4.1 FRAMING OF CAPITAL CHARGES

The Criminal Procedure Code at Sec.135 (1) makes provision for the joinder of counts. It provides
that:
“Any offences whether felonies or misdemeanors, may be charged together in the same charge or
information if the offences charged are founded on the same facts, or form or are part of a series of offences
of the same or similar character.”
Despite the above provision, in framing a capital charge the general rule of practice is that no
other count should be joined to a count which carries a deathpenalty in the event of conviction
except where the additional count is based on precisely the same facts as the more serious charge.
In line with this, the Court of appeal has long held that it is undesirable to charge an accused
person on more than one charge of murder.85That rule has been followed in subsequent cases.
Furthermore, the same court has also laid down that a charge of murder ought not be laid with a
count of another offence.86
In the case of Yowana Sebuzikira87the Court of Appeal upheld its ruling that there should be no
departure from the established rule of practice that no other count should be joined to a count of
murder or manslaughter, except where the additional count is based on precisely the same facts
as the more serious charge.

With regard to robbery with violence, the case of Wanjala & another v. R88applies. In that case
the appellants were charged with two charges of capital robbery which was a departure from the
general rule but the Court of Appeal was of the view that no prejudice could have been caused to
the appellants as the robberies formed part of the same transaction and the evidence in support
of one charge was relevant to the other.

84 Dr. P.L.O. Lumumba[2005]A Handbook on Criminal Procedure in Kenya, LawAfrica Publishing (K) Ltd,Nairobi,48
85 Mongolia v. R [1934] 1 EACA 152
86ValeziKashiza v. R [1954] 21 EACA 389
87 [1965]EA 685

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In the case of treason, whether the same rule applies is a matter of conjecture. In practice,
however, the treason charges brought in Kenya have not contravened this rule. It is noteworthy,
however, that in a treason charge, apart from alleging the particulars of the offence, the
prosecution must also state the overt acts in the information. For instance, in the case of R v.
Raila Amolo Odinga & two others89the treason charge was drafted as follows:

CHARGE SHEET
Count 1
Statement of Offence
Treason contrary to Section 40(1) (a) (iii) and (b) of the Penal Code

Particulars of Offence
1. RAILA AMOLO ODINGA AND 2. OTIENO MAK-ONYANGO.
On diverse days between THE 15TH DAY OF July 1982 and 1st day of August,1982, in
Kenya, being persons owing allegiance to the Republic of Kenya, jointly compassed,
imagined, invented, devised or intended to overthrow by unlawful means, the
government and expressed, uttered or declared such compassings, imaginations, devices
or intentions by the following overt acts or deeds:

OVERT ACTS- RAILA AMOLO ODINGA AND OTIENO MAK-ONYANGO

1. RAILA AMOLO ODINGA: In mid-July, 1982 at Nairobi loaned Senior Private
Hezekiah Ochuka his Peugeot 504 Registration Number KVZ 642 to assist him in making
preparation to overthrow the government.

2.RAILA AMOLO ODINGA: On or about 18th day of July, 1982 visited the house of Senior
private Hezekiah Ochuka at Umoja estate in Nairobi and discussed plans to overthrow the
government with Senior Private Hezekiah Ochuka and others

3.OTIENO MAK-ONYANGO: On or about 20th day of July, 1982 inspected the house of
Albert Vincent Otieno at Ngong Road in Nairobi with a view to obtain the use of the house as
Command Headquarters for a group planning to overthrow the government.

The requirement that overt acts be stated in the information is intended to avoid uncertainty
insuch a serious and sensitive charge so as to enable the accused to prepare his defence. Further,

89

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it has been submitted that the reason for the requirement that no other count should be joined to
a capital count is that such a charge is so serious and complicated that the defence ought not to be
embarrassed by the necessity of dealing at the same time with other matters, whether of equal or
of minor gravity.90

In cases where an offence is created by one section of the law and the punishment is provided for
in another section, it is the practice to specify in the count both the punishment and the section
creating the offence. This is the practice in murder cases. In Pitalis Oval Mambia v. R,91 the
appellant was charged with murder which was expressed in the following terms:

Statement of offence
MURDER contrary to Section 204 as read with 203 of the Penal Code
Particulars of offence
PITALIS OLAL MAMBIA: On the 19th day of June,1984 at Wang’aya sub-location, South West
Kano Location in Kisumu District of the Nyanza Province, Kenya, Murdered Morris Babu….

The rule that it is better to specify in the count the punishment section rather than the definition
section has a long history.92

6.5 ALTERNATIVE CHARGES

This is a charge preferred against the accused person instead of the former charge(offence).This is
justified in circumstances where the factors attending the offence in question are not very clearly
focused with the consequence that it is not easy to discern which offence was actually committed.
The rule relating to duplicity prohibits a situation whereby two substantive offences are charged
under the same count and ordinarily even in cases where one charge has several counts to it, it is
a mandatory requirement of the law that the counts should be set out separately and the two
should be numbered consecutively.93
A good example is where a person is thought to have stolen property contrary to section 275 of
the penal code yet the prosecution is not certain that the accused actually stole .In this scenario,
the alternative of handling suspected stolen property contrary to section 322 of the penal code
may be preferred against the accused.

90Alkaeli
v. R
91Criminal Appeal No.206 of 1987, C.A, Kisumu
92Cosma s/o Nyadago v. R [1955] 22 EACA,450 (C.A)
93Lumumba PLO, A handbook in criminal procedure in Kenya (Law Africa, Nairobi 2005) pg.62.

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In Bennault Oinamo vs. R (KLR HCK)the appellant was charged with unlawfully obtaining
credit by false pretences and on appeal it came to light that the offence with which he was
charged with could not amount to a false pretense in law but there was evidence that might have
supported obtaining credit by means of fraud other than by false pretenses.
The High court ruled that in those circumstances the prosecution should have laid two separate
charges namely; one by obtaining credit by false pretenses and two by obtaining credit by fraud
other than by false pretenses.

It is also proper to charge in one count the offence of incitement to violence with an alternative
charge of creating disturbance in a manner likely to cause a breach of peace .However the trial
court is not in law permitted to make a finding on the alternative charge when a finding has been
made in the main charge(this was held in the case of Wainaina v R94)

In Kigen Arap Chemoiwa v R95, the court determined that if the prosecution is in doubt as to
whether the accused has completed an offence, it is desirable to charge him with an attempt of
the completed offence because it is always open to the trial court to convict on an attempt upon a
charge of the completed offence.
Alternative charges may be waived if the offence preferred arose from one transaction
In R v Chow (1965) 1QB 598, an English court considered that where a statute creates two rather
than three offences that is (recklessly or dangerously driving) held that “even if there are separate
offences, it is impossible to charge them conjunctively if the matter relates to one single incident.
From the foregoing, it is clear that alternative charges are a means to the end of achieving justice,
without the mischief of duplicity.

6.6 CONSPIRACY
Definition of Conspiracy given in the case of Crofter Hand Woven Harris Tweed Co Ltd
vs.Veitch, Viscount L.C said:
“Conspiracy when regarded as a crime is an agreement of two or more persons to effect any
unlawful purpose . . . and the crime is complete if there is such agreement.”
There can also be conspiracy to do a lawful purpose by unlawful means. Conspiracy is an
inchoate offence. Inchoate meaning just begun or undeveloped. Inchoate offences permit
intervention at an earlier stage before any harm has been done but where the accused begins to
manifest his criminal intention overtly. For the Actus Reus, parties must have at least reached a

94(1973) E.A 182 (ILCK).

95(1962) E.A 684 (SCK).

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decision to carry out the unlawful object.
However reaching an agreement /decision is essentially a mental operation, though manifested
by some acts of some kind. What has agreed to be done and not what in fact has been done.
Section 393 of the Penal Code 96 states:
“Any person who conspires with another to commit any felony or to do any act in any part of the
world which if done in Kenya would be a felony, and which is an offence under the laws in force in
the place where it is proposed to be done, is guilty of a felony and is liable if no other punishment
is provided to imprisonment for seven years, or if the greatest punishment to which a person
convicted of the felony in question is liable is less than imprisonment for seven years then to that
lesser punishment.”

Common Elements
• Agreement: There must be an agreement between two or more persons to effect the
particular prohibited purpose. The agreement could be express or implied. In the case of
R v Karia,97 it was held that the existence of an agreement may be inferred from the facts.
• The offence of conspiracy is complete as soon as the parties agree to effect the unlawful
purpose. Conspiracy will continue to subsist as long as they agree. It will only terminate
on its completion by performance or by abandonment or frustration.

One can join the existing conspiracy (i.e. become party to it and it is not necessary for all
the parties to a conspiracy to be in contact with each other. What is necessary is that all
parties to a conspiracy have a common purpose communicated to at least one other party
to the conspiracy.

• There must be at least two parties to the agreement but the other need not be identified.
If all the other conspirators are acquitted, the one remaining conspirator must also be
acquitted.

In the case of Mawji v R,98 the Privy Council held that the English rule that a husband and a
wife could not commit conspiracy applied to all valid marriages, including polygamous
marriages. In conspiracy both husband and wife are regarded as one person.
Under Section 394 of the Penal Code,
“Any person who conspires with another to commit a misdemeanor, or to do any act in any part of the

96Cap 63, Under Chapter XLI Section

97R v Karia 16 E.A.C.A 116
98Mawji v R

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 world which if done in Kenya would be a misdemeanor and which is an offence under the laws in force
in the place where it is proposed to be done, is guilty of a misdemeanor.

Section 395 deals with other conspiracies. It states:

“Any person who conspires with another to effect any of the purposes following, that
is to say-
a) To prevent or defeat the execution or enforcement of any written law; or
b) To cause injury to the person or reputation of any person or to depreciate the
value of any property of any person ;or
c) To prevent or obstruct the free and lawful disposition of any property by the
owner thereof for its fair value; or
d) To injure any person in his trade or profession ;or
e) To prevent or obstruct by means of any act or acts which if done by an individual
person would constitute an offence on his part, the free and lawful exercise by
any person of his trade, profession or occupation ;or
f) To effect any unlawful purpose; or
g) To effect any lawful purpose by any unlawful means, is guilty of a misdemeanor.

An example of a criminal conspiracy to make lawful protests by unlawful means was seen in the
case of R v Zulu99. In this case the accused was charged with conspiring to injure the Ndola
Municipal Council in its trade contrary to the Zambian Penal Code, by urging people to boycott
its beer. The court held that it did not matter that the ultimate object of the accused was to make a
lawful protest, if they did this by employing unlawful means, i.e. boycotting to cause financial
injury to the Council.

Under Section 317 of the Penal Code, Any person who conspires with another by deceit or any
fraudulent means to affect the market price of anything publicly sold or to defraud the public or
any other person whether a particular person or not, or to extort any property from any person is
guilty of a misdemeanor and is liable for imprisonment for three years.

In the case of Scott vs. Metropolitan Police Commissioner,100 D agreed with the employees of
cinema owners that in return for payment, they would abstract films without the consent of the
employers or owners of the copyright, so that D could make copies and distribute them for profit.

99 R v Zulu [1961]R.&N.645(N.R)
100 [1975] AC 819[1974]3 All ER 1032

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The Court held that D was guilty of conspiracy to defraud. The House of Lords said:
“ an agreement by two or more by dishonesty to deprive a person of something which is his or to
which he is or would be or might be entitled and an agreement by two or more by dishonesty to
injure some proprietary right of his suffices to constitute the offence of conspiracy to defraud”
The general rule of practice is that it undesirable to charges offences of conspiracy where specific
offences are available. This position is mainly for two reasons; first is because conspiracy has
matured into a known specific offence hence preferable to charge the offence disclosed by the
evidence101.; secondly, in a charge of conspiracy, there has to be at least two accused persons. It
has held to be improper to join other offences to a charge of conspiracy especially where the
conspiracy charge covers the substantive offences.102

6.7 JOINDER OF CHARGES/COUNTS

The legislative cushion upon which several counts may be joined Sec. 135(1) of the CPC
This provision was judiciary interpreted in the case of Ralph vs. Dalip Singh103 the appellant had
been charged jointly with another with the theft of property belonging to the Kenya Uganda
Railway and convicted of conveying stolen property. In the second count the appellant was
charged alone and convicted of bribing a police officer in order to procure the release .It was
adduced in evidence that the bribe had been given very shortly after the arrest of the two men.
On appeal, it was argued on behalf of the appellant that there had been misjoinder of offences
because theft and bribery were not offences of a similar character. It was held that although the
two offences were different in character, they were founded on the same facts as the evidence
clearly demonstrated that the bribe was offered within a very short time after the appellants were
had been arrested.. This demonstrates that it is not necessary that the offences are of the same
character and nature as a condition precedent to their inclusion in one charge under different
counts. The above is true notwithstanding sec.135(1) which provides “any offenses ,whether felonies
or misdemeanors may be charged together in the same charge or information if the offences charged are
founded on the same facts ,or form part of a series of offences of the same or similar character”

In Kamwana s/o Mutia vs. R104, the question which arose was whether the trial would be a
nullity where there was a joinder of counts for dissimilar offences in one charge sheet. The
appellant appealed against conviction and sentence on three counts involving “theft”, “breaking
and entering premises”, and “possession of bhang.” The fourth charge was not treated as an issue

101 Procedures in Criminal Law in Kenya by MomanyiBwononga

102 Uganda V Milenge&Anor (1970) E.A 269 (CA)
103 1943 1 EACA 121
104 (1952) EA 471

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at the trial but when the appellant had been convicted on the other three counts, he asked that
this offence be taken into consideration whereupon the magistrate purported to convict him of
this offence and composed for it a separate sentence.

On appeal, the supreme court of Kenya held that the count charging the appellant with
possession of bhang shouldn’t have been included in the same charge sheet with the other three
dissimilar counts .but since no injustice resulted from the improper joinder, the trial of the other
three should not be treated as a nullity

So long as the anomaly of misjoinder does not occasion an injustice courts are ready to disregard
the impropriety of technicalities and deal with substantial justice. This position prevails even in
English courts .In R v. M (1938)105the appellant was convicted upon an indictment which charged
four offences, 2 of rape of a young girl on 2 occasions, a third of stealing from the girl’s father and
a fourth of indecent assault on a married woman. He appealed on the ground that the two
charges of rape and indecent assault should not have been tried together.However, the court only
ruled as to the desirability of the two dissimilar offences being tried and charged separately and
upheld the conviction noting that the impropriety did not occasion a miscarriage of justice to the
accused.

6.7.1 JOINDER OF PERSONS

Section 136 of the Criminal procedure Code spells out the circumstances under which persons
may be joined as co-accused persons. Persons who join in the commission of an offence may in
law be jointly indicted for it or each of them may be indicted separately.106
In Nathan vs. R107the appellant who was a travel agency proprietor was charged together with a
public officer on a number of counts. He was convicted on one count of wrongfully and corruptly
giving money to a public officer. The officer was convicted in the same trial for receiving the said
bribe. On appeal, it was held by the East African court of appeal that there had been no such
misjoinder as the concatenation of events was uninterrupted and therefore the offences
constituted the same transaction.
In Yakobo Uma and another vs. R108, the two appellants were charged and tried jointly for the
offence of “doing an act intended to cause grievous harm” Only the first appellant was charged
on the second account. The allegations in the particulars showed that the incident involving the

105 2 ALL ER 516

106 Criminal Procedure in Kenya by PLO Lumumba at page 64
107 [1965] EA 777
108 [1963] EA 542

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first appellant occurred on a different date and place and with a different weapon from the one
said to involve the second appellant. The complainant was however the same in each count.. On
appeal, Sir UdoUdoma CJ ruled that the charge as laid down was bad in law for misjoinder.

6.8 AMENDMENT OF CHARGES

Sec 214(1) of the C.P.C Provides where at any stage of a trial before the close of the prosecution
case, It appears to the court that the charge is defective either in form or substance, the court may
order for its amendment to bring it in line with required style Once the charge has been
amended, an accused person should be called upon to plead to the amended charge. However, a
simple variance between the charge and the evidence adduced (for
Example with respect to the time for which the alleged offence was committed) is immaterial and
the charge need not be amended, especially if it is proved that the proceedings were instituted
within the time (if any) limited by law for the institution thereof.
Sec275 (1)109 provides for the amendment of information, every objection to information for a
formal defect on the face thereof shall be taken immediately after the information has been read
over to the accused.
When information is amended a note of the order for the amendment shall be endorsed on the
information and the information shall be treated for all purposes of the proceedings as having
been filed in the amended form as provided in Sec 275(3)110.

Where such an amendment is made, the accused shall be required to plead afresh to the charges.
The court is thus required to inform the accused of his right to plead to the new charges and also
to recall any of the witnesses who have already given evidence for the prosecution for purposes
of cross examination in light of the amended charges.

The purpose of this is to give the accused an opportunity to prepare his defense in the light of the
amended charge. The position at Kenyan law is that the courts can amend the charge in the
course of a trial but this should be done at the earliest opportunity before the close of the
prosecution case.111
However some East African cases suggest that an amendment can be done even after the close of
the prosecution case. In MaulidiAbdalla Change vs. R112a charge was amended at the close of the
defence case with the result that a new charge with a heavier penalty was introduced. Sir Ralph

109 Criminal procedure code

110 Criminal procedure code
111 Section 214 CPC
112 (1964) E.A122,

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Windham stated interalia that a charge can be substituted even after the close of the defence case,
but the substituted charge can only be allowed if it will not occasion injustice to the accused
person.
In Benjamin Sauzier vs. R113, the appellant appealed against his conviction of attempted arson.
The appeal was dismissed but the appellate court commented on the aspect of amending the
charge even after the prosecution case .In this case, at the end of the prosecution, the evidence
had disclosed attempted arson only. The trial judge then upheld a submission of no case to
answer, but having regard to the provisions of the C.P.C ordered that the charge be amended to
attempted arson and took the appellants plea on the amended charge.
The court held interalia that it is not necessary to amend a charge of committing a full offence in
order to convict an accused person of an attempt. However, in amending a charge, the court is
not entitled to make a new case other than the one put forward by the prosecution.

6.8.1 QUASHING OF INFORMATION (MOTION/APPLICATION TO QUASH)

It was the rule of common law that if an indictment or inquisition was bad on the face of it, or
there was any such insufficiency either in the caption or in the body of an indictment as would
make erroneous any judgment whatsoever given or any part thereof , the court may in its
discretion quash the indictment114. For instance a number of persons may not be indicted jointly
for an offence which must be several. In R v tucker115,an indictment against six people for
unlawfully exercising a trade that was quashed because it was a distinct offence in each case and
could not be made the subject of joint prosecution.
In R vs. Phillips116judgment was arrestedon an indictment of six persons (to which four pleaded
and were convicted)on the ground that the offence was in its nature several and could not be
indicted together for it.
It has however been stated in R vs. The chairman of London Sesions ex parte Downes117 that a
court is not entitled to quash an indictment because an examination of the dispositions has led it
to the conclusion that the prosecution would not succeed on the account.
In Kenya section 276 of the criminal procedure code provides for quashing of information. it is
provided that if information does not state , and cannot by amendment authorized by section 275
be made to state an offence of which the accused has had notice , it shall be quashed either on a
motion made before the accused pleads or a motion made in arrest of judgment .
In the event that section 276 is invoked, a written statement of every such motion shall be

113 (1962) EA 50
114 See Arch bold Jf: evidence, pleadings and criminal practice, London, sweet and Maxwell, (5th edition) 1962 at 88.
115 4 Burr 2046
116 2 str 921
117 1954 1 QB 1

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delivered to the registrar or other officer of the court by or on behalf of the accused and shall be
entered upon the record.
If an information does not state and cannot even after amendment be made to state an offence for
which the accused has had notice, it shall be quashed either on a motion, made before the
accused, pleads or on a motion in arrest of judgment (276(1)) CPC. The motion shall be written
and delivered to the registrar or other officer of the court (section 276(2) CPC.

CHAPTER SEVEN
PLEAS
7.1 INTRODUCTION
A plea is a formal statement made by or on behalf of a person charged with an offence in a law
court. The basis of plea taking in Kenya is Article 50 (2) (a)of the Constitution of Kenya 2010.
According to Article 50 (2) (a)(2) Every accused person has the right to a fair trial, which includes the
right— to be presumed innocent until the contrary is proved;

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Arraignment of an accused person consists of three parts. First being called to bar by name,
secondly having the indictment or charge read to him and thirdly being asked whether he is
guilty or not.

According to Article 50 (2) (b) of the Constitutionof Kenya2010,to be informed of the charge,
with sufficient detail to answer it;”Article 50(2) (g) “to choose, and be represented by, an advocate, and
to be informed of this right promptly;

7.2 NATURE OF PLEAS

Section 207 of the Criminal Procedure Code provides that the substance of the charge shall be
stated to the accused and he shall be asked whether he admits or denies the same. If the accused
admits the charge, his admission shall be recorded as nearly as possible in his own words and the
court shall convict him and record his conviction. Provided that after such conviction and before
passing or making any order the court may permit or require the complainant to outline to the
court facts upon which the charge was founded.

According to sub-section (3) of section 207, if the accused person does not admit the truth of the
charge, the court shall proceed to hear the case. If the accused person refuses to plead, the court
shall order a plea of “not guilty” to be entered for him.

If the accused person pleads under sub-section (5), that he has been previously convicted or
acquitted on the same facts of the same offence; or that he has obtained the President’s pardon for
his offence, the court shall first try whether the plea is true or not, and if the court holds that the
evidence adduced in support of the plea does not sustain it, or if it finds that the plea is false, the
accused shall be required to plead to the charge.

In Koech vs. R118, the appellant was charged with having in his possession 13 gramophone
records which the police alleged had been stolen. The appellant about these facts had said, “It is
true, I admit the charge as read out to me”. He was thereupon convicted and sentenced. He appealed
against the conviction and the appeal was upheld on grounds that, first, the admission of all facts
in the charge is not necessarily a plea of guilty and, secondly, if an accused admits the assertions
of fact but proffers an explanation, the accused’s statement should be treated as a plea of “Not
guilty” and then the prosecution will be required to lead all their evidence.

118 1968 EA 109

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7.3 TYPES OF PLEAS
There are number of ways in which an accused can plead to the charge of a criminal offence.
These include;
1. Plea of Guilty
2. Plea of not guilty
3. A plea to the jurisdiction of the court
4. A plea in abatement of an indictment
5. A plea in bar of an indictment or charge

7.3.1. PLEA OF GUILTY

A plea of guilty is a formal admission in court as to the guilt by an accused person. This plea
however must be unequivocal for it to be valid. For it to be unequivocal certain proceedings
must be observed. For instance In R v. Yonasni Egalin[1942] it was observed that, “Its desirable not
only that every constituent of the charge should be explained to the accused but also that he should be
required to admit orally every constituent of the offence charged. If the accused is not represented care must
be taken that he fully understands the elements of the crime to which he is pleading guilty.”

According to section 281 of the Criminal Procedure Code, if an accused person pleads guilty, the
plea shall be recorded and he may be convicted thereon.

7.3.2 UNEQUIVOCAL PLEA

A plea is said to be unequivocal when it has been properly taken in accordance with the laid
down procedures of the law. It is only an unequivocal plea of guilty that binds on an accused
person. The principles governing the taking of an unequivocal plea were set out in the case of
Adan vs. R (1973) EA 445 as follows:

1) The accused person must be fit to plead

The court is therefore required to take steps to ensure that the accused is fit to plead in that the
accused is not deaf or mute and if he is so the court should ensure that he is made to understand
the progress of the proceedings. This can be done by writing down for him to read or bringing in
a sign language interpreter depending on what he understands. In the event that the magistrate
ascertains that the accused is of unsound mind the case should be adjourned.

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In a Tanganyika case of R vs. Bubu (dumb man) 1959the high court held that where an accused is
deaf or mute should first of all the court should find whether the accused can be made to
understand substantiality the whole of proceedings before proceeding with the case. The judge
stated that; in the first place, as soon as a magistrate becomes aware that the accused is deaf, he should
apply his mind to the question of whether the accused can be made to understand the proceedings, which in
my opinion, is understanding substantially the whole of the proceedings. I say this because obviously few
accused persons will understand technical evidence but they can be made to understand its effect. A
deaf/mute can be made to understand the proceedings if he can read and write or communicate by sign
language and for the latter purpose, arelative/friend duly sworn may be employed to interpret if the
magistrate finds that the accused can be made to understand the proceedings

2) The accused must plead directly not through an advocate.

It is regarded both in English Common law and in Kenya that the accused must plead to the
charge himself. According to the English case ofR vs.Heyes“it’s not sufficient for counsel of the
accused to plead for him” And in the E.A. case of Manager Tank Building Contractors vs. R. [1968]
A Tanzanian High Court held that “it is only in cases where the attendance of an accused is
expressly dispensed with that an advocate is entitled to plead for him. In all other cases only the
accused can plead to the charge brought against him.” A situation somewhat similar to this arose
in Cr. App. 210 of 1965 DPP V. Vincent Mrefu reported in supplement 1 of 1967. In that case an
advocate had pleaded guilty in court on behalf of the accused. Barnerman J. held “The only
exception in which an advocate can plead on behalf of an accused is provided for in Section 99 of Criminal
Procedure Code that is in cases where the personal attendance of the accused is dispensed with. But the
court noted that an accused whose attendance had not been expressly dispensed with can plead guilty in
writing. He can send his advocate with his written plea of guilty.”

3) The charge must be read and explained to the accused

Section 207 (1) of the Criminal Procedure Code requires that the substance of the charge shall be
stated to the accused person by the court and he shall be asked whether he admits or denies the
truth of the charge. In the High Court it is required that the information be read over to the
accused by the registrar or other officer of the court and to be explained if need be by the officer
or interpreter before the accused is asked to plead. This requirement imposes a duty on the court
to read and explain the substance of the charge .In the case of Adan v. R (1973) EA 445, the
accused was charged with the offence of stock theft. He was recorded by a Wajir resident

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Magistrate as having pleaded guilty convicted and sentenced on 2nd appeal on ground that the
plea wasn’t unequivocal the East Africa Court of Appeal held inter-alia that the charge and all the
essential ingredients of the offence should be explained to the accused in a language he
understands.

Spry V.C stated, “When a person is charged, the charge and the particulars should be read out to him. The
magistrate then explains to him all essential ingredients of the offence charged. The reason for this
requirement is that often people misunderstand the proceedings and end up pleading to things they don’t
understand.”

4) The charge or information must not be defective

The charge sheet must be properly drawn as to disclose the offence charged. Consequently a
purported plea of guilt to a defective charge is not a plea at all and a conviction on such a plea
shall be quashed. Section 134 – 137 of the Criminal Procedure Code stipulates how a charge shall
be properly drawn.

A defect in a charge may arise from the fact that a charge has charged more than one offence in
one count for example in Renyai Ole Mesami v. R. [1985] the High Court held that the conviction
of the applicant was wholly erroneous and not supportable. The applicant had been convicted on
his own purported plea of guilty on a charge whose particulars stated that on 4th march 1985 at
about 7.00pm the applicant knowing that Awori Pius a girl aged 15 years was an idiot or imbecile
had attempted to have unlawful carnal knowledge with her. On appeal Omollo J in his holding
observed that the charge was defective because it charged the applicant with two offences in one
count the offence of defiling an idiot or imbecile and on the other offence of attempting to defile.
The judge said at the end of his judgment “the magistrate wisely said that he found the accused guilty
as charged and convicted him. It is not stated which of the two offences charged the Magistrate convicted
him of”

5) The facts must also be read to the accused

In addition to reading the charge to the accused the prosecutor is required to read the facts of the
case too before asking the accused to plead thus it is not enough that the facts are stated in the
charge sheet. This helps to guard against causing the accused to plead guilty to wrong facts. If
that happens, a conviction will not stand. This was so in Njoroge Kabiri Ndwedwe v.R [1985]
the applicant had been charged with the offence of attempted defilement of an imbecile. He
admitted both facts and charge, but facts admitted didn’t indicate that the applicant was aware

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the girl was an imbecile. The High Court stated “Indeed it would appear that the applicant and
Lokoline were strangers to each other and from the fact stated by the prosecutor there was nothing which
would lead anyone to the conclusion that seen through the applicant didn’t know Lokolino, the applicant
must have known that she was an imbecile If the applicant e.g. had met her walking about naked that may
well be a fact which would have indicated to him that she was an imbecile But there was no such allegation
and indeed despite her alleged imbecility she still resisted the applicant shouting for help and there was
really nothing to make the applicant know she was an imbecile’’.

6) The accused must admit to both the charge and the facts read to him before he can be said to
have pleaded guilty. Such admitted facts must disclose and or reveal the offence charged. He
must admit all ingredients of the offence charged both the actusreus and the mensrea.

7. The plea of the accused must be properly recorded

Where it is intended to hold him guilty on his own plea, then preferably all he says in answer
must be recorded as clearly as possible and such record must show the language used and
whether or not there was any interpretation from one language to another and if so the name of
the interpreter.
8. The plea must be taken by a competent judicial officer not just a court clerk.
9. In cases where the accused disputes the facts of the charge, a plea of not guilty must be entered.
Where there is more than one accused jointly charged, the plea of each shall be recorded
separately, and if a charge or indictment contains several counts, the accused must be asked to
plead to them separately.

7.3.3. PLEA OF NOT GUILTY

In a plea of not guilty the accused person controverts the existence of every fact essential to
constitute the given charge and thereby puts in issue every essential element of the offence
charged. According to Halisbury’s laws of England, “by a plea of not guilty the defense thereby puts
himself upon the country for trial and the court must there upon order a jury to be called in the usual
manner for the trial of the defendant”. The prosecution is then called upon to prove all the essential
elements of the offence charged by adducing evidence.

According to section 208 of the Criminal Procedure Code, if the accused person pleads not guilty,
the court shall proceed to hear the complainant, witnesses and other evidence if any.The accused
person or his advocate may cross examine each witness of the prosecution. If the accused is not
represented, at the end of each prosecution witness’s evidence; the magistrate asks the accused if

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he has nay questions for the witness. If the accused asks questions, the answers are recorded and
if he says that he has none the same shall be recorded too.

7.3. 4. PLEA TO THE JURISDICTION OF THE COURT

Each court has its jurisdiction set out either by the constitution or the statutes. Article 50(1) of the
Constitution provides that unless a charge is withdrawn, the case shall be afforded a fair hearing
within a reasonable time by an independent and impartial court established by law. When the
law establishes a court it spells out its jurisdiction and delineates the scope of its jurisdiction.

A court that has no jurisdiction to try the case cannot take the plea of an accused and cannot
therefore be arraigned by such a court. In the trial case of R v. AmbariJuma (1959) the court held
that in views of the provisions of section 203 of the Tanzania Criminal Procedure Code the plea of
an accused person couldn’t lawfully be taken by a court, which has no jurisdiction to try the
offence. In this case the accused was charged with defilement of a girl under 12 years contrary to
section 136 of Penal Code he was taken before a 3rd Class Magistrate who convicted him of
indecent assault contrary to section 135(d) of Penal Code.

There was no record on evidence that the accused was asked to plead to the charge at the trial,
nor was there any record that he was reminded of his earlier plea. In the exercise of its
jurisdiction of revision the High Court considered the validity of the proceedings and held that
the 3rd Class Magistrate court had no jurisdiction to take the plea of the accused since it had no
jurisdiction to try the case. Mohan Achieng C.J said “But with respect I don’t think that it was even
intended to suggest that a plea should be taken by a magistrate with no jurisdiction to try the offence
charged. To conclude the opinion after considering section.4, section 203 and the first schedule of the CPC
that an accused can’t be lawfully arraigned in this territory before a court which has no jurisdiction to try
him although such a court would remand him or admit him to bail”. An accused can therefore plead
that the court has no jurisdiction to try him.

7.3.5. A PLEA IN ABATEMENT OF AN INDICTMENT

This is a plea in which the accused challenges irregularities and defects that may be apparent on
the record or not. These irregularities must go to the real merits of the case. If this plea is found
for the defence, it will abate the indictment. In Kenya this type of plea is unknown since most of
the matters that would be pleaded under this plea are in most cases raised as objections after a
plea has been entered.

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7.3.6 A PLEA IN BAR OF AN INDICTMENT OR CHARGE
This is a plea which goes to bar the other party’s action and thus defeating it absolutely and
entirely. A plea in bar sets forth matters which per se destroy the right of action and bars its
prosecution absolutely e.g. a bar by the statute of limitations. A plea in bar of an indictment or
charge denies the other party the right to maintain an action and if established destroys the
action. In English Common Law there are four special pleas in bar of an indictment. These are;

a) Plea of autrefois acquit or convict

b) Plea of pardon
c) Plea as to limitation of time

7.3.6.1 PLEA OF AUTREFOIS ACQUIT OR CONVICT

According to section 279 of the Criminal Procedure Code;
1. An accused person against whom an information is filed may plead;
a) that he has been previously convicted or acquitted of the same offence; or
b) That he has obtained the President’s pardon for his offence.

2. If either of those pleas are pleaded and denied to be true, the court shall try whether the
plea is true or not.
3. If the court holds that the facts alleged by the accused do not prove the plea, or if it finds
that it is false, the accused shall be required to plead to the information.
These two pleas are premised upon the common legal maxim (res judicata)which states no man
shall be tried for one and the same offence more than once. These pleas have been on several
times referred to as plea of prior jeopardy.

The essence of this plea is that where a criminal charge has been adjudicated upon by a court
having jurisdiction to hear and determine it, that adjudication, whether it takes the form of an
acquittal or conviction is final to the letter and may be pleaded in bar to any subsequent
prosecutions for the same offence.

In order to ascertain whether the offence is the same as that of which the accused has previously
been found guilty the court will pay attention to the essence of the offence and not to
technicalities. It’s the ratio decidendi of the previous judgment, which is binding. It will be
sufficient if the offence is substantially the same. The test is not a formal one. This was held in R
v Duadji (1948) 15EACA 89

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7.3.6.2 PLEA OF PARDON
A plea of pardon may also be specially pleaded to bar the proceedings against the accused
person. This plea may be raised in bar of an indictment or after judgment, in bar of execution.
There may be pardon by statute or what has been called a loyal pardon. In Kenya the Constitution
stipulates that a person shall not be tried for a criminal offence if he can prove that he has been
pardoned for that offence. Under Article 133 of the Constitution of Kenya 2010 situations are
listed under which pardon maybe claimed. This section incorporates what is commonly referred
to as prerogative of mercy.

7.3.6.3 PLEA AS TO LIMITATION OF TIME

An accused may plead that the charge is barred by limitation of time and in effect the prosecution
will terminate. In criminal law there are certain offences, which must be prosecuted within a
specified period of time e.g. section 45(d) of Penal Code provides that the offence of treason must
be prosecuted within 2 years of its commission. On the other hand section 219 of CPC require
that an offence the maximum punishment for which does not exceed imprisonment for six
months or a fine of kshs.1000 or both should be triable by a subordinate court only if the charge
or complaint relating to it is laid within 12 months from the time when the matter on the charge
or complaint arose.

7.3.7 CHANGE OF PLEA

The accused may change the plea of not guilty to that of guilty in the course of a trial. It may also
be changed after the conviction but before sentence. In Mwakerav.R119, the appellant had been
allowed to change her plea of guilty to one of not guilty after conviction but before sentence. The
court held that a plea of guilty may be changed on reasons to be recorded after conviction but
before sentence. The court observed that it is quite clear that a guilty plea may be withdrawn
with leave of the court before sentence and this is entirely in a matter for the court’s discretion.

In Kamundi v. R (1973) EA 540, the court held that, there are no provisions regarding change of
plea, there are equally no provisions to prevent a change of plea before the court becomes
“functus officio”. The same was held in Maumba v. R (1966) EA 167, It was stated that a
magistrate powers to allow amendment including plea exists only during trial before conviction
and before court becomes “functus officio”.Therefore, when a court has determined a case by
passing a sentence it is functus officio and has no power to re-open the case either of its own

119 (1982-88) I KAR 1043

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motion or on an application of the prosecution or defence.

7.4 PLEA BARGAINING

The practice of plea bargaining has evolved in Kenya in homicide offences where the accused
offers to plead to a lesser charge of manslaughter.Plea bargaining is simply an agreement
between the defendant (with advice of his advocate) and the prosecution, that in exchange for a
plea of guilty he will receive favourable consideration by the court. i.e. being charged with a less
serious crime resulting to a lighter sentence.

7.4.1 ADVANTAGES OF PLEA BARGAINING

1. Helps the criminal justice system to clear and decide cases faster, thus avoids overcrowded
court docks and backlog of cases.
2. Reduces the states expenditure that will have been incurred in trials.
3. Saves time on prolonged process of litigation

7.4.2 DISADVANTAGES OF PLEA BARGAINING

1. The defendant even though innocent may plea guilty for fear of harsh sentence.
2. The judicial system may be viewed as soft on hardened criminals who plead guilty for lesser
offences in order to evade rigorous punishment

CHAPTER EIGHT
BAIL AND BOND
8.1 INTRODUCTION
The law guards against interference with the liberty of an individual. Bail protects a person’s
liberty during the pre-trial and trial stages. The law on bail is based on the Constitution,
Criminal Procedure Code and rules derived from Court Practice.
Section 29 of the CPC allows a police officer to arrest without a warrant a person whom he has
reasonable suspicion is about to commit a felony or has committed it. The interpretation of

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reasonable suspicion is very wide as illustrated by M’Mbui vs. Dyer 1967 E.A. 315 the case
suggests that even where the suspicion is incorrect it does not matter except that the
circumstances were reasonable.

Bail means an agreement between the accused person and the court that he /she will deposit a
certain amount of money fixed by the court (Cash Bail) to guarantee his attendance until the
determination of the matter.
Bond means an official document/agreement between a 3rd party (surety) on behalf of the
accused person; and the court that he/she will pay/ forfeit the agreed sum in the bond to the
court or surrender the security if the accused persons absconds and does not stand trial. The
surety will deposit sufficient security (Bond) as determined by the court and if the accused
person absconds, the same shall be surrendered to court.
Surety is the person who takes responsibility for the attendance of the accused person until the
determination of the trial.

The law on bail & bond is derived from;

• The Constitution
• International instruments
• Subsidiary legislation
• Court practice(Caselaw)

Objects of Bail
• To shield the individual from pre-trial incarceration.
• To minimize the interference with an accused person’s freedom.
• To avoid anticipatory punishment before conviction and sentence.
• To give force to the presumption of innocence i.e. an accused person should not be
punished for an offence for which he has not yet been convicted.

Proceedings
At the close of the plea-taking proceedings, where the accused person pleads not guilty to the
charges, the court will impose an amount of money to be paid to directly in court (cashier’s
office) to secure the release of the accused person(s) awaiting trial. The amount is called Cash
bail.

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In other instances, taking into account the circumstances of the case, the court may impose sum
of money to be guaranteed by surety (sureties) who will deposit in court security (securities) so
as to secure the release of the accused person(s). This is called bond or recognizance.

8.1.1 THE RIGHT TO BAIL

Section 72(5) of the repealed Constitution guaranteed the right to liberty to every citizen except
in the following situation;
• Where one is charged with an offence and it is not bailable
• Where one is charged with a bailable offence and there are legal issues that curtail
release.

RIGHTS OF ARRESTED PERSONS Article 49 (f)

• To be brought before court as soon as reasonably possible, but not later than;
• 24 hours after being arrested; or
• If the 24 hours end outside ordinary court hours, or on a day that is not ordinary court
day, the end of the next court day;

Art. 49 prescribes
• Mode of arrest
• Timeframe
• Arraignment process

Article 49 (g)
• At the first court appearance, to be charged or informed of the reason for the detention
continuing, or to be released; and
Article 49 (h)
• To be released on bond or bail, on reasonable conditions, pending a charge or trial,
unless there are compelling reasons not to be released.

Article 2 (5)
• The General rules of international law shall form part of the law of Kenya
Article 2 (6)
• Any treaty or convention ratified by Kenya shall form part of the law of Kenya under
this Constitution.

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INTERNATIONAL INSTRUMENTS
• Charter of the United Nations 1945 ( Art 62)
• Universal Declaration of Human Rights 1948 ( Art 1)
• International Covenant on Civil & Political rights 1966 (Art 9 (3) )
• International Covenant on Economic, Social & Cultural Rights 1966
• African Charter on Human and Peoples’ Rights’ (Art 7 (1) (b))

SUBSIDIARY LEGISLATION
• Judicature Act- sources of law
• Police Act- pre-trial processes
• Criminal Procedure Code- mode of arrest, drawing charges, bail and bond, plea-taking
and trial process
• Evidence Act- types of evidence, collection & presentation of evidence
• Penal Code- describes offences under the criminal justice system

CONSTITUTION
• The subsidiary legislation shall be read, interpreted and applied in line with the
Constitution.
• Sixth Schedule Part 2 Art 7
• “All laws in force immediately before the effective date continues in force and shall be
construed with the alterations, adaptations, qualifications and exceptions necessary to
bring it to conformity with the Constitution.”
• The constitution implementation process includes harmonization of laws to align the
law with the provisions of the Constitution

Under the Constitution of Kenya 2010 the legal position of on bail has reverted. Article 49(1) (h)
of the Constitution sates that a person who has been arrested has the right to be released on
bond or bail pending charge or trial.120 The terms of bond or bail are to be reasonable without

120Article 49 of the Constitution (1) An arrested person has the right—

(a) to be informed promptly, in language that the person
understands, of—
(i) the reason for the arrest;
(ii) the right to remain silent; and
(iii) the consequences of not remaining silent;
(b) to remain silent;
(c) to communicate with an advocate, and other persons whose
assistance is necessary;
(d) not to be compelled to make any confession or admission
that could be used in evidence against the person;
(e) to be held separately from persons who are serving a
sentence;

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classification or distinction between bailable and non-bailable offences. Inevitably this position
becomes the first one to attract much contestation in the courts as. Persons charged with capital
offences suddenly sought admittance to bail.

Bail/ bond may be granted in the following circumstances;

• If it is in line with Article 49 of the Constitution and section123 of the Criminal
Procedure Code
• If the trial will not occur within reasonable time;
• If the accused person’s release will not be prejudicial to the trial;
• If the accused person is not likely to abscond
• If the accused person will not interfere with the witnesses or investigations
• If the health or welfare of accused person is at serious risk.

8.3 TYPES OF BAIL/ BOND

• Trial Bail (before hearing)
• Bail pending appeal
• Renewed bail applications- variation- reasonable bail
• Bail/ bond to keep peace (repealed?)
• Anticipatory Bail/ bail pending arrest ?(Art 22 & 49)
The right to be released on bail or bond can arise at 3 different stages
 At the pre-trial stage
 After being charged in court, pending trial, conviction and sentence.
 After conviction and sentence pending appeal.

8.3.1 ANTICIPATORY BAIL

The right to anticipatory bail also known as bail pending arrest, is not provided for expressly
under the Constitution or the Criminal Procedure Code. Reference to past case law shows the
mistake that most advocates make when proceeding to court, to apply for anticipatory bail in that

(f) to be brought before a court as soon as reasonably possible,

but not later than––
(i) twenty-four hours after being arrested; or
(ii) if the twenty-four hours ends outside ordinary court
hours, or on a day that is not an ordinary court day, the
end of the next court day;
(g) at the first court appearance, to be charged or informed of the
reason for the detention continuing, or to be released; and
(h) to be released on bond or bail, on reasonable conditions,
pending a charge or trial, unless there are compelling reasonsnot to be released.
(2) A person shall not be remanded in custody for an offence if
the offence is punishable by a fine only or by imprisonment for not
more than six months.

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they rely on section 123 of the Criminal Procedure Code or Article 49 of the Constitution.

Section 123 provides that a person other than a person charged with robbery with violence,
attempted robbery with violence murder, treason and drug related offences are arrested or
brought before court after being charged may apply for bail. Consequently this provision does
refer or apply to applications for bail pending arrest. Further section 355 and 356 of the Criminal
Procedure Code relate only to applications for bail pending appeal. Section 22 of the Police act
provides allows police officers investigating an alleged criminal offence to require the bond be
deposited so as to ensure court attendance.

8.3.2 PRE-TRIAL BAIL

Where an offence is bailable, the court has discretion to grant or refuse to grant bail depending on
the circumstances of the case. The test to be applied in granting or refusing to grant bail to an
accused is whether such person will appear at his trial if granted bail.

Some of the things taken into account before granting or refusing to grant bail include:-
1. Fear of absconding
The requirements as to bail, are to secure the attendance of the prisoner at the trial whenever he
is required to do so. Where the court can call for adequate and sufficient sureties and impose
suitable requirements to ensure the attendance of the accused, bail should be granted. The risk
that the accused might take flight should be weighed in light of factors such as mobility of an
accused and his access to overseas travel.

2. Fear of further offences

R V Phillips [1974] AC 111 at 334, the accused had committed nine offences while on bail. The
court held that to let such a man loose in society until he has received his punishment for an
offence which is not in dispute is very inadvisable.

3. Interference with witnesses

If the prosecution is relying on this ground, the allegation should be supported by facts showing
reasonable cause for the belief e.g. where the alleged offence is comparatively serious and there is
some other indication such as a past record of violence. The prosecution must show that there is a
real risk that the accused will interfere with witnesses. There must be a reasonable possibility of
such interference.

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 4. Nature and seriousness of the offence
The more serious the offence charged, the stronger the temptation to abscond. Kenyan courts
have given the gravity of the offence great weight in bail determinations.

5. The severity of punishment

The accused’s perception of the probable consequences of a conviction has a considerable effect
on his reaction to bail. Where the offence is likely to attract a fine rather than imprisonment, bail
is easily granted.

6. Illness
In Charles Ogutu V. R, it was held that an accused person who fails to attend his trial because he is
undergoing medical treatment and sends a person to inform the court about it cannot have his
bail cancelled.
7. Delays
It can be by the prosecution or the accused. The prosecution can cause delays by failing to indict
or try the accused. This can lead to an accused being released on bail. The accused can also cause
delays by postponing the date for the trial if he is already out on bail. The court can in this case
withdraw bail where it had been granted.

The court in R vs. Muturi Kigano held that if the court for any reason believes that the
adjournments sought by the defence are not genuine, they can cancel bail and have the case
proceed with expediency.

8. The Accused’s Character and antecedents

These include an accused person’s previous convictions, abuse of bail in the past or if the accused
is on bail in respect of another charge. However, the accused’s previous convictions may not
necessarily provide a reliable guide to his likely reaction to bail unless they disclose a large
number of serious offences.

9. Security of state and public order

Depending on the circumstances of the case, the risk to security of the state may not be a
sufficient ground of denying bail to an accused. It is unconstitutional to refuse bail unless a case
is made out of doing so. In offences that touch on public order, the element of security of state
may be taken into account in refusing bail.

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In Willy Mutunga vs. R it was held that rights and freedoms of an individual as enshrined in the
Constitution are to be enjoyed subject to respect of rights and freedoms of others and for the
public interest. Constitutional rights exist and are enforceable only where law and order prevail,
for once peace and stability disappear, such rights could not be enjoyed. Enjoyment of rights and
freedoms of an individual should not prejudice the rights and freedoms of others or the public
interest.
10. Other factors to be considered
 The accused person’s association and community ties e.g. whether he is a
citizen or an immigrant.
 The strength of the evidence against the accused person.
 The strength of the case against the accused. The court may take into account
the fact that there is a strong case against the accused and that if he is
released, there would be a real incentive to evade trial or destroy evidence.

8.3.2.1 Non-compliance with Bail Terms

An accused person who has been released on bail on certain conditions is duty bound to observe
those conditions failure to which his bail may be cancelled and he will be ordered to pay the
sums of money in the recognizance (bond) in the court.
Before a court orders forfeiture of an accused’s bond, there has to be sufficient proof by way of
evidence on oath, to warrant such forfeiture. Once an accused person is on bond, his bail should
not be cancelled unless there is a real danger that the accused will abscond or there is a danger
that he may interfere with witnesses.

8.3.3 BAIL PENDING APPEAL

This is granted depending on the cogency of the grounds of appeal, exercise of the court’s
discretion and the particular facts of the case. The principles governing the grant of bail pending
appeal differ from those governing bail before conviction and include:-
i) Whether leave to appeal has been granted.
ii) Whether there is a strong likelihood of success of the appeal.
iii) Whether there is a risk that if bail is not granted, the sentence will have been
served by the time the appeal is heard.

In Shah V. R [1976] CA (UR) it was held that rather than grant bail, steps should be taken to see
that the hearing of the appeal is expedient and that bail should be granted only in exceptional

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cases.
In Somo V. R [1972] EA, 476 the court held that for bail to be granted, the accused must
demonstrate that there are exceptional or unusual circumstances in the case.
In Motichand V. R [1972] EA, 399 bail was granted on the ground that the appeal had a probable
chance of success.
A single factor is not enough to warrant a grant of bail but the totality and cumulative
considerations of all the facts of the case.

8.3.4 BAIL PENDING APPEAL ON A PLEA OF GUILTY

According to Section 348 CPC, an appeal will not be allowed if the accused is convicted on his
own plea of guilty unless as regards the legality of the sentence.
In Merali V. R [1972] EA, 47 the Appellant had been charged and convicted of an Exchange
Control offence on his own plea of guilty. He filed an appeal claiming that the plea was
equivocal. He applied for bail pending appeal. Notwithstanding the plea of guilty, the court held
that where and if the requisite tests were met, bail would be allowed.

R vs. Heifer [1951] 1 KB, 29 – It was held that the bar by section 348 CPC is only to the extent that
the plea is not bereft of legality i.e. it must be unequivocal and be freely given by the accused. The
accused himself must in fact plead and it is not enough that counsel pleads on his behalf by
indication or otherwise. Harris J gave four conditions to be considered:-

The character of the Applicant.

The possibility of substantial delay in the hearing of the appeal.

Whether the offence with which the applicant was charged involved personal
violence.

That the appeal is not frivolous or vexatious and has a reasonable possibility of
success.

In Raghbin Singh Lamba vs. R [1958] EA, 337, Spry J held that the principle to be applied is that
bail should only be granted for exceptional and unusual reasons. Neither the complexity of the
case nor the good character of the Applicant or the alleged hardship to his dependants could
justify the grant of bail. When a person has been convicted, the onus is on him to show cause why
the conviction should be quashed and it is upon him to show cause why he should be released on
bail. This decision was later denied force by Muli J in Motichand V R [1972] EA, 399.

In Hasham vs. R it was held that a short custodial period is not in itself a special ground for

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granting an application for bail. However, if the sentence is the maximum provided, this should
be taken into consideration as there is a possibility that the sentence might be served before the
appeal is heard e.g. in Abdullah V. R [1963] EA, 223, the Appellants had already served their
sentences and had been discharged when the appeal was allowed, the conviction quashed and
the sentence set aside.

The question whether the Court of Appeal can grant bail pending appeal in the High Court was
discussed in the case of Michael Otieno Adembe V. R [1983] 1 CAR, 187. The Appellant pleaded
guilty to a charge of personating a civil servant and was sentenced to 12 months’ imprisonment.
He appealed against the sentence in the High Court which declined to grant bail pending appeal.
He appealed to the Court of Appeal against the judge’s refusal to grant bail. The Court of Appeal
held that it had no jurisdiction under the CPC or the rules of the Court of Appeal to entertain an
appeal from a refusal of the High Court to grant bail pending an appeal to that court.

In Islam Ali Abdulla vs. R it was held that an appellate court can only grant bail pending appeal
where it is satisfied that there is a substantial point of law to be argued which could, result in the
conviction being quashed.

8.4 RENEWED BAIL APPLICATION

A renewed /successive application for bail will be heard de novo, only if there has been a change
of circumstances. Only circumstances which have occurred since the last hearing or matters not
brought to the attention of the court on the previous occasion, may be taken into account.

R vs. Nottingham Justices ex parte Davies [1980] All ER, 775.The Applicant, who had been
remanded in custody pending trial on a charge of rape made two successive applications for
remand on bail. Each was refused on the grounds that his case came within the exceptions to the
right to bail in the Bail Act of Britain. When he subsequently applied to a differently constituted
bench for remand on bail, he was asked whether there had been any change(s) in the
circumstances since the previous application. He informed them that there was none but asked
for a full hearing of the case on its merits. It was held that since there had been no change in the
circumstances, there were no grounds on which to re-consider the application. Leave to appeal to
the House of Lords was refused on the grounds that although an accused has a prima facie right
to bail and although the matter must be considered on every application, the earlier or previous
finding refusing bail was a finding to be treated as res judicata or analogous thereto. The court
should therefore start at the point when the matter was last considered and need only investigate

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the matter further if there are new circumstances or evidence of old circumstances not previously
before the court. Mere passage of time is not itself evidence of a change in circumstances.

The effect of the Nottingham principle means that a refusal of bail is indefinite unless something
new turns up. This is bad law because as the passage of time is not in itself a change of
circumstances, it may lead to a change of circumstances e.g. the risk of interfering with witnesses
may diminish as the police complete inquiries and the taking of statements.

In some cases, the renewed or successive application for bail may be hopeless as the reason(s) for
refusing bail in the last application may have been overwhelming. However, the accused whose
liberty is at stake should be entitled to a full and proper hearing as the earlier decision could have
been bad e.g. if the evidence was misunderstood or the reasons for refusing bail were not justified
by evidence or were spurious. Therefore, a lawful bail application should always be treated on its
merits.

8.5 SURETIES
8.5.1 DEFINITION
A pledge by some other person guaranteeing that the accused person shall appear for his trial
and if he does not, then the surety will pay to the court a certain sum which has been fixed by the
court.
In Kenya, the law as to sureties is laid down in Section 123 CPC. In considering the suitability of
sureties, regard may be had to:-
o His financial resources
o His character and previous convictions
o His proximity to the bailed person
o The person giving bail should be interested in looking after and if necessary using
powers he has to prevent the accused from escaping i.e. proximity or relationship with
the accused.

It is the responsibility of the accused and his next of kin to find suitable sureties. They are
examined by the court to assess their suitability. The prosecution is allowed to cross-examine and
cross check any details that the surety supplies to the court such as place of residence,
employment, authenticity of any documents produced e.t.c. The examination of sureties include
whether they have authority to require the accused to attend court and if they understand their
obligation to court.

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R vs. Badger [1843] 7 JP, 128 – It was held that a court may refuse a surety for his political
opinions or otherwise inquire into his private interests or character.

The qualifications that need to be met by one in order to stand as surety were discussed in the
case of R vs. Gabhai Jessa. It was held that a person standing as surety must be a person of social
standing in the community. He must be aged 21 years or above and must be capable of meeting
his financial obligations as a surety.
NB. The age of majority is now 18 years as per the Age of Majority Act, Cap 33.

Section 128 CPC, a surety may, before the end of the case apply to be discharged wholly or in
part from the terms of the bond. A warrant of arrest for the accused may issue and he may be put
on remand until he secures an alternative surety.
Section 129 CPC, where a surety dies before the bond is forfeited, his estate shall be discharged
from liability and the accused may be required to provide an alternative surety.
Section 131 CPC, if the accused fails to honour the terms of his bond, the surety may be called
upon to show cause why he should not pay the penalty under the terms of the bond.
One must have a Kenyan surety so that the likelihood of absconding is minimized.

8.6 BAIL BOND

Section 36 CPC provides that a police officer in charge of a police station, where the accused
cannot be brought before a court within the required time unless the offence appear serious, may
release the person on his executing a bond with or without sureties. Section 23 of the Police Act
emphasizes the same.
The purpose is to ensure that the accused does not serve pre-trial custody or sentence. However,
this applies to those charged with minor offences.
Section 43 CPC – bond can be given for prevention of offences.
Section 44 and 45 CPC – it can be security for good behaviour.
Section 46 CPC – habitual offenders can only be bonded by a magistrate.
Section 47 CPC – when granting bond, the magistrate must state the information received, the
amount of bond granted or to be executed, the period for which it will be in force and the
number, class and characters of sureties, if any that are to be given.

Section 124 CPC provides for bail bond. This is where instead of a party paying a cash amount;
he signs a bond undertaking to pay an amount if he fails to turn up in court.

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Section 125 CPC, in granting bail and before the release of the accused person, a bond for the
amount stated shall be executed by the accused in case of personal recognizance, or by one or
more of the sureties in the case of bail bond. The bond shall state the place and time of
appearance.
Section 126 CPC, the accused may be given an alternative of either a cash bail or a bail bond. For
cash bail, the accused and/or his surety deposits the money in court and if he fails to honour the
terms of the bail, he forfeits the money to the state. If he attends, the money is recoverable at the
end of the case.
The court can cancel the bond and put the accused in custody where;
 The accused fails to observe conditions of the bail or bond.
 The accused fails to appear in court.
 The accused is about to abscond.
 The accused applies for cancellation e.g. if the accused finds himself in custody on a
different matter.

8.7 PROCESS OF BAIL/ BOND

1. section 123 of the CPC The above sections prescribe the accused person‘s right to bail unless
charged with a capital offence (murder, treason, robbery with violence or attempted robbery
with violence).The accused person may directly or through his advocate apply for bail/
bond at any stage of the proceedings.
2. The court will consider the application for bail and taking into account the circumstances of
the case, may or may not grant bail or grant conditional bail.
3. The Constitution requires bail be reasonable and the CPC states that bond be set with
due regard to the circumstances of the case and not be excessive. Excessive bail amounts to
denial of bail.
4. Bond/ bail applications are also made to vary the bond/bail terms in light of new
developments or circumstances. These may entail;
• The social-economic status of the accused person
• The accused person’s deterioration in health
• The change, amendment or substitution of charges
• Any other relevant issue arising.

5. The court gives bail as a matter of course as it is a constitutional right unless any objections
are raised. When the prosecution opposes bond/bail there must be cogent reasons and facts

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 to show reasonable cause for belief that the accused person is a flight risk or may interfere
with the course of justice.
6. The court has power to impose conditions to ensure the accused person does not abscond by
providing surety, deposit of passport and /or reporting to the police station consecutively in
addition to the bail/ bond terms.

7. Section 123 (3) gives the High Court power to grant, vary or reduce bail imposed by courts.
8. Where the court considers denial of bail/bond, it will look into the following issues;

GROUNDS FOR DENIAL OF BAIL

The primary consideration before grant of bail is whether the accused person will turn up for
trial. If the court is satisfied the accused will abscond, then bail is denied.

Some factors indicate likelihood of the accused person to abscond;

• The accused has been arrested before and tried to abscond
• The gravity of the charge and likely sentence upon conviction
• The capacity and opportunity of the accused to abscond, sanctuary or assets abroad
• The interest and status of accused person
• Whether the accused has a fixed abode and job

Other considerations are;

• Whether the accused will commit offences pending trial
• Whether the accused will interfere with witnesses and evidence
• Whether the accused has previous incidents of absconding.

Where bail/bond is denied, earliest hearing dates are given and the hearing expedited.

9. However, in court proceedings, there are different types of bail and they are granted in
different courts at different stages; namely;
• Plea taking process/ pretrial bail
• Bail pending appeal on plea of guilty
• Renewed bail application
• Bail/bond pending appeal
• Bail /bond to keep the peace
• Anticipatory bail/ bail pending arrest

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8.7.1 PLEA-TAKING
If the accused person pleads not guilty to the charge(s), the court will give a court order that
contains;
• Trial Court
• Bond/ bail terms
• Hearing date
• Mention Date (repeal?)

Court order:
• Cash bail is Kshs. 10,000/= each of the accused persons OR
• Bond is Kshs. 400,000/= with one surety OR
• Kshs, 600,000/= with two Kenyan sureties of 300,000/= each

8.7.2 CONDITIONS OF BAIL

• Reporting to the Police Station, reporting to Particular officer and or give specific details
• Not travelling without Police or Court’s knowledge or permission
• Deposit of passport in court
• Freezing of accounts
• Conservatory order on properties
• Prohibition of access or interaction with witnesses
• Prohibition on tampering of evidence

8.7.3 TRIAL BAIL PROCESS

8.7.3.1 PROCESS
• The court states bond terms, records the order in the court file, the court file which
contains the court order is returned to the court registry after plea-taking or hearing
proceedings.
• The advocate/ relatives of the accused person (s) will avail to court
• Once the court gives bond, The Court Clerk takes the court file which contains the court
order is to the court registry. The advocate/ relatives of the accused person (s) will avail
to court; securities; namely

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8.7.3.2 TYPES OF SECURITIES
• Title-deed with a recent search certificate from the Lands office and a current Valuation
report from a registered valuer. The search will confirm ownership of the land, any
mortgages, charges or encumbrance on the land. The valuation report will show current
value of the land which must be of the surety sum or above. The 2 documents must have
current fees’ receipts from the official departments.

• Logbook of a car; with the Kenya Revenue Authority (KRA) copy of records document
to establish ownership and a current receipt. The vehicle must be physically seen by the
court;
• (Magistrate and/or prosecutor), parked within the court precincts. The details of the car
should correspond to those in the logbook and are recorded in the court file. (details
include; color, make, engine type, chassis number, valid insurance and road
license).There must be an assessment or valuation report from reputable assessors e.g.
“A.A” to show the vehicle is valued at the surety sum or above.
• Share Certificate (CDSC certificates) of shares owned and held by surety and
document from the public company confirming the number of shares, value of shares,
and undertaking not release/sell the shares if accepted by the court as security until
determination of the case. The value must be of the surety sum or more.
• Fixed Deposits of the amount imposed by court or more. The proposed surety will
present an official letter from a bank confirming the amount of deposit, date of
depositing the money and the owner of the account. The bank will undertake in writing
to hold the amount in a fixed deposit until the court issues an order of release of the
money. The amount of money is the sum of money the court gave or more but not less.
• Pay slips of the proposed surety indicating the gross/net amount which must be the
amount imposed by court.
• Co-operative (Sacco) deposits/ shares of the amount the court imposed as bond.

8.7.4 CASHBAIL PAYMENT

Where the court imposes cash-bail alone or as an alternative to bond, the cash is paid to
the Cashier of the court.

The Cashier will issue an official receipt with full names of the payee

Once the trial is determined, the depositor of cash-bail is at liberty to claim refund or
mat apply to the court that the amount is used to pay part of fine or the fine. to be used
as part of paying the fine.

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8.7.5 RELEVANT DOCUMENTS
The advocate/surety will present the security to the clerk in the court registry. He will scrutinize
the same and may make enquiries. He fills in following documents;
• Particulars of surety
• Particulars of Bail / bond
• Release order

Then he/she attaches the security documents and places them in the court file. The details of
the proposed surety and the security are recorded in the prescribed forms. The file is taken to
plea-taking court, trial court or duty court for examination of surety.

Examination of surety
The court will examine the surety on oath to ensure a proper surety. The surety will present
valid Identity card, Passport or driving license. This is a judicial function and examination
proceedings will be recorded, in the court file.

The Court will examine the surety on oath; inform him/her of his obligation as surety and
consequences of not ensuring the accused person attends court. The examination will determine
the following; If the proposed surety is a:
• Person of good character
• Age of majority
• Permanent address/residence
• Fixed abode or
• Meaningfully employed
• Easy and efficient method of contacting and tracing the accused person
• Proposed surety well known to the accused person
• Proposed surety able to meet the financial obligation

During examination, the surety is informed of the consequences of default; the surety stands to
suffer grave consequences if the accused person disappears or absconds before determination of
the trial, the surety will pay the amount or forfeit the security pledged.The surety is obligated to
ensure that the accused person will attend court until the end of the matter. If for any reason, the
accused person cannot appear in court, the surety should alert the court on the whereabouts or
condition of the accused person.

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A surety may ask the court to discharge him/her at any time during the proceedings. The court
upon discharge of the surety, will suspend the bond terms until the accused person avails
another suitable surety.

8.8 CONSEQUENCES/ FORFEITURE

Sections 130 and 131 CPC provides for the procedure when an accused absconds. A warrant of
arrest is issued against the accused and summons given to the surety. If the accused comes to
court, he should give reasons why forfeiture should not take place. If the court is persuaded by
the reason(s) given, the warrant may be lifted.
If the accused person, in breach of bail/bond terms, fails to attend court as required, the court
will issue warrant of arrest to the accused person and summons for the surety to appear in court
and explain the whereabouts of the accused person.If on bail, the amount deposited in court is
forfeited to the State and a warrant of arrest is issued to the accused person.

If on bond, the accused person and/or surety will be arrested and summoned to court to show
cause why the security shouldnot be forfeited.In Mulwa vs. Republic, 1985 KLR329 the High
Court held that the undertaking by a surety to secure the presence of the accused person in court
is absolute and the liability to forfeiture or default is unqualified.

Section 131(1) of Criminal Procedure Code in line with Nsubuga v Uganda,1968 EA 10,held that
before forfeiture is effected, evidence on oath ought to be taken and not the mere statement by
the prosecutor. The court will also consider what the accused person and surety have to say and
then make an informed ruling.Where cause is not shown or payment made, the court may issue
warrant of attachment and sale of land of the surety under section 131(2) CPC.If the penalty is
unpaid and cannot be recovered by attachment, the court may order the surety to serve 6
months imprisonment as provided by section 131(4) CPC. The orders of the court under this
section are subject to appeal to the High Court as prescribed in section132 CPC.

8.9 PROCESS OF BAIL& BOND

8.9.1 HIGH COURT
Application for bail or bond in the High Court is by
• Notice of Motion
• Miscellaneous Criminal application or

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 • Revision of Magistrates’ court orders

8.9.2 MAGISTRATES’ COURTS

• Oral application
• Formal application on capital offences

8.9.3 ISSUES ON BAIL

COMPELLING REASONS-
• compel-force to do, make necessary, makes one pat attention to
REASONABLE GROUNDS
• Reason- explanation, grounds, basis, excuse, motive, justification
NATIONAL SECURITY- defense of a country
• Security- activities involved in protecting a country , building or person against attack
or danger
PUBLIC POLICY- a plan of action agreed or chosen by government, political party, business

8.9.4 CASELAW ON BAIL

Abubakar Sharif Ahmed Abubakar vs. Republic CR 793 of 2010
Offence: engaging in an organized criminal activity c/s 3(3)& 4(1) of Prevention of Organized
Crimes Act, 2010
Issue: bail pending trial

Grounds:
• Presumed innocent till proved guilty
• Statement of offence & Particulars of offence are subject to proof during trial
• BAIL bond available even in capital offences
• The Replying affidavit by officer from Anti—Terrorism Police Unit ( ATPU) did not
disclose compelling reasons to deny bail.
• The allegation is that there was a suicide bomber, a notebook was recovered that had the
1st applicant’s phone number.
• The other allegation was that the accused persons were members of Al-Shabab,
encouraging youth to train as jihadists in Somalia.
• They travelled to and from Somalia November 2009 – May 2010
• The accused persons would abscond , interfere with witnesses and security of the state
at risk

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Court Held:
• Art 19 (3) a
• Art 49 (1) (h)
• Art 50 (2) (a)
• Premature for the court to determine guilt or innocence till the trial
• Issue of Compelling reason
• The accused persons liable to fine of 5m or 15 years or both
• Judicial notice of Al Shabab as proscribed group
• 20th Dec 2010 explosion on Kampala Coach
• The prosecution to establish nexus with 2 incidents and the accused persons
• Prosecution to elaborate magnitude and compromise of national security by release of
accused persons
• The accused persons released on bail bond and conditions
• Sign bond of 3m
• provide 2 sureties of 3m each
• report to OCS every Tuesday
• Inform OCS of intention to travel outside jurisdiction of police station
• Apply to High Court if one intends to travel out of the country

Ali Mcheni Alias Shee Lako vs. Republic

MISC APP & Of 2011
Offence: disguising proceeds of drug trafficking C/S 49 (1)(a)(6) of Narcotic Drugs &
Psychotropic Substances (Control) Act (6 counts)
• Affidavit sworn to explain reason for custody
• Prosecution sought 7 days in custody to complete investigations, they involve real
property; verifying documents takes time.
• Defense do not oppose application but the accused person released on bond, will not
abscond or interfere and gave personal details
• Issues: Compelling reason(s)
• Refer: Supreme Court of Nigeria
• Alhaji Mujahid Dukubo Asari vs. Federal Republic Of Nigeria S.C 20a/2006
• A reliable framework includes but not exclusive list;
• Nature of the charge
• Strength of evidence in support of charge

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 • Gravity of punishment
• Previous record of accused person
• probability the accused may not appear in court
• Likelihood of accused interfering with witnesses or evidence
• Likelihood of further charges being preferred
• Probability of finding of guilt
• Detention protection of the accused person
• necessity to procure a medical or social report, pending disposal of the case
• Court said [ all these factors]They all coalesce into the most crucial factor
• Whether the accused person(s) will come before court on the scheduled trial date.
• The burden shifts to the state to urge compelling reasons for the court limiting the
right claimed
• The court sought a probation report on applicant’s working station, residential
neighborhood and the police station.
• No compelling reasons made,
• Court held :
• KSH 200,000/- paid into cash office
• Alternative personal bond Kshs 500,000
• Prohibition of any dealings with the properties specified in the 6 counts
• Prominent registration of prohibition to all properties
• Deposit passport with the court

Cr Case 26 of 2008
Republic vs. Danson Mgunya & Kassim Sheebwana Mohammed
Offence: murder c/s 203 & 204 of the Penal Code
• The accused persons were not eligible for bail , new Constitution came in all offences
bailable ,except for compelling reasons
Issue: Bail or bond
• Accused persons, Administration police officer and Chief respectively
• The accused persons contacts established
• The accused persons senior citizens
• Unless there are statements to show the accused was caught red-handed or there is a
lawfully admitted confession; the accused person is presumed innocent until proved
guilty.
Court held: Bond granted Ksh. 3,000,000/=

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Criminal Revision 51of 2009
Republic vs. Muneer Harron Ismael
Offences:
• Several count of being in possession of government stores
• (assorted weapons, ammunition and official uniforms)
• Cr Case 2217/2009 1st-3rd accused persons
• Cr Case 2242 of 2009 4th – 5th accused persons
• In magistrates’ court 2 bail applications denied
• 3rd bail application bail granted as prosecution had ample time to complete
investigations
• Prosecution objected, moved to High Court same day for revision of orders. Court file
placed in court and oral
• Application made exparte
• High court reversed the orders and the accused persons were remanded for further 14
days
• After 14 days, the defense appeared in court to reinstate suspended bond terms
• Magistrate court asked parties to go to High Court for interpretation
• Issue: was the high court order a revision or reversal?
• Some accused persons filed misc application with notice of motion, others wrote to
Deputy registrar
• All files consolidated to present file
• Seriousness and gravity of offence
• threat to national security
• Court held;
• Reasonable grounds not reasonable suspicion
• No formula to gauge threat to state security
• justice is our shield and defender
• Bond terms granted and varied
• Ions imposed
• Cases where bail denied
• Republic Vs Kitende Munyao 65 of 2010
• Republic Vs Joseph Wambua Mutunga 2 of 2008
• Republic Vs Ahmed Omar & 6 Others 14 of 2010

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8.9.5 EMERGING ISSUES
• ART.49 & 50 interpreted in line with international instruments and best practice
• Kenyan Courts embrace case-law from the region in enforcing human rights, Uganda,
Malawi, Nigeria
• Granting bail is the rule rather than the exception
• One is presumed innocent until proved guilty
• The accused is to apply for bail in any offence
• The burden of proof shifts on the State/Prosecution to demonstrate compelling reasons
why bond bail should not be granted
• Although there are various factors to be taken into account in considering bail /bond ,
the main factor is whether the accused person will jump bail or attend court till the end
of trial.
• Definition of what amounts to the following is wanting;
• Reasonable conditions
• Compelling reasons
• National security public good, public security and public safety

CONCLUSION
1. Each case bail /bond is decided based on;
• Facts
• Circumstances of the case
• Law
• Public policy
2. Await emerging jurisprudence from Supreme Court
3. Propose bill on bail and bond and include
• Guidelines and/or objective criteria to determine bond and bail applications in
implementing the constitution.

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 CHAPTER NINE
THE TRIAL PROCESS AND MATTERS ARISING
9.1 TRIAL
In law, a trial is when parties to a dispute come together to present information (in the form of
evidence) in a tribunal, a formal setting with the authority to adjudicate claims or disputes. The
Court trial is the convergence of processes that include;
• Formal Complaint
• Investigations
• Compilation and presentation of evidence
• Dispute resolution

9.2 COMMENCEMENT OF THE TRIAL PROCESS

The accused must be present, in Akhuya vs. R 121 CA held that written submissions inadmissible
as it amounted to trial in accused’s absence. In 2009 practice directions by CJ have overridden this
decision. With regards to the complainant, if on date of trial accused appears but complainant
fails to show up, court may acquit accused 122s. in R vs. Mwaura Ikego (1979) complainant
includes prosecutor.
The trial procedure is conducted in the following stages;
1. Plea-taking proceedings: S 207 & 208 Criminal Procedure Code
2. Hearing: Trial in Magistrates’ courts: Prosecution, Defense, Judgment, Pre-sentence
proceedings, S 202 -218 Criminal Procedure Code
3. Hearing: Trial in High Court: State’s Case, Defense, Judgment, Pre-sentence proceedings
S 274- 329 Criminal Procedure Code.

9.2.1 PLEA TAKING PROCESS

The plea is the commencement of the trial process in criminal proceedings

9.2.1.1 TAKING THE PLEA

The Plea taking process contains 4 elements;
• Appearance or arraignment in court by the suspect(s)
• Formal statement (Charge sheet)
• The substance of the charges read to the accused persons
• Response of the charges by the accused persons are made

121 (2002)2 EA 323

122 Section 202 of the CPC

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9.2.1.2 PROCEDURE
1. The substance of the charge(s) shall be read to the accused person, by the court clerk,
he shall be asked whether he admits or denies the truth of the charge.
2. The plea is read in a language the accused person understands. Magistrates’ courts
use English or Kiswahili languages. If the accused person cannot understand either of
the 2 languages, an interpreter is availed by the court.
3. If the accused person admits the charge(s) the admission shall be recorded by the
court as nearly as possible in the words used by him.
4. The plea-taking court will enter plea of not guilty if the accused person is not sick but
remains silent.
5. The prosecution will outline the facts surrounding the offence to the court.
6. The accused person is given an opportunity to admit, dispute, explain or add any
facts. If the accused person denies the facts, a plea of not guilty is entered on the court
record.
7. If the accused person does not admit the charge, a plea of not guilty shall be entered in
the Court record.
8. A mention and hearing date, bond or bail terms and the trial court to hear the matter
are given by the plea-taking court.
9. If the accused person admits the facts that gave rise to the charge then the court will
convict the accused person on the charges admitted.
10. On the basis of the plea, the prosecution will inform the court of the accused person’s
record. The prosecutor informs the court if the accused person is a first offender or if
he has been convicted before.
11. The accused person will mitigate; inform the court the circumstances of the case, his
background and any other issue the court should consider before sentencing.
12. Then the court will pass sentence.

9.3 INTERLOCUTORY MATTERS

During the plea-taking process, the parties to the proceedings address the court on various
matters seeking court orders or direction. The issues are raised by the prosecution, defense or the
accused person(s).
They include;

1. Preliminary objection.
A preliminary objection is an issue of law that affects the whole hearing of the case. It is an issue

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that goes to the root of the case; whether there is a proper case before the court. The P.O. is raised
by the defense lawyer. (Sometimes the court can raise the objection on its own motion) Examples
are;
• Jurisdiction of the court,
• Age of the accused,
• Fitness to plead,
• Health of the accused person, and
• Unlawful/ irregular pretrial processes that render the proceedings a nullity
2. Applications
They are verbal requests made by either the Prosecutor, defense lawyer or the accused person to
the court seeking orders from the court on peculiar, recent or urgent circumstances arising from
the case. Examples are;
• Grant or variation of bond or bail terms
• Accused persons’ remand arrangements
• Change or priority of hearing dates
• Change of forum for hearing the case
• Court’s viewing of exhibits
• Media coverage of a case
3. Objections
When a party to the proceedings makes an application to the court seeking certain orders, the
adverse party may find the request prejudicial to their case, especially where the law or
circumstances do not warrant the granting of the said order, the adverse party will object and the
court will make a decision. Examples are;
• Hearing dates
• Remand
• Media coverage of a case
• Bail and Bond

9.4 ESSENTIALS OF A FAIR TRIAL

Introduction:
• The activities and processes involved in a trial culminate in the administration of justice.
• These activities and processes both in the pre-trial and trial processes constitute essentials of a
fair trial.
• The test of a fair trial is not by establishment of truth or success as seen by victim from
conviction of the suspect, or by suspect due to an acquittal; but by ensuring that the pre-trial and

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trial stages are conducted in compliance with the law irrespective of the outcome.

9.4.1 INTERNATIONAL LAW ON RIGHTS

• The International Bill of Rights prescribes the inherent and unalienable rights of any human
being.
• These are human rights. Human rights are enshrined in the Universal Declaration of Human
Rights of 1948 under the United Nations Charter
• A detailed outline is found in the International Convention of Civil and Political Rights and
International Convention on Social, Economic and Cultural Rights of 1966

Under Article 50 of the Constitution of Kenya 2010, the accused person is entitled to (see Patrick
Kiage’s Essential of Criminal procedure in Kenya)
• Fair trial within reasonable time by
• An independent and impartial court
• The person is presumed innocent till proved guilty
• The person to be informed of the charge(s) in language he understands
• The person is given adequate time, facilities to prepare for defense

George Ngodhe Juma & 2 Others versus Attorney General Misc Application 345/01
It was a constitutional reference to the High Court questioning the right to access to information
where a person facing criminal charges before the trial requests for pre-trial disclosure of
prosecution witness statements. Court held that S 77 of the Constitution dictates one being given
adequate time and facilities for preparation of defense.

Witnesses’/Victims rights in trial

Right to protection of the law
• (Witness Protection Act, 2007)
• This involves protection of the witnesses & victims operation by the Witness

Protection Unit in the A.G.’s office to deal with;

• Protection of witness,
• escort of witnesses to court,
• assessment of threat level,
• Co-ordination with other security agencies

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The Unit consists of 3 departments
• Security and movement section
• Witness Coordination/ Liaision
• The Support Services

• Right to participation; the witnesses are entitled to;

• interview by investigator,
• preconference with prosecutor,
• testifying in court,
• receiving information on status of the case
• Right to justice, The determination of the case should vindicate the violation of the victim’s
rights
• Right to reparation; the decision of the court should take into account any loss, injury or
damage occasioned to the victim’s person or property through the commission of the crime.
• These rights are not absolute but subject to rights of other persons.

9.5 HEARING PROCESS; TRIAL COURT

1. The case is called out, the accused person (s) names and case number by the court clerk.
2. The court prosecutor informs the court, the number of witnesses for the case.
3. Defense counsels introduce themselves and their names placed on court record.
4. The witnesses will remain outside the court and go in the court as each of them testifies.
5. Every witness will give evidence on oath or affirmation

9.5.1 SEQUENCE OF CALLING WITNESSES

• Complainant and his witnesses are heard first
• Its advisable to request defence and prosecution witnesses who are yet to testify to stay
out of court whilst witness is testifying
• Court cannot reject evidence of witness because he sat in court when others were
testifying
• Evidence of such witness should be taken
• Fact of his presence only goes to weight to be attached to such evidence123

123 Waithaka vs. R (1972)EA 184

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9.5.2 OATHS
• Every witness has to give evidence upon oath or affirmation according to section 151 of
the Criminal procedure Code and sections 15 and 17 of the Oaths and Statutory
Declarations Act124
• Witness to be sworn on a holy book
• Oath takes following format
‘I…………………………….…do swear that the evidence I shall give in this court, touching the
matter in issue shall be the truth, the whole truth and nothing but the truth. So help me god’
• Fact that person taking oath had at the time of oathing no religious belief shall not affect
validity of the oath.

9.5.3 AFFIRMATIONS
• Witness may decline to be sworn for lack of religious belief/taking oath is contrary to his
religious belief
• Witness to be allowed to make a solemn affirmation instead of taking an oath
• The legal effect of the affirmation is the same as an oath pursuant to section 15 of the
Oaths and Statutory Declarations Act125
• Words of imprecation or calling to witness are avoided
• An affirmation takes the following format
“I…………….…do solemnly, sincerely and truly declare and affirm that the evidence I shall give in
this court, touching the matters in question, shall be the truth, the whole truth and nothing but the
truth.”

9.5.4 RECORDING EVIDENCE

• Each witness’s evidence to be taken down in writing or on a typewriter in the language
of the court
• To be taken in the presence of the magistrate under his personal direction and
supervision or by the magistrate
• Magistrate has to sign recorded evidence for it to form part of the record
• Evidence is to be recorded in narrative form though the magistrate may record any
particular evidence and the answer thereto s.197(1)(b)

124 Cap 15 Laws of Kenya

125 Cap 15 Laws of Kenya

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 • Court may also record remarks it deems material regarding the demeanour of the
witness under examination
• In Byamungu vs. R (1951)18 EACA 233 and Musau vs. R(1980) KLR 54 was held that an
impression as to demeanour of witness
• ought not to be made without testing it against the whole evidence in question
• a witness has a right to have recorded evidence read to him if he requests
• if evidence is tendered in language the accused does not understand, it will be
interpreted to a language that he understands
• if evidence is in language other than English and accused’s advocate does not
understand that language, it shall be interpreted to the advocate in English

9.5.6 EXAMINATION- IN -CHIEF (DIRECT EXAMINATION)

The prosecution will call the complainant and his witnesses heard first. The purpose of the
examination is to obtain testimony in support of the version of facts in issue or relevant to the
issue for which party calling the witness contends.
Check the Constitution on nolle prosecu

9.5.7 CROSS EXAMINATION

The witness will be cross-examined by the accused person or if represented by defense counsel.
The purpose of cross-examination is to elicit information concerning facts in issue or relevant to
the issue and is favorable to the party on whose behalf the cross –examination is conducted, to
cast doubt upon the accuracy of the evidence in chief given against such party.

9.5.8 RE-EXAMINATION
The court prosecutor may ask the witness questions after cross-examination. This is in re-
examination; the questions are confined only to matters that arose in cross-examination. New
matters can only be introduced with leave of the court.

9.5.9 CLOSE OF THE PROSECUTION CASE

After, the prosecution witnesses have testified, the prosecution will close the case.

9.6 SUBMISSIONS (CLOSING ARGUMENTS)

The legal standard of proof in criminal cases is that the burden of proof is on the prosecution to
prove the case beyond reasonable doubt. The prosecutor and defense counsel will make
submissions ( Closing Statements) to the court on whether a prima facie case is established by the

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prosecution or not.

9.7 RULING
The court will consider the arguments and submissions and find out if the prosecution has made
out a prima facie case against the accused to require that the accused be put on his defense. If
such a case is made out, the court will deliver a ruling that the matter will proceed to defense
hearing. If the prima facie case is not made out, the court will in its ruling, dismiss the case and
discharge the accused person under section 210 of the Criminal Procedure Code (CPC). The
determination will be in writing and reasons will be given for the dismissal and discharge.

9.8 DEFENSE HEARING

During the defense hearing, the accused person will exercise the options of giving evidence as
prescribed in section 211 CPC. The accused person will inform the court the witnesses to be
called to testify on his behalf. The witnesses are called and they testify; the procedure is the same
as that of prosecution witnesses.

9.8.1 FINAL SUBMISSIONS

The defense counsel will make final submissions to the court. If the accused person gives a sworn
statement and/or the witnesses testify on oath, and they are cross-examined, the prosecution will
make final submissions. The proceedings close and parties await the judgment of the court.

9.9 PRE-SENTENCE PROCEEDINGS

9.9.1 JUDGMENT
After, the close of proceedings, the court gives a judgment date or judgment on notice. On the
scheduled date, the judgment is read out by the magistrate to the accused person and in public in
a language he/she understands. The court pronounces the conviction or acquittal under section
215 Criminal Procedure Code. The judgment announcing a court’s decision can include at least
up to 9 ingredients;
• The title; Republic versus the accused person(s) names and paginations
• The charge(s) as written on the charge-sheet
• A description of procedural events ( optional) what lawyers and the court did before
the
• decision was made; plea-taking, applications, objections, oral hearing, production of
exhibits, submissions

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 • A narrative of pleaded or evidentiary events ( what witnesses saw and the parties
did before the suit or proceedings)
• A statement of issue/ issues to be decided by the court
• A summary of arguments made by each side
• The court’s holding on each issue( the court will further state the holding of each
issue)
• The rule or rules of law the court enforces through each holding
• The court’s reasoning( the rationale for the court’s decision) Ratio decidendi
• Obiter dicta; comments, observations of the proceedings , witnesses’ demeanour
• A statement of the decision ( In criminal proceedings it is a conviction or acquittal)
• The decision of the court will be based on a finding of each count or charge in the
charge sheet and not in global or lump-sum decision for all charges.
The court may;
• acquit the accused person on some counts and convict on some of them,
• Acquit on the charges in the charge-sheet and
• convict on a lesser charge not in the charge sheet but proved by evidence in court
• Acquit on all counts, the accused person is confirmed innocent and set free or found
guilty on all counts.

9.9.2 ACCUSED PERSON’S RECORD

If the court convicts the accused person, the prosecution will read out the accused person’s
previous record. The record includes previous convictions; the nature, date, sentence imposed
and the date of release from prison. The accused person will comment by accepting or refusing.
The accused person must know what is alleged against him and has the opportunity to deny it. If
he refuses, then evidence is called to confirm the same. Fingerprints are taken afresh for
examination with stored criminal cases data at the CID headquarters.

9.9.3 MITIGATION AND VICTIM IMPACT STATEMENTS

• The accused person will mitigate; inform the court any/all issues the court should take into
account during sentencing.
• The purpose of mitigation is to enable the accused person show the court why it ought to
impose one form of sentence instead of another.
• The court ought to establish the history, character, antecedents, circumstances of the offence
and all matters relevant before considering the most appropriate sentence to punishment
before assessing sentence.

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• Victim Impact Statements (section 329 (c) CPC) are to enable the court to receive, upon
convicting the offender and before sentencing, information on the impact of the offence on
the victim and his/her family, where the offence results in death or actual physical bodily
harm.
• It is not mandatory, the court receives it where appropriate
• The statement maybe from primary victim or family victim

9.9.4 SENTENCE
The court will consider the facts from the pre-sentence proceedings vis-à-vis the types of
punishment in section 24 of the Penal Code and the principles of sentencing; then write and read
the sentence meted out to the accused person. The sentence is to be served either concurrently or
consecutively.

9.9.4.1 TYPES OF SENTENCES

S. 24 of the Penal Code and other laws set out the various forms of punishments that may be
imposed by Courts in Kenya. These are:-
1. Death
2. Imprisonment
3. Suspended sentences
4. Fine
5. Forfeiture
6. Payment of compensation
7. Security to keep peace and be of good behavior
8. Absolute and conditional discharges
9. Probation
10. Community service orders

9.9.5 RIGHT OF APPEAL

The convict is entitled in law to contest the decision of the trial court in the High Court. The right
of appeal within 14 days is explained to the accused person immediately after sentence.

9.9.6 CRIME AND PUNISHMENT

• Punishment consists of censure and sanction;
• Censure is expression of disapproval and public’s view of wrongfulness of the offence
• Sanction is the infliction of unpleasant consequences.

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Aims of punishment are;
• Retribution; punishment proportional to the moral guilt
• Deterrence; punish to serve as example to others
• Rehabilitation; offender‘s chance of reform
• Restorative justice; making good the harm done
• Types of punishment are prescribed in section 24 of the Penal Code.

9.9.7 TRANSFER OF CASES

Transfer of cases deals with the shifting of a case from one court to another or from one
magistrate to another. The main reason for the provisions on the transfer of cases in the Criminal
Procedure Code (Cap. 75, Laws of Kenya) (the “CPC”) 126 from one court to another are aimed at
securing public confidence in the independence and integrity of the court and meeting the ends
of justice127.
Transfer of a case from one magistrate to another or from court to another is thus predicated
upon dispelling fears that justice will not be done or will not be seen to have been done if the trial
was allowed to proceed before a particular magistrate or court. The onus is on the accused or the
applicant to show that certain circumstances exists that make him apprehend that justice will not
be done in his favour or that he will be prejudiced if the proceedings were allowed to proceed
before a particular magistrate or court.

The duty on the court is to determine whether there is a reasonable apprehension which is
founded on reasonable circumstances/ incidents which warrant such a transfer or just mere
unfounded allegations. The court is duty bound to weigh such application and grant orders for
transfer of such a case if it is on the opinion that certain circumstances exist which create a
“reasonable apprehension in the applicant’s or any right thinking person’s mind that a fair and impartial
trial might not be had before the magistrate”128.
The High Court is empowered to order for a transfer of a case from one court to another; or from
one magistrate to another; or from courts subordinate to it to itself if it deems that circumstances

126 Transfer of cases is provided for under sections 78 to 81 of the CPC

127 Some scholars have argued that transfer of cases is not aimed at imposing checks and balance on the presiding officers of the court, as
this would in effect impute lack of fairness on the part of the bench (see Criminal Procedure by P.L.O Lumumba on transfer of cases at
page 80)
128 Trevelyan J, John Brown Shilenje v. R, Crim. Appl. No. 180 of 1980

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exist that warrant for such transfer129. It should be noted that subordinate courts are also
empowered to transfer cases.

TRANSFER OF CASES BY SUBORDINATE COURTS

Transfer of a Case where the offence is committed outside jurisdiction
This occurs where upon hearing a complaint it occurs that the cause of the complaint arose
outside the limits of the jurisdiction of the court before which it is brought. The court if satisfied
that it has no jurisdiction may direct that the case be transferred to the court having jurisdiction
(where the cause of the complaint arose)130.
The CPC131 provides;
“if upon hearing of a complaint hearing of a complaint it appears that the cause of complaint arose
outside the limits of the jurisdiction of the court before which the complaint has been brought, the
court may, on being satisfied that it has no jurisdiction, direct the case to be transferred to the
court having jurisdiction where the cause of complaint arose”

Some considerations to be made when transferring a case where the offence is committed
outside jurisdiction
Before the trial court makes orders for the transfer of a case on jurisdictional grounds, it is
pertinent and incumbent upon it to examine whether the accused/ applicant is already in
custody or not and whether any evidence has been brought before such court and how to deal
with it. In this regard, the court may, if it thinks fit, direct that:
(1) if the accused person is already in custody to continue with the custody. This will
only occur if the court directing the transfer is of the view that the custody be continued;
or
(2) If the accused person is not in custody, be paced in custody132.

The court is required to direct that the accused person be taken by a police officer before the court
having jurisdiction where the cause of action arose. In so doing, the court shall give a warrant to a
police officer together with the complaint and recognizances (if any) to be taken to that other
court where the accused person is to be taken. Such complaint or recognizances (if any) shall be

129 Grounds that give rise to such transfer include: where the trial court has no jurisdiction; where it appears that an impartial and fair trail

cannot be had in that court; where some questions of law of unusual difficulty is likely to arise; for convenience of the parties; and for
expedience of justice. This grounds are provided for in section 81 of the CPC and are discussed in detail later in this paper
130 see section 78 (1) of the CPC
131 Ibid
132 see section 78 (2) of the CPC

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deemed to be taken by the latter court133.
The court is has a duty to inform the accused person of the transfer134 and to ascertain itself
whether the court to which the case is being transferred to has the jurisdiction to try the
offence135.

TRANSFER OF CASES BETWEEN MAGISTRATES

This is sometimes referred to as the inter-magistrate transfer of cases. It may occur between a
magistrate holding a subordinate court of the first class and any other magistrate holding a
subordinate court within the first class subordinate court’s jurisdiction. Such a magistrate,
holding a subordinate court of the first class, may transfer a case (which he has taken cognizance)
to any magistrate holding a subordinate court empowered to try that case within the local limits
of the first class subordinate court’s jurisdiction136.
A magistrate holding a subordinate court of the first class may also direct or empower a
magistrate holding a subordinate court of the second class (who has taken cognizance of a case
and whether evidence has been taken in that case) to transfer the case for trial to himself or to
another specified magistrate within the local limits of his jurisdiction competent to try the
accused137.

TRANSFER OF PARTLY-HEARD CASES

This occurs where in the course of the trial before a magistrate the evidence adduced appears to
warrant a presumption that the case should be tried by some other magistrate. Such a magistrate
shall stay the proceedings and submit the case with a brief report to a magistrate holding a
subordinate court of the first class who is empowered to transfer a case, to direct the transfer of
the case by invoking the provisions of section 79 of the CPC138.
A magistrate may disqualify himself either because he knows the complainant or the accused or
has for some reason found himself in a compromising position in relation to the case. In R v.
Patrick M. Mtambo & 3 three others139, the would-be trial magistrate disqualified himself
because one of the accused was his friend.

POWER OF THE HIGH COURT TO TRANSFER A CASE (CHANGE VENUE)

133 Ibid
134 see section 78 (3) of the CPC
135 In Chagan Raja v. Gordon Gopal (1936) Vol. VII, part 1, 69, the court discharged the accused person on the premise that the court did not

have jurisdiction to try the offence.

136 Section 79 (a) of the CPC
137 Section 79 (b) of the CPC
138 Section 80 of the CPC
139 Criminal Case No. 184 of 1987, Principal Magistrate’s Court, Kisumu (unreported)

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The High Court has power to order140:
(a) that an offence be tried by courts other than the ones mentioned above, for instance,
Kadhi courts, Childrens’ court and Court Martial, competent to try the offence;
(b) that a particular case or class of cases be transferred from a criminal court subordinate to
the High Court to other court of equal or superior jurisdiction; or
(c) that the accused person be tried at the High Court itself.

GROUNDS FOR TRANSFER OF CASES

Before the High Court can order for a transfer of a case from one magistrate court to another or to
itself, there must be in existence good reasons warranting the same.141 Prior to the High Court
issuing the order for the transfer of a case, it is required to consider the following factors:
(a) if a fair and impartial trial cannot be had in any criminal court subordinate thereto; or
(b) if a question of law of unusual difficulty is likely to arise; or
(c) if the proximity (view of the place in or near (the locus quo)) to where an offence was
committed is necessary; or
(d) general convenience of the parties; or
(e) expedience of justice or is requirement under any other provision of the CPC.

140Section 81 (1) of the CPC

141Momanyi Bwonwong’a, Procedures in Criminal Law in Kenya, at page 204, has argued that ordering a transfer on insufficient grounds would
encourage distrust in the integrity and independence of the courts. Refusal to order for a transfer of case where good reasons exist would
on the other hand create suspicion and erode confidence in the administration of justice. The High Court thus ought to strike a balance
between this two conflicting interests.

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 CHAPTER TEN
THE HIGH COURT

a) HIGH COURT CRIMINAL JURISDICTION

i. Unlimited original jurisdiction
The High Court has, inter alia, unlimited original jurisdiction in criminal matters [Art.165 (3) (a)
of The Constitution of Kenya, 2010].
The Constitution does not define either the term ‘jurisdiction’ or the expression ‘unlimited
jurisdiction’. A definition would do no harm. In this connection it may, with some benefit, be
noted that in Supreme Court of Uganda Constitutional Appeal No.1 of 2002, Paul K. Semogerere
& 2 Others vs. Attorney General, Judge Oder cited Mula on the Code of Civil Procedure as
having defined jurisdiction (page 225) 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’s case the High Court is established/constituted by the Constitution [Art. 165(1)] and
vested with unlimited jurisdiction as aforesaid.
NB: The provision of Article 165(3)(a) is, however, subject to sub-Article (5) of the same Article
which 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.

ii. 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 [S. 70 of the Criminal Procedure Code
(CPC)].
The law also empowers the High Court to inquire into and try any offence subject to its

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jurisdiction at any place where it has power to hold sittings [S. 69 CPC].

iii. 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 [S. 71 CPC].
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
• 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 [S. 74 CPC].

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 [S. 76 CPC].

iv. 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 had 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-

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 • 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 [S. 81(1) CPC].

v. Transfer by the High Court of case from one magistrate to another upon request by an
interested party
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 [S.81(l)CPC]. In such case, the interested party may apply by motion for the desired
transfer [S.81(3)CPC]. Section 81(3) CPC mandatorily requires the application for transfer to be
supported by affidavit, ‘except when the applicant is the Attorney-General’*.
NB:* The reference to the A-G was based on the old Constitution. In view of the fact that the
2010 Constitution has stripped the A-G of overall control over criminal proceedings, the reference
to the A-G must now be replaced with a reference to the Director of Public Prosecutions/ DPP
[Art.157(6)].
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 [1968] E.A. 656 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 [1979] KLR 134.

See also Shilenje vs. the Republic [1980] KLR 132.

b) 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 [S. 89(4) CPC] while the latter term is used in the High Court [S. 274 CPC].
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

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may be necessary for giving reasonable information as to the nature of the offence charged [S. 134
CPC].

ii. Arraignment and Plea

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 [Oxford Dictionary of Law].
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 [S. 274 CPC].
The accused person may plead not guilty, guilty, or guilty subject to a plea agreement [S. 281(1)
CPC]. Where an accused pleads guilty subject to a plea agreement, the provisions relating to plea
agreements shall apply accordingly [S. 281(2) CPC].

NB:
1. For plea agreements, Ref. Ss. 137A – 137O, CPC
2. It is open to an accused who has pleaded guilty to change his/her plea as long as the
change is before the court passes sentence or makes an order finally disposing of the case:
see Kamundi –vs- R [1973] E.A. 540

If the accused person pleads not guilty, he/she is deemed to have put himself/herself upon the
country for trial [S. 278 CPC] and the court proceeds to try the accused either straightaway or
subsequently.
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
[S. 279(1) CPC].
If either of those pleas are pleaded and denied, the court shall try whether the plea is true or not

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[S. 279(2) CPC]. If the court finds the said pleas not proved or to be false, the accused shall be
required to plead to the Information [S. 279(3) CPC].
It is also open to the accused person to refuse to plead to Information (standing mute). If the
accused stands mute of malice or, neither will nor by reason of infirmity, can answer directly to
the Information-
• 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 [S. 280 CPC].
NB:
• For further details regarding the procedure in dealing with cases of lunacy/insanity or
other incapacity of an accused person, see Sections 162-167 CPC. Note should also be made of
presumption of sanity and as to when insanity may negate criminal responsibility [Sections
11 & 12 of the Penal Code (PC), Cap. 63].
• Attention is also drawn to the usual practice in Kenya that evidence of the state of mind of
the accused should be called by the defence; and that legal insanity should be proved by the
evidence given at the trial: See Mwangi vs. Republic [1982] KLR 120.

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 [S. 300 CPC].

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NB: With regard to opening address, it should be noted that there is some restriction as to its
contents – see holding 4 in Ruhi vs. Republic [1985] KLR 373.

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 [S. 302
CPC].

NB: As to types of examination of witnesses, i.e. examination in-chief, cross-examination and re-
examination, see Section 145 of The Evidence Act, Cap.80.

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.
It was stated by the then Court of Appeal for Eastern Africa in Ramanlal Trambaklal Bhatt vs. R
[1957] E.A. 322 that:
‘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. Wachira [1975] E.A. 262 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.’
NB: Wachira’s case also held that a finding of no case to answer is a finding of law from which an
appeal lies.
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 [S. 306(1) CPC].
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);

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 • 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 [S. 306(2) CPC].
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 [S. 306(3)
CPC].

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 [S. 307 CPC].

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 [S. 309 CPC].
If the accused person, or any of several accused persons, adduces any evidence, the advocate for
the prosecution shall be entitled to reply [S. 310 CPC].

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

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criminal proceedings. As recorded earlier, the overall power over criminal proceedings has now
been vested by the 2010 Constitution in the DPP [Art.157 (6)].
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 [S. 311 CPC].

v. Close of Hearing
When the case on both sides is closed, the judge shall give judgment [S. 322(1) CPC].
If the accused is convicted, the judge shall pass sentence on him/her according to law [S. 322(2)
CPC].
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 are the capital offences of murder [S. 204 of the Penal Code (PC)] and treason
[S. 40(3) PC]. Further note may be made that murder and treason are not the only capital offences
in Kenya. Others are: robbery with violence [S. 296(2) PC], administration of unlawful oaths
purporting to bind the taker to commit a capital offence [S.60 PC] and attempted robbery with
violence [S. 297(2) PC] but these latter capital offences are tried (for historical reasons and as a
matter of practical reality) by subordinate courts.

c) 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 [Art.165(6)]. 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 [Art.165(7)].

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 [S.
362 CPC].

Note should be made here that Section 363(1) of the CPC confers a corresponding power on subordinate
courts of the first class to call for and examine records of any criminal proceedings of subordinate courts of

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a lower class established within the first class courts’ local limits of jurisdiction, for a similar purpose as the
High Court is empowered to discharge by Section 362. At first sight, Section 363(1) may appear to mean
that subordinate courts of the first class have the same revisionary jurisdiction as the High Court. It is
submitted that such interpretation is not quite correct, firstly, because Article 165(7) of the Constitution
alludes only to the High Court as the one clothed with supervisory jurisdiction, to the extent of being able
to make orders or give directions it considers appropriate to ensure the fair administration of justice.
Section 363(1) of the CPC, however, only enables a court of the first class to inquire into the legality,
correctness or propriety of criminal proceedings of a subordinate court of a lower class without conferring
on the first class subordinate court any power to make corrective measures. On the contrary, Section
363(2) clarifies that if a first class subordinate court acting under subsection (1) considers that a finding,
sentence or order of the lower class court is illegal or improper, all the first class subordinate court is
empowered to do is forward the record in question with the first class court’s remarks thereon to the High
Court – which must mean that it is only the High Court which can make appropriate corrective measures
through revision.
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(3), (b), (c) & (d); 357 and 358, and may
enhance the sentence [see illustration in the extracts from Kamau John
Kinyanjui’s case at Annexure I];
• in the case of any other order other than an order of acquittal, alter or reverse
the order [S. 364(1)(a) & (b) CPC].
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;
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

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appealed [S. 364 CPC].

NB:
It is important to note that one of the reasons for revision by the High Court of decisions by
subordinate courts in exercise of their criminal jurisdiction is for the High Court to satisfy itself of
the propriety of any finding, sentence or order recorded or passed by subordinate courts. The
High Court has wide discretion as to when to exercise its revisionary jurisdiction and it can in appropriate
cases exercise its revisionary jurisdiction sui motu even where the matter has been brought to its notice by
an aggrieved party who has or had a right of appeal (which such party has not exercised): see R vs. Ajit
Singh s/o Vir Singh [1957] E.A. 822

With regard to sentence, where the High Court is of the view that a sentence passed by a
subordinate court is, for instance, disproportionately low, it is open to the High Court, in exercise
of its revisionary jurisdiction, to interfere with such sentence by enhancing it, as happened in
Kamau John Kinyanjui’s case aforesaid. Conversely, the High Court is also empowered, in
exercise of its revisionary jurisdiction, to reduce a sentence passed by a subordinate court if in the
opinion of the High Court the sentence is disproportionately high: See, for instance, the extracts
relating to Jennifer Wanjiku’s case at Annexure II.

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 [S. 366 CPC].

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 ANNEXURE I

HIGH COURT (NAIROBI) CRIMINAL APPEAL NO. 544 OF 1999

KAMAU JOHN KINYANJUI---------------------------------------------------- APPELLANT

VERSUS
REPUBLIC-------------------------------------------------------------------------RESPONDENT

Extracts from the judgment of the high Court illustrating an instance where the Court exercised
appellate powers to enhance sentence in the course of exercising revisionary jurisdiction: Ref.
Section 354(3)(a)(ii) CPC

On 01.12.94 prison officers who were travelling in a prison lorry from Kamiti prison to
Nairobi were involved in an accident near Ruaraka, Nairobi. Several of them died as a result
of the accident.

Kinyanjui who was an Advocate of the High Court of Kenya, through an agent, solicited
instructions from relatives of the deceased prison officers and represented to them that he
had the authority of the Government to act on their behalf to secure requisite compensation.

Kinyanjui’s agent managed to persuade some of the deceased officers’ families to give and
they gave instructions for Kinyanjui to act in the matter but other deceased officers’ families
gave no instructions. All the same Kinyanjui filed suits for both sets of families and claimed
compensation. He also commenced negotiations with a State Counsel at the Attorney-
General’s Chambers for out of court settlement in respect of the deaths of the prison officers.
Evidence adduced before the trial magistrate indicated that the State Counsel did not have
approval from his seniors to negotiate settlement.

Eventually the State Counsel presented settlement proposals to the Ministry of home Affairs
which issued two cheques in settlement: One for Kshs. 52,170,800/= which was paid to
Kinyanjui; and another for Kshs. 23,439,300/= which was stopped when it was discovered
that the payments were made without authority.

An attempt to stop the cheque for Kshs. 52,170,800/= failed as Kinyanjui had cashed the
cheque and moved the proceeds from his clients’ account to another, unknown, account.

Kinyanjui made payment to some of the family members of the deceased officers amounting
to a tiny proportion of the amounts received by him on their behalf.

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Following police investigations, Kinyanjui was arraigned in court on over 20 counts of theft
by agent, contrary to Section 283(c) of the Penal Code, Cap. 63. On 24.05.99 Kinyanjui was
convicted on 18 counts and sentenced to a fine of Kshs. 50,000/= on each of the 18 counts
(total Kshs. 800,000/=); in default, he was to serve 12 months imprisonment on each of the
said counts. Kinyanjui was also ordered to make restitution. He paid the fines but never
made restitution as ordered.

In his defence, Kinyanjui had contended that the police arrested and charged him before he
could pay all that was due to the deceased prison officers’ families, less his disbursements
and legal fees. The trial magistrate disbelieved him, convicted him and sentenced him as
aforesaid.

On the same day of Kinyanjui’s sentence (24.05.99), the Attorney-General filed an application
in the high Court asking the Court to invoke its revisionary jurisdiction and enhance the
sentence imposed on Kinyanjui.

The High Court, exercising its powers under Section 362 CPC called for the lower court
record to satisfy itself as to the sufficiency, correctness and adequacy of the sentence passed
by the trial magistrate and to take corrective measures if such action was warranted.

On 02.06.99 the high Court issued notice under Section 364(2) CPC to Kinyanjui to show
cause why the sentence passed on him should not be enhanced. On 07.06.99 Kinyanjui filed a
petition appealing against his conviction only.

Both Kinyanjui’s appeal against conviction and the State’s application for enhancement of
sentence were ultimately heard by the High Court on 19.05.04.

The High Court (Kubo, J and Kimaru, Ag. J- as they then were) dismissed Kinyanjui’s appeal
and proceeded to enhance the sentence to include the fines already paid plus 4 years
imprisonment on each of the counts on which he had been convicted, the prison sentences to
run concurrently. The High Court summed up its view of the sentence passed on Kinyanjui
thus:
‘For the trial court to sentence the Appellant to pay a fine of Kshs. 800,000/= after convicting him
of stealing Kshs. 52,170,800/= smacks of rewarding the Appellant for the theft committed. The
said Sentence imposed was manifestly inadequate and inappropriate. We, therefore, substitute the
said Sentence with a sentence commensurate with the gravity of the offence.’ Kinyanjui challenged
the High Court Judgment vide Court of Appeal Criminal Appeal No.295 of 2005: Kamau John
Kinyanjui vs. Republic [2010] eKLR. The Court of Appeal dismissed his appeal, adding the
hope that Kinyanjui was no longer practicing law.

There is another lesson which may be drawn from Kinyanjui’s case, not necessarily from the
perspective of criminal litigation but still important for legal practitioners. The lesson is that

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 after the hearing of Criminal Appeal No. 544 of 1999 was concluded, the matter was fixed for
judgment. However, judgment had to be postponed at least three times because Kinyanjui
failed to appear to take judgment. Before the High Court took the next action, Kinyanjui filed
Miscellaneous Application No. 1263 of 2004 in the Constitutional & Judicial Review Division
of the High Court challenging the capacity of the then DPP, Mr. P.K. Murgor to prosecute
High Court Criminal Appeal No. 544 of 1999 before the High Court Criminal Appeals
Division.
The challenge to Mr. Murgor’s capacity to prosecute Criminal Appeal No. 544 of 1999 was
not one of the grounds of appeal in Criminal Appeal No. 544 of 1999. The Constitutional &
Judicial Review Division referred Miscellaneous Application No. 1263 of 2004 to the Criminal
Appeals Division which was dealing with Criminal Appeal No. 544 of 1999. Before dealing
with Miscellaneous Application No. 1263 of 2004, the Criminal Appeals Division noted that
Kinyanjui was in contempt of court for failing to appear to take judgment in Criminal Appeal
No. 544 of 1999; and that he could not be given audience regarding Miscellaneous
Application No. 1263 of 2004 before purging the contempt: See Mawani –vs- Mawani [1977]
KLR 159. Subsequently Kinyanjui appeared before the Criminal Appeals Division to take
judgment in Criminal Appeal No. 544 of 1999 whose outcome was as outlined above.

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 ANNEXURE II

ILLUSTRATION OF MITIGATION OF SEVERITY OF SENTENCE THROUGH

EXERCISE OF HIGH COURT REVISIONARY JURSIDICTION: THE CASE OF
JENNIFER WANJIKU [EXTRACTS FROM THE DAILY NATION OF FRIDAY, MAY 30,
1986]

On March 20, 1986 Ms Jennifer Wanjiku was arraigned before Murang’a District Magistrate II
on a charge of stealing Kshs. 350/= from one Mr. Kariuki in a room at Super Lodge
(Murang’a).

Circumstances of the offence as reported by the newspaper were –
• That on the material evening, Wanjiku was going home when she met Kariuki who asked
her to accompany him to lodging and the two ended up in a room at Super Lodge.
• That while Kariuki was asleep, Wanjiku took Kshs. 350/= from his pockets and walked
out of the room.
• That on Wanjiku’s way out she was stopped by a watchman whom she offered Kshs.
20/= but the watchman refused the money and escorted her to the lodge owners.
• That Wanjiku was questioned and taken back to the room where Kariuki was still
sleeping.
• That when Kariuki was awakened, he checked his pockets and found Kshs. 350/-
missing.
• That the police were called and they found Wanjiku with Kshs. 330/=.
• That Wanjiku was taken to court and arraigned as aforesaid where upon she pleaded
guilty to the charge.
• That in mitigation Wanjiku, who was not legally represented, said:
“I was too drunk and I did not know what I was doing.”
• That on April 4, 1986 the Magistrate had asked for a probation officer’s report but two
weeks later the probation officer reported that Wanjiku had mentioned 5 places as her
homes (Githurai, Zimmerman, Roysambu, Gatuu & Kimathi) which made it difficult to
get a report on her.
• That the Magistrate then ordered as follows:
“Since the accused has refused to co-operate with the probation officers who
would have submitted a report with a view to finding out whether she could be
placed on probation, the court is left with no alternative but to cancel the order
referring her to the probation officers.”

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Consequently upon the foregoing, the Magistrate’s Court sentenced the accused Jennifer
Wanjiku to 12 months imprisonment.

The newspaper report added –
• That subsequently Wanjiku’s 5 children aged 10, 9, 7, 5 and 3 were found hungry and
miserable in their makeshift house at Zimmerman (Nairobi) by a Christian couple, Mr. &
Mrs. Philip Gwehona.
• That the children had been scavenging for food and receiving assistance from
neighbours, unaware of their mother’s whereabouts.
• That Mr. & Mrs. Gwehona took the children to their (Gwehonas’) home, washed them
and replaced their tattered clothes, shaved their heads to wipe out lice and bandaged
their wounds.
• That Mr. & Mrs. Gwehona then made the children’s plight public through the Daily
Nation newspaper.

On May 26, 1986 a Nairobi lawyer, Mr. Gerald K. Mwirichia wrote to the Ag. CJ (late Justice
Madan) appealing to him to exercise the High Court’s revisionary powers conferred by
Sections 362 and 364 of the Criminal Procedure Code.

The Ag. CJ called for the case file from Murang’a Law courts and upon receiving it sought
the views of the State on the matter. The Ag. CJ also issued a production order to Lang’ata
G.K. Prison directing the Superintendent in charge to produce Wanjiku before him (Ag. CJ)
when her case was to be discussed with the State. The State was represented in the matter by
the then Deputy Public Prosecutor (DPP), Mr. Benjamin Kubo.

The DPP supported Wanjiku’s conviction as she had accepted the facts narrated to the trial
court by the prosecutor. In the DPP’s view, it was not clear whether the man the accused
stole from was an old acquaintance or whether this was a case of love at first sight. Whatever
the case, the DPP submitted that having regard to the circumstances of the case, the ends of
justice would be met if the accused was released conditionally, to be of good behaviour for 6
months.

The Ag. CJ agreed that the Magistrate had acted rightly because a court could not make a
probation order for a convict without a report about his or her background. He (Ag. CJ)
accepted the Republic’s suggestion that the ends of justice would be met if the accused was
ordered to be conditionally discharged.

The accused, Jennifer Wanjiku was conditionally discharged under Section 35(1) of the Penal
Code.

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 CHAPTER ELEVEN
APPEALS AND REVIEWS
APPEALS
A. Appeals may be divided into two broad categories, namely;
a) Appeal from Magistrates courts to the High Court;
b) Appeal from High Court to the Court of Appeal;
c) Appeals from the Court of Appeal to the Supreme Court;
d) Appeal from a court or tribunal other than the Court of Appeal directly to the Supreme
Court in exceptional circumstances;

B. APPEALS FROM SUBORDINATE COURTS

The Criminal Procedure Code provides that a decision of a subordinate court of the first or
second class may be appealed against to the High Court. However, if the decision is still upheld,
whether wholly or partly, the aggrieved party with the leave of the High Court, may appeal to
the High Court142. Such appeals to the High Court may be on matters of fact as well as of law.143
The relevant question here is what amounts to a matter of law and what amounts to a matter of
fact. A judicial exposition of this issue may shed some light on it, and the case of The Attorney-
General vs. Marakaru144 is helpful. The judicial significance of this case is what is meant by a
question of fact and a question of law. Further it states what an erroneous decision in law is. It
was said that a decision is erroneous in law if it is one to which no court could reasonably come
to. The court always has to ask the question whether the determination is one which could be
reached by a reasonable tribunal applying its judicial mind.

C. COMPETENCE OF APPFAL UNDER S 348(A)

Under section 348 (A) of the Criminal Procedure Code, 'when an accused person has been
acquitted on a trial held by a subordinate court, or where an order refusing to admit a complaint
or formal charge or an order dismissing a charge has been made by a subordinate court the
Attorney-General may appeal to the High Court from the acquittal or order on a matter of law.
This section is relevant to the above discussion on questions of law and fact in that it deals with
matters of law. Once this is understood, the issue will have been resolved because the remainder
will be matters of fact.

142 Section 347(1) Criminal Procedure Code (Cap 75).

143 Section 347(2.) Criminal Procedure Code (Cap 75).
144 (1960)EA, 484.

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 D. LIMITATION OF TIME
Section 349 of the Criminal Procedure Code provides that;
"An appeal shall be entered within fourteen days of the date of the order or sentence appealed
against.145
The proviso to this section allows an appeal to be entertained even though it is time barred, if the
appellant has good grounds or reason for the delay. One of the reasons is that of the appellant's
or his advocate's inability to obtain, a copy of the judgment or order appealed against and a copy
of the record, within a reasonable time of applying to the court there.
It is noteworthy that no appeal is allowed where an accused person, has been convicted on his
own plea of guilty. However, an appeal, may be even in such cases but only to determine the
legality of the sentence146.

E. SUMMARY REJECTION AND PRECISION OF THE APPEAL

Section 352 of the Criminal Procedure Code allows for an appeal to be summarily dismissed.
There are various grounds on which such a dismissal may be ordered. A summary dismissal
without the appellant or his advocate being heard. Arnold Pudo s/o Aranda –vs- R147 considered,
the issue and the court' of Appeal's decision thereon forms the 'locus classicus' on it. The
appellant was convicted by a Magistrate of shop breaking and theft and was sentenced to six
years' imprisonment. The supreme court summarily rejected the appellant's appeal against
conviction and sentence under section 352(2) of the Criminal Procedure Code, without the
appellant OK his advocate being heard in support of it. On a second appeal it was contended that
the supreme court was not entitled to summarily reject an appeal under section 352(2) except
where the grounds of appeal are that the conviction is against the weight of evidence, or that the
sentence is excessive whereas in the instant case a ground of appeal was that "the Magistrate
erred, both on a point of law and facts". It was held, in dismissing the appeal, that: Firstly, the
ground of appeal, that "the Magistrate erred on both point of law and facts" was too vague to
constitute such a ground of appeal as to take it (appeal) outside section 352(2) and in view of the
mandatory requirements of section 350(2) of the Criminal Procedure Code, the supreme court
quite properly ignored it as being no proper ground of appeal, at all and would have been within
its rights to have struck it out. Secondly, it was held that since the remaining grounds of appeal,
admittedly fell within, section 352(2), the Supreme Court had jurisdiction to dismiss the appeal

145 Chapter 75 of the Laws of Kenya Criminal Procedure Code.

146 Section 348 - In the case of David Mbewa Ndeda v Republic Criminal Appeal No. 1 of 1989 the
Kenyan Court of Appeal composed of Justices of Appeal Gachuhi, Masime (Now deceased) and Omolo (then Ag. Judqe of
Appeal) while confirming the statutory position stated that 'the plea mus'l have been unequivocal citing an earlier case of Mains
vK (1973)EA 445 16. EA 380.
147 (1960)E.A380.

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summarily.

Section 352(2) empowers the court to reject an appeal summarily if, and only if, the appeal is
brought on the ground "that the conviction was against the weight of evidence; or that the
sentence is excessive."

F. SUMMARY ALLOWANCE OF APPEALS

When an appeal is lodged against conviction a judge of the superior court will peruse the entire
record including the grounds as set out in the Memorandum of Appeal. If upon perusal of the
record the judge is of the opinion that the conviction cannot be supported then pursuant to
section 352A of the Criminal Procedure Code, if the Attorney General has also informed the court
in writing that he does not support the conviction, the judge may summarily allow the appeal.

G. ADMISSION OF ADDITIONAL EVIDENCE ON APPEAL

The law prohibits the admission of new evidence on appeal. It is required that only the evidence
which, was adduced at the trial should he entertained. However, the law recognizes that
sometimes material evidence may not have been available at the time of the trial. In such cases, it
has allowed new evidence to be produced in the court exercising appellate jurisdiction148. This is
left to the discretion of the court. The discretion should however be exercised along well-defined
guidelines and which guidelines must be those that are well settled.

H. APPEALS FROM THE HIGH COURT

Appeals from the High Court lie to the Court of Appeal. A party to an appeal, from a
subordinate court may appeal against a decision of the High Court in its appellate jurisdiction on
a matter of law. The court of Appeal is not to hear an appeal on a matter of fact. Its noteworthy
that severity of a sentence is a matter of fact and therefore an appeal does not lie to the Court of
Appeal.149 However, the Court of Appeal's jurisdiction to entertain an appeal from the High
Court is subject to various other limitations. The Court of Appeal's jurisdiction is ousted with
regard to a refusal by the High Court to admit an appeal out of time under section 349 The above
decision by the High Court is final.150

]. APPEAL IN THE ABSENCE OF WRITTEN RECORDS

Sometimes, the Court of Appeal may be confronted with an appeal where no written records of

148 See section 358 Criminal Procedure Code (Cap 75).

149 Section 361(l)(a) Criminal Procedure Code (Cap 75).
150 Section 361(8) Criminal Procedure Code (Cap 75).

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the lower court's decision are available. This is a difficulty which the Criminal Procedure Code
has not focused sharply on but the courts have filled the lacunae. The course to be followed
where no such records are available was given by the East African Court of Appeal inn Misana –
vs- R151. The appellant, formerly a District Magistrate was convicted by a Resident Magistrate of
theft. He appealed to the High Court and the judge, ordered that additional evidence be taken,
the judge again considered the appeal, and made a note that judgment would be delivered later,
the 6th of August 1966. That judgment was never delivered. On November 30, 1966, Platt J
considered the matter and, since it appeared that on 6th August 1966 the Judge had "verbally"
announced, that the appeal was dismissed and reasons would be given later, allowed the
appellant to appeal to the court of Appeal. In February 1967, the Court of Appeal considered the
papers and ordered that the proceedings before the trial Magistrate be copied to form part of the
record. Subsequently the Court of Appeal in the absence of the appellant further considered, the
appeal and ordered, a re-hearing before the High Court. The reasons for the re-hearing were
given as that there being no written record of the decision of the High Court nor any reasons for
the decision, the only proper cause was to remit the matter to the High Court for the original,
appeal to be reheard. This was in accordance with the principles behind the decisions in the two
cases of Zaver –vs- R152 and Yosefu Muwonge and two others –vs- Uganda153 where the Court of
Appeal ordered a re-hearing in cases where the record or an important part thereof had been lost.

K. CONCLUSION
From the above, it is clear that there are various principles upon which the appellate
court will allow or dismiss an appeal. The overriding principle is that if a failure or miscarriage of
justice has been occasioned, then an appeal would, be allowed. A simple procedural error that is
not of such. Great weight as to occasion a failure of justice cannot warrant the appeal being
allowed. Thus, the Court of Appeal in Murimi -vs- R154 noted that it does not reverse a conviction
on account of any error by the trial court unless the error has intact occasioned a failure of justice.
It must however be understood that procedural propriety is very important and that the rules of
procedure are framed to provide a fair trial. A breach of the procedural rules therefore raises a
presumption that there has been an unfair trial ,However, trivial defects which have not
occasioned a failure of, or miscarriage of justice will not be enough ground of appeal.
There are commonly known grounds of appeal. These include:
(a) Defects in the Charge.

151 (1967)E.A334
152 (1952)19 E.A.C.A 244.
153 Cr. App. No. 86 of 1965 (unreported).
154 (1967) E. A 542.

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 (b) Wrongful admission of evidence.
(c) Wrongful exclusion of evidence.
(d) Absence of Corroboration.
(e) Misdirection as to the law or procedure applicable to the case in question.
(f) Inadequate interpretation: It should be noted here that a word has no absolute meaning.
Its meaning is relative to the context. Thus in Shire155 the case depended on the
interpretation, of the word meat under the Eldoret Municipal by-laws. The High Court
held that the word meat includes meat: and offal of any animal intended for human
consumption irrespective of whether it has first to be cooked or not.
(g) Where there has been a miscarriage of justice due to an error of procedure.
(h) A decision which is unreasonable and cannot be supported having
(i) regard to the evidence adduced.
(j) An unlawful sentence.

These are some of the more common grounds of appeal, but the list is not closed. As the legal
system develops, one would hope that more grounds will be continually added so that an
aggrieved party has all the legal machinery at his sentence.
NB: refer to Patrick’s Kiage, Essentials of criminal Procedure for more information on this topic.

REVISIONS
A. INTRODUCTION
Revision is a power bestowed upon a court to revise the records of an inferior court Section 362 of
the Criminal Procedure Code empowers the High Court to call for and examine the record of any
Criminal proceedings before any subordinate court. This it does to satisfy itself as regards the
correctness, legality or propriety of any finding, sentence or order recorded or passed, and also as
to the regularity of any proceedings of any such subordinate court.
The powers of the High Court when exercising its revisional jurisdiction are defined by the
Criminal Procedure Code at section 364. It is provided that in the case of a proceeding in a
subordinate court the record of which has been called for or which has been reported for orders,
or has otherwise, come to the knowledge of the High Court, it may, if 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
(Criminal Procedure Code) and enhance the sentence. These powers of appeal are discussed later.
But if it is in the case of any other order other than an order of acquittal, it may alter or reverse

155 (1967)E.A39.

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the order.156 The High Court cannot inflict a greater punishment for the offence which in the
opinion of the High Court the accused has committed than might have been inflicted by the court
which imposed the sentence157.
Section 364(5) states 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.
The High Court when exercising its powers of revision has discretion to hear or not to hear the
parties either personally or through their advocates. However, the court may hear any party
either personally or by an advocate158. This is so considering the requirement of section 364(2)
which states:
''No order under this section shall, be made to the prejudice of an accused person unless he
has had an opportunity of being heard either personally or by an advocate in his own
defence".

All proceedings before the High Court in the exercise of the revisional jurisdiction may be heard
and any judgment or order thereon may be made or passed by one judge. But if and 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 he upheld159.
Upon revision by the High Court, it shall certify its decision or order to the Court by which the
sentence or order so revised was recorded or passed and that court is to make orders in
conformity with the decision so certified and where it is necessary shall amend, the record to
accord with the decision160.
This is briefly the procedural requirements when a court either subordinate or the High Court
has to exercise revisional powers. Having so described the procedure, it is necessary to examine
how courts have exercised this jurisdiction and further how the procedure, as laid in the Criminal
Procedure Code has been applied.

B.EXTENT OF POWERS OF REVISION

The extent to which a court may revise records has also been the subject of judicial determination.
Although no iron clad rule has as yet been made, the various decisions shed some light on the
point. The Kenyan case of Nathan Godfrey Odhiambo Obiro vs. R161 is relevant. The appellant

156 Section 364(1) (a) (b) Criminal Procedure Code (Cap 75).
157 Section 364(5) Criminal Procedure Code (Cap 75).
158 Section 365 Criminal Procedure Code (Cap 75).
159 Section 366 Criminal Procedure Code (Cap 75).
160 Section 367 Criminal Procedure Code (Cap 75).
161 (1962)EA650.

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was convicted of forging and altering contrary to section 352 and 356 of the Penal Code, and was
given, an absolute discharge under section 35 of the Penal Code. The Supreme Court called for
the proceeding's under section 362 of the Criminal Procedure Code and the case was listed for
argument whether the sentence or final order should be altered under the- powers of revision
vested in the court. It was submitted for the appellant that an order of absolute discharge under
section 35 is not a sentence and that there was no power in revision to set aside an order such as
that. The Crown submitted that an order of absolute, discharge is technically a sentence in as
much as it is a definite judgment pronounced in criminal proceedings. The Supreme Court of
Kenya made the following findings;

• an order of absolute discharge under section 35 of the Penal Code is technically a

sentence and may be enhanced in revision under the powers contained in section 364(1)
of the Criminal Procedure Code;
• even if the absolute discharge were not technically a sentence it would be an "other
order" and could be altered in revision under section 364(1) of the Criminal Procedure
Code.

This shows that so long as a finding, sentence or order falls within the contemplation of section
364 of the Criminal Procedure Code the High Court has jurisdiction to act upon it on revision,
other factors is remaining constant.

As seen from above, the court does not enjoy jurisdiction to revise proceedings culminating in an
acquittal. However, a finding of ‘autrefois acquit’ is treated differently. In the case of Semuyaga vs.
Uganda162, it was held that a finding of autrefois acquit is a final finding but subject to revision.

The powers of the High Court when exercising its revision jurisdiction allows it to alter a
sentence. This was observed in Juma Keshallila vs. R163. The appellant was convicted of stealing
by a Magistrate who under the powers conferred by section 305(1) of the Tanzanian Criminal
Procedure Code ordered that the appellant be released upon entering a bond to appear and
receive sentence- at any time within three years if called upon and in the meantime to be of good
behaviour. In revision, the High Court set aside the order of the Magistrate and substituted, a
sentence of one year's imprisonment. The appellant appealed on the ground that the High Court
had no power to substitute a sentence of imprisonment for an order made by the Magistrate

162 (1975)EA186
163 (1963)EA184.

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under section 305(1) of the aforesaid code, which provides that:
"... if it appears to the court before which the offender is convicted that... it is expedient to release the
offender on probation, the court may, instead of sentencing him at once to any punishment, direct
that he be released on his entering into a bond... to appear and receive sentence when called upon..."

The East African Court of Appeal held that firstly an order made under section 305(1) does not
amount to a sentence and that in revision the High Court has power to substitute a sentence of
imprisonment for a probation order to come up for sentence if called upon.

C. REVISIONAL JURISDICTION WHEN RIGHT OF APPEAL EXISTS AND IS

NOT EXERCISED
Under the Criminal Procedure Code it is clearly provided 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 appealed164"

The above provision was judicially considered by the East African court of Appeal in R -vs- Ajit
Singh s/o Vir Singh165 The accused was tried for theft of timber contrary to the Penal Code and at
the end of the prosecution case the Magistrate held that there was no case to answer. The
accused, was acquitted and was awarded Shs. 500/- as compensation as the Magistrate regarded
it "frivolous in the extreme for him to have been re-charged". About a month, earlier the accused,
had been charged with an exactly similar charge-but it was withdrawn. The present case was
brought before the Supreme Court by way at revision at the instance of the Attorney-General., to
review the finding that the charge was frivolous. Edmunds -J- before whom this case originally
came adjourned it for consideration before a full bench. At the subsequent hearing, counsel for
the accused took preliminary point that section 364(5) of the Criminal Procedure Code, precluded
the court from exercising revisional jurisdiction because the matter was brought to the notice of
the court by a party who had a right of appeal against the Magistrate's decision byway of case
stated. The Crown made two arguments; Firstly that on the facts, this was not a frivolous or
vexatious prosecution and that the question whether it was or was not, was one of fact, and that
an appeal by way of case stated did not lie. Secondly, that, if an appeal did originally lie, the time
for preferring an appeal had expired when the crown requested the court to exercise its powers of
revision and that sub-section (5) of section 364 is not designed to exclude the power to entertain a
revision in such circumstances. In setting aside the order of compensation., Rudd Ag C-J, Connell

164 Section 364(5) Criminal Procedure Code (Cap 75).

165 (1957)EA 822,

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and Murphy J made, the following ruling, that:

(a) Sub-section (5) of section 364 (Criminal Procedure Code) is not intended to preclude
the supreme court from considering the correctness of a finding, sentence or order
merely because the facts of the matter have been brought to its notice by a party who
has or who has had a right of appeal and is not intended to derogate from the wide
powers conferred by sections 362 and 364.
(ii) the supreme court can, in its own discretion, act 'suo motto' even where the matter has
been brought to its notice by an aggrieved party who had a right of appeal.

At other times, an appeal may have been lodged but it is subsequently withdrawn. This does not
deny the High Court competence to exercise its revisional jurisdiction if it considers that the
order or sentence is illegal. This was considered in Uganda -vs- Polasi166. In this case the accused
was sentenced to an illegal term of imprisonment He filed an appeal but withdrew it and it was
thereby deemed to have been dismissed. The sentence was subject to confirmation and had not
been confirmed. The High Court held that it had power to revise the illegal sentence. Dickson -J-
noted that an abandoned appeal may be restored in a proper case on application by an appellant.
He observed that in this case the appellant had not applied and a pertinent question to be asked,
was whether the court can of its motion restore an abandoned appeal. He took the view that
inasmuch as an abandoned criminal appeal may be re-stored where, the court is 'functus officio',
the High court can of its own motion, in the exercise of its revisional powers under the Criminal
Procedure Code, where there is a fundamental illegality make a revisional order without an
accused applying, in the case where an appeal had been previously dismissed by the mere
operation of the law.

Dickson -J- further observed that it would be lamentable in the circumstances of the case Uganda
-vs- Polasi if the court in the absence of an application by the accused to withdraw his notice of
abandonment of his appeal, could not reduce the sentence to its legal, limits by the exercise of its
revisional powers.
From the above, it is clear that sub-section (5) of section 364 of the Criminal Procedure Code does
not work to limit the powers of the High Court in exercise of its revision al jurisdiction if the
order or the sentence is manifestly illegal. The interpretation of the court with regard to the above
is a welcome one because it has insisted that substantive justice should not be sacrificed for mere

166 (1970)EA638.

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technicalities.

E. A FINDING OF AUTREFOIS ACQUIT AND REVISION

The Criminal Procedure Code at section 364(1) (b) provides that in the case of a proceeding in a
subordinate court the record of which has been called for or which, has been reported for orders,
or which otherwise comes to its knowledge, the High Court may in the case of any other order
other than an order of acquittal, alter or reverse the sentence', This clearly throws an order of
acquittal out of revision. The case of Semuyaga vs. Uganda167 shows that an order of 'autrefois
acquit' is a final order or finding and it is subject to revision. It is not to be understood as meaning
'acquit'. The finding that a person had been acquitted of a certain offence charged does not mean
the same thing as the acquittal itself.

167 (1975)E.A 186.

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 CHAPTER TWELVE
SPECIAL PROCEEDINGS
12. PRIVATE PROSECUTIONS
WHAT IS PRIVATE?
• Relates or belongs to an individual as opposed to the public or government
confidential/secret
• Public relates to or belongs to an entire community, state or nation open or available for
all to use, share or enjoy

PROSECUTION
• to bring charges against a person
• Art. 157(6) (a) vests in the DPP state power to prosecute
• Art 157(6)(b) permits DPP to take over and continue any criminal proceedings
commenced in any court (other than a court martial) that have been instituted or
undertaken by another person or authority, with the permission of the person or
authority;
• Art 157(6)(c) subject to clause (7) and (8), discontinue at any stage before judgement is
delivered any criminal proceedings instituted by the DPP or taken over by the DPP
under Para(b)
• Art.157 (7)-if the discontinuance of any proceedings under clause (6) (c) takes place after
the close of the prosecution’s case, the defendant shall be acquitted.
• Art.157 (8) the DPP may not discontinue a prosecution without the permission of the
court.

PUBLIC PROSECUTION
• There is no express constitutional provision for private prosecution
• This power is implied by virtue of art. 157(6)(b) which is on same terms as old
constitution’s s.26(3)(b)168
• conduct of criminal prosecutions is always a matter of public interest
• AG is under duty to safeguard public interest as he manages prosecutorial process
(Gregory & another v r thro’ Nottingham & 2others (2004)KLR 547
• There are instances when the AG fails/neglects/refuses to discharge his constitutional
obligations;

168
See Kimani V. Kihara (1985)KLR 79

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 • Private individuals have the power to step in and prosecute;
In the English House of Lord’s case, Gouriet vs. Union of Post Office Workers and others [1977] 3
All ER 70, Lord Wilberforce, the following passage appears [p79];
“Enforcement of the law means that any person who commits the relevant offence is prosecuted. so it is the
duty… of the director of public prosecutions or of the attorney general, to take steps to enforce the law in
this way. failure to do so, without good cause, is a breach of their duty… the individual, in such situations,
who wishes to see the law enforced has a remedy of his own: he can bring a private prosecution...this
historical right which goes right back to the earlier days of our legal system, though rarely exercised in
relation to indictable offences, and though ultimately liable to be controlled by the attorney-general (by
taking over the prosecution and, if he thinks fit, entering a nolle prosequi) remains a valuable constitutional
safeguard against inertia or partiality on the part of authority.

HOW TO INITIATE PRIVATE PROSECUTION

• One must seek court’s permission to prosecute privately;
• Essence of permission is to sieve busy bodies and malicious elements from serious
private public interest defenders;
• In the case of a private prosecution an application must first be made under S. 88 (1) of
the CPC for the Magistrate trying the case to grant or refuse to grant permission to the
Plaintiff to conduct a private prosecution.
• It is after permission has been granted for the private prosecution to be conducted that
S.89 and S. 90 of the CPC can be brought into effect and the criminal proceedings
instituted.
• Kimani vs. Kahara [1985 KLR 79] 88 Simpson and Sachdeva JJ stated that to privately
prosecute the trial court should consider the following in granting permission: -

CONDITIONS PRECEDENT TO GRANT OF PERMISSION

“Principles to be applied; When an application is made under section 88 to conduct a private prosecution
we think that the magistrate should question the Plaintiff to ascertain whether a report has been made to
the Attorney General or to the Police and with what result. If no such report has been made the magistrate
may either adjourn the matter to enable a report to be made and to await a decision thereon or in a simple
case of trespass or assault proceed to grant permission and notify the Police of that fact.”
In The Case of Floriculture International Limited And Others, [High Court Misc. Civil
Application No. 114 Of 1997], Kuloba, J. held at page 38 to 39: -
“For all these reasons criminal proceedings at the instance of a private person shall be allowed to start or to
be maintained to the end only where it is shown by the private prosecutor;

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 1. that a report of the alleged offence was made to the Attorney General or the Police or other
appropriate public prosecutor, to accord either of them a reasonable opportunity to commence or
take over the criminal process, or to raise objection (if any) against prosecuting; that is to say, the
complainant must firstly exhaust the public machinery of prosecution before embarking on it
himself; and
2. that the Attorney General or other public prosecutor seized of the complaint has taken a decision
on the report and declined to institute or conduct the criminal proceedings; or that he has
maintained a more than usual and reasonable reticence; and either the decision or reticence must
be clearly demonstrated; and
3. that the failure or refusal by the State agencies to prosecute is culpable and, in the circumstances,
without reasonable cause, and that there is no good reason why a prosecution should not be
undertaken or pursued; and
4. that unless the suspect is prosecuted and prosecuted at the given point of time, there is a clear
likelihood of a failure of public and private justice; and
5. the basis for the locus standi, such as, that he has suffered special and exceptional and substantial
injury or damage, peculiarly personal to him, and that he is not motivated by malice, politics, or
some ulterior considerations devoid of good faith, and
6. that demonstrable grounds exist for believing that a grave social evil is being allowed to flourish
unchecked because of the inaction of a pusillanimous Attorney General or Police force guilty of a
capricious, corrupt or biased failure to prosecute, and that the private prosecution is an initiative
to counter act the culpable refusal or failure to prosecute or to neutralize the attempts of crooked
people to stifle criminal justice.”

These two cases give guidance to lower courts in exercise of their powers under S. 88(1) of the
Criminal Procedure Code.
In Amwona &Others V KBL HC. Misc. App No.19/04, at page 19 and 20 Emukule J. said: -
“In our custom and practice, where an offence is alleged to have been committed, or that there is a
conspiracy in the air to commit a crime, an offence, cognizable in law, the first public right of defence is to
hie and hasten to report the matter to the nearest Police Station. That is the exhortation of “Utumishi Kwa
Wote” that is spread all over the city “to help us fight crime.” If there is no response from the Police, or the
Police appear reluctant to take up the matter, the next course of action is to report or write to the Attorney
General who has power under Section 26(4) of the Constitution to require the Commissioner of Police to
investigate any matter which, in the Attorney’ General’s opinion, relates to any offence or alleged offence
or suspected offence, and the Commissioner is bound to comply with that requirement and is further bound
to report to the Attorney General upon such investigation. If the Plaintiff has exhausted those channels and

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to his dismay, neither the Police, nor the Attorney General take up his complaint he/she is legally entitled
to seek permission under Section 88(1) of the Criminal Procedure code, to institute what is commonly
called a “private” or a “citizen’s” prosecution.”

Emukule J. in this case was commenting on the various steps an individual may take to have his
complaint acted upon by the public prosecutorial mechanism and how they graduate from the
Police to the Attorney General and finally to private prosecution;

Kimani vs. Kahara [1985 KLR 79] 88 Simpson and Sachdeva JJ stated: -
“In the context of section 88 of the CPC, however, trying we think must include taking a plea. It is we
think clear that the trial of the case cannot start before the accused person is before the court. As soon as an
accused person is before him in court for the purpose of pleading to a formal, duly signed charge no
magistrate can properly be described as “trying that case”. It is at this stage that an application may be
made for permission to prosecute. If in the absence of the accused person permission is purportedly granted
to a private prosecutor to conduct a prosecution the power to grant permission cannot be taken to have been
exercised by a magistrate trying a case.”

In Otieno Clifford Richard v Republic [2006] eKLR

DPP argued that the Plaintiff adopted a wrong procedure before the subordinate court, which
did not comply with the provisions of Section 89(4) of the CPC. The DPP submitted that by
applying for summons to issue to the proposed accused before the application for leave to
conduct a private prosecution was granted and before the charge was admitted as drawn and
signed by the court, the Plaintiff’s application was faulty. The DPP argued therefore that contrary
to his contention, the Plaintiff had not complied with the laid down procedure in KAHARA In
the Application of 16th May 2005, the Plaintiff (CLIFFORD) sought the following prayers;
1. That the Plaintiff be granted permission to conduct intended private prosecution against the First
Lady;
2. That the court admit the charge that had been drawn and filed by the Plaintiff’s Counsel;
3. That the court issue Summons compelling the First Lady to appear in court at a date specified in
the Summons;
4. That the Summons be served on the First Lady by the Commandant of the Presidential Escort
through the Kilimani Police Station or any other Police Station nearest to the First Lady.

Section 85 to Section 88 of the CPC deal with “Appointment of Public Prosecutors and conduct
of prosecutions”

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• S. 89 to S.90 of CPC deal with the “Institution of proceedings and making of complaint”.
• CLIFFORD CASE p.17 court said that question of a private prosecution and institution of
proceedings by a private person that first and foremost, permission must be sought for and
obtained from a subordinate court before institution of the private prosecution under S. 88(1)
of the CPC. Before permission is granted there cannot be said to be a prosecutor in that court.
It is after the permission has been granted that the private prosecutor acquires competence to
act as one and to institute proceedings. The proceedings are then instituted either by: -
• Making a complaint under S. 89(1) of the CPC; or
• Bringing before a magistrate a person who has been arrested without
warrant under S 89(1) of CPC; or
• Presenting a formal charge under S. 89(5) of the CPC.

• The Plaintiff was applying for issuance of summons in order for the court to deal with the
charge against the accused. The Plaintiff was not asking for summons to enable the presence
of the accused person as the application for permission to privately prosecute her was being
sought or urged. The prayer is very clear and it sought summons to be issued to the accused
person to answer the charges brought against her. In so far as the Plaintiff was applying to
the court to have the accused person compelled to attend court to answer the charges before
the plaintiff was permitted by the court to conduct private prosecution, then the plaintiff was
overstepping and not following the proper procedure. In order to avoid the confusion that
seems to have attended applications of this nature the court recommended that in order to
have some proper procedure that a private prosecution in criminal proceedings should be
commenced, first by an application before a subordinate court under S. 88 (1) of the CPC for
permission to conduct private prosecution. That application should be heard first and
determined. The magistrate hearing such an application should be guided by the principles
in the Kimani vs. Kahara Case and, The Floriculture International Limited Case, as set out
• After permission has been granted, only then can the Plaintiff institute criminal
proceedings.
• After the complaint is accepted, a charge should then be framed and signed by
the Complainant and the Magistrate.
• After the charge has been signed by the Magistrate, then only, can the Magistrate
issue either summons or warrant to compel the attendance of the accused person
before the court under Section 90 of the CPC, that is, if the accused has not
already been brought before the court on arrest without warrant as envisaged
under S. 89(1) of the CPC.

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 • Once the accused person has appeared before the court, the trial should then
commence with the magistrate reading out the charge to the accused person in
the language that he or she understands.

Private prosecution is a special kind of proceedings where an aggrieved party approaches the
court by way of an application seeking first and foremost permission to: -
(i) Privately prosecute a case; and
(ii) Institute criminal proceedings.

The proceedings are deemed to have commenced once an Applicant lodges his application for
permission under S. 88(1) of the CPC before a subordinate court. At that stage the “trial of the
accused person” cannot be regarded as having begun because: -
a) Permission to prosecute privately had not been granted and therefore the jurisdiction
of both the court to try the case and of the private prosecutor to prosecute had not
been invoked; and
b) there was no formal charge duly signed by the Magistrate even if a charge may have
been filed contemporaneously with the application for permission; and
c) The subject/accused person was not before the court.

• The application for permission to privately prosecute a criminal case is part of a process that
needs to be ventilated in full before the subordinate court.
• It is good practice and an important safeguard if the application were served on the accused
person and the accused should be free not only to be allowed in court at the hearing of the
application for permission to prosecute but also to address the court if he or she desires to do
so.
• It is at this stage that the court must apply the principles and safeguards set out above to
satisfy itself that before the Plaintiff filed the application in the subordinate court for
permission: -
a) He had reported to the Police and or the Attorney General; and
b) reasonable opportunity was accorded to either of the two state agencies to commence
public prosecution; and
c) that the two public prosecutorial machineries have declined to institute the criminal
proceedings or have acted with culpable inertia and partiality; and
d) that the decision not to institute public prosecution by the state agencies is mala fide,
without reasonable cause; and,

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 e) That the Plaintiff has a prima facie case, has suffered injury or damage personal to
himself and that he is not actuated by malice, politics or ulterior considerations
devoid of good faith.

CAN A PP APPEAL ACQUITAL?

• Under s. 348A of the CPC it’s only the AG who can appeal from an order of acquittal by a
subordinate court a private prosecutor is not empowered to file such an appeal
• It was so held in case of Njoroge v Karanja (1984) KLR 662 by Chesoni J said accused had
been acquitted by trial court under s.210 CPC of offence of malicious damage to property.
Private prosecutor’s appeal was dismissed.
• Shah vs Patel (1954) XXI EACA 236 similarly held that a private prosecutor is not entitled to
be heard on appeal.

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 REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATES COURT OF KENYA AT NAIROBI
MISCELLANEOUS Crim APPLICATION NO. OF 2010
………………………………… APPLICANT
VERSUS–
……………..…………..RESPONDENT

NOTICE OF MOTION
(Under Sections ………. And all other enabling provisions of the Law) TAKE NOTICE that this
Honourable Court shall be moved on the day of 2010 at 9.00 o’clock in the
forenoon or soon thereafter for the hearing of an application on behalf of the Respondent for
Orders:-

THAT this Honourable Court be pleased to grant the applicant permission to commence private
prosecution against XXXXX…………….
THAT ……………...
WHICH APPLICATION is supported by the annexed affidavit of ……and is premised on the
following grounds, inter alia.
THAT ……………..
THAT ……………………..

DATED at NAIROBI this day of 2010

xxxxxxxxxxxxxxxx
ADVOCATES FOR THE APPLICANT
DRAWN & FILED BY:
TTTTTTTTT
TO BE SERVED UPON

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 13. INQUESTS/INQUIRIES

An inquest is a judicial proceeding inquiring the circumstances surrounding sudden or unnatural

death of a person. Also the inquiry may involve inconclusive facts as to the cause of death of the
deceased. The inquest is held where a person is missing and is believed to be dead, and there is
need to establish the circumstances surrounding disappearance and the death of the deceased.

Examples of circumstances where inquests are held are;

• Where the deceased body is found at the scene (unresolved murder cases)
• Where the body of deceased is found on the road and there has been an accident ( hit
and run cases)
• Where the deceased has died in circumstances, raising reasonable suspicion that
• it was murder and somebody committed an offence (Yogesh Madan Mohan Case)
• Where a person is found dead in police custody, remand or prison (Kingongo Case)

Section385-388 of the Criminal Procedure Code

The inquest is conducted as a proceeding but it is not a criminal trial per se, as there is no
accused person, there is no defense or prosecution. What really goes on is an inquiry into a
situation or set of circumstances to conclusively determine the cause of death of the deceased
person.

Section 385 of CPC provides that a magistrate of first and second class or one specially
empowered by the Chief Justice shall be empowered to hold inquests. Section 386 provides that a
police officer in charge of a police station or any other police officer specially empowered by the
Minister in that behalf on receiving information that a person has
(a) person has committed suicide;
(b) Been killed by another or by an accident; or
(c) Has died under circumstances raising a reasonable suspicion that some other person has
committed an offence;
(d) Is missing or believed to be dead;

Shall give such information immediately to the nearest magistrate empowered to hold inquests.
They are additionally required unless otherwise directed by any rule made by the Minister, to
proceed to the place where the body is and
They are expected to investigate and then draw up a report on the apparent cause of death

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describing such wounds fractures, bruises and other marks of injury as may be found on the
body and stating in what manner or by what weapon or instruments (if any) the marks appear to
have been inflicted. This is based on the opinion of the person visiting the scene. That report is
made based on the evidence compiled by officers specially trained on scenes of crime and
forensic issues.
Where the police officers are not able to establish the course of death at the scene Section 386(2)
of the CPC provides that where he considers it expedient the police officer shall, subject to any
rule made by the Minister forward the body, to a medical officer for examination, ensuring that
transportation of the body shall not render examination useless. The manner in which the body
is transported may interfere with the evidence and thus importance to preserve body as it is.

The pathologists are required to make a report on the cause of death based on the evidence that
they find. They will perform a post-mortem. The report is then forwarded to the magistrate,
empowered to hold an inquest.
In the case of a person who is missing and believed to be dead, the report is to be sent to the AG
through the Commissioner of Police detailing all supporting evidence and the grounds upon
which the death of that person is presumed to have taken place – this report must of necessity
take into account the duration for presumption of death i.e. 7 years duration where the person
has not been seen or heard of by family friends etc.

Where there are fatal tragedies i.e. the Mtongwe Ferry, the KQ, duration may be shortened since
the cause of death is known and it is only bodies that have not been traced. We use the same
process. Subsection 3 obligates any person who finds or is aware of a body of a body of a person
believed to have committed suicide or has been killed by another or by accident to make a report
immediately to the nearest administrative or police officer.
Section 387 makes special provisions where a person dies in the custody of the police or a prison
officer, or in prison, in such cases a magistrate empowered to hold an inquest may hold an
inquiry into the cause of death either instead of or in addition to the investigations held by the
police or prison officer. The process of finding out the cause of death must be transparent and
hence the need for an inquest.

While conducting inquests magistrates have powers to examine a body that has already been
interred; or to cause a body to be disinterred and examined. Where family are concerned that
evidence has come out that is circumstantial and they need to know with certainty the cause of
death.

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Inquests commenced by way of police placing files before the court with all the evidence
available to them the files are then perused by a magistrate to determine whether or not an
inquest should be held and invariably inquests are recommended. Where the cause of death is
known and is clear from the files and the persons who committed the violence are known there is
no point in holding an inquest.
The case is then set down for hearing and at the hearing the prosecution will usually lead the
evidence. In Kenya we do not have the coroner system and so inquests are not conducted by a
coroner. One of the weaknesses of having prosecutors is that they prosecute cases on a daily
basis and they may make the inquiry a mundane process.

At the hearing the prosecution will indicate all the witnesses that they have, and these witnesses
may include suspects – the reason being that an inquest is similar to an inquiry and therefore at
this stage the prosecution may not have gathered sufficient evidence to warrant the prosecution
of a specific individual. The practice is for the family of the deceased to hire advocates who work
closely with the prosecution but have the right to cross examine witnesses persons also allowed
legal representation who may be adversely mentioned are allowed legal representation with a
right to cross examination.
Since the aim of an inquest is to try and establish the truth as well as seeking information; there is
more latitude given to the prosecution in leading the witnesses, a lot of hearsay for example may
be adduced and allowed. For this reason; witnesses and new evidence that may not have been
available prior to the commencement of the inquest may be called as the inquest progresses. In
an inquest as the case proceeds, more and more evidence is adduced and investigations continue
because at the initial stage one may not have all the witnesses having been interviewed and
anybody adversely mentioned would like to interrogate the issues that arise.
Since the aim of an inquest is to try and establish the truth as well as seeking information; there is
more latitude to the prosecution in leading the witnesses. For this reason; witnesses and new
evidence that may have been available prior to the commencement of the inquest may be called
as the inquest progresses.

Section 387(3) provides that where before or at the termination… Where the person attends court
and the inquest has already commenced, then the magistrate shall commence do novo by way of
trial – if in the middle of the inquest the magistrate decides the offence has been committed by a
known person, the person will be arrested and there will be a new trial. It may not mean that the
person has committed murder; it could be even a traffic offence so the circumstances and
evidence will direct the magistrate as to what is the best offence to be preferred against the

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person.
Where the inquest has not commenced i.e. where the magistrate forms such an opinion at the
stage of perusing the police file then they will not proceed with inquest but institute the process
of such persons standing for trial. Where the magistrate forms the opinion that an offence has
been committed by some unknown person he shall record his opinion and send a copy of the
opinion to the AG.

Where the magistrate forms the opinion that death has occurred but no offence has been omitted
or that it has occurred through misadventure, then the magistrate shall record such an opinion
accordingly.
With regard to inquiries relating to missing persons believed to be dead, the magistrate at the
termination shall report the case together with his findings to the attorney general, including
recommendations whether or not the person regarding presumption of death under Section
118A of the Evidence Act should; be reduced and if so by what period. The 7 years should be
substituted; considering the circumstances of the specific case.

Thereafter the AG after considering the opinion from the magistrates shall refer the matter back
with a direction on the period of substitution and that an order be made by the magistrate
accordingly in the court file; and upon expiration of such substituted period the Registrar
General shall be empowered upon production of such order by the officer entitled to apply for
and receive a grant of representation under the Law of Succession Act to issue such person with
an appropriate certificate of death in accordance with the Births and Death Registration Act.

Under Section 388(1) CPC the AG has powers to direct a magistrate to hold an inquest in
accordance with section 387 of the CPC. Section 388(2) – CPC provides that where a magistrate
terminates an inquest under Section 387; the Attorney General where he considers that there is
need for further investigations may direct the magistrate to reopen the inquiry and further
investigations are then began, in which case the magistrate shall have full powers to reopen the
inquiry and make further investigations and proceed in same manner as if the inquiry had not
been terminated. For example in Julie Ward the case was re-opened and people charged, another
inquest still went on. As long as the truth has not been established one can continue to
investigate.

The Attorney General may also direct whether there is need for the body to be disinterred and
examined. These provisions do not apply where the magistrate has made a finding hat a person

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has committed the offences of murder or manslaughter.
Where the inquiry is terminated and the AG is of the view that further investigations are
required, the A.G. may direct the court to reopen the inquiry, except where the offence of murder
or manslaughter is preferred.
When the court makes its decision as to the outcome of the inquest, where one is missing or
presumed dead, the AG may upon the expiry of the requisite period empower the Registrar
General to facilitate law of succession proceedings and issuance of death certificate.
The High Court has power to quash an inquest verdict and compel the Attorney General to
reopen an inquest.
The High Court may quash the inquest verdict or revise it.

14. EXTRADITION(look at the ATP handout)

15. HABEAS CORPUS

INTRODUCTION
The writ of habeas corpus consists of a mandatory order by the court or judge directed to any
person who is alleged to have another person unlawfully in his custody, requiring him to have
the body of such person before the court or judge immediately after receipt of the writ together
with the day and cause of his being taken and detained, to undergo and receive all such things as
the court may order.

TYPES
1. Habeas corpus ad subjiciendum – secures liberty
2. Habeas corpus ad testificandum – secures attendance of a prisoner in custody under civil
process to give evidence before any court, tribunal, commission, etc.
3. Habeas corpus ad respondendum – secures attendance of a prisoner in custody under
serving prison sentence to give evidence before any court, tribunal, commission, etc.
4. Habeas corpus ad deliberandum – removal of prisoners from one custody to another (now
obsolete).
5. Habeas corpus ad satisfaciendum – obsolete
6. Habeas corpus ad prosequendum – obsolete
7. Habeas corpus ad faciendum et recipiendum also known as Habeas corupus cum causa
- obsolete

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OBJECTIVES
- Secure liberty of the subject. It is a remedy for wrongful depreciation of liberty
- An effective means of immediate release from unlawful and unjustifiable deprivation of
liberty.
- The High Court commands the production of the subject and inquires into the cause of
deprivation of liberty imprisonment
- Lack of lawful reason for detention will lead the court to order release of the subject.
- The remedy exists both at common law and statute.
- Remedy available in criminal and civil cases.

CONSTITUTIONAL PROVISION
- The right to liberty under the repealed Constitution of Kenya was secured under Section 72
of the Constitution of Kenya. The Constitution of Kenya 2010 guarantees the right to freedom
and security under Article 29. 169

An arrested person under Article 49(h) of the Constitution has the right to be brought before
a court as soon as reasonably possible, but not later than–
(i) twenty-four hours after being arrested; or
(ii) if the twenty-four hours ends outside ordinary court hours, or on a day that is not
an ordinary court day, the end of the next court day;

- In cases where suspects have not been taken to court within the stipulated time and the
police or prosecuting authorities do not prove that they have taken suspects to court within a
reasonably practicable time as stipulated in the Constitution, the Court of Appeal has held
such violations to be unacceptable and capable of violating the right to be tried within a
reasonable time. As a consequence of such violation, the Court of Appeal has quashed
convictions on the basis of such violations alone irrespective of the evidence available and the
gravity of the crime. (See cases of: -)
(i) Albanus Mwasia Mutua versus Republic Criminal Appeal No. 120 of 2004 (CA)
(ii) Gerald Macharia Githuku versus Republic Criminal Appeal No. 119 of 2004 (CA)
(iii) Ronald Manyonge Chepkui versus Republc Criminal Appeal No. 87 of 2006 (HC)

169
Article 29 provides, Every person has the right to freedom and security of the
person, which includes the right not to be :- (a) deprived of freedom arbitrarily or without just cause;
(b) detained without trial, except during a state of emergency,
in which case the detention is subject to Article 58;

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- In a more interesting development of jurisprudence, the High Court has terminated
prosecution and ordered release of suspects whose rights to be taken to court within the
stipulated time have been violated. (See the cases of: -)
(i) Republic versus James Njuguna Nyaga Criminal Case No. 40 of 2007 (HC)
(ii) Ann Njogu & 5 others versus Republic Misc. Criminal App. No. 551 of 2007 (HC)
- These developments indicate the preparedness of the courts to offer supplemental remedies
to the old writ of Habeas Corpus.
- It is now a matter for legal practitioners to elect what remedy to pursue in the event that their
clients’ liberty is deprived or threatened with deprivation. Every set of circumstances will
dictate the most efficacious remedy.

- Harbeas corpus now enjoys special constitutional protection by reason of Article 25(d) and
51(2) of the Constitution.

Article 25 of the Constitution of Kenya 2010

Despite any other provision in this Constitution, the following rights and fundamental freedoms
shall not be limited:-
(a) Freedom from torture and cruel, inhuman or degrading treatment or
punishment;
(b) Freedom from slavery or servitude;
(c) The right to a fair trial; and
(d) The right to an order of habeas corpus.
51. (1) A person who is detained, held in custody or imprisoned under the law, retains all the
rights and fundamental freedoms in the Bill of Rights, except to the extent that any particular
right or a fundamental freedom is clearly incompatible with the fact that the person is detained,
held in custody or imprisoned.
(2) A person who is detained or held in custody is entitled to petition for an order of habeas
corpus.

PROCEDURE
Criminal Procedure Code
- Section 389 gives the statutory authority for issuance of various types of Habeas Corpus.
- The Chief Justice has made rules of court to regulate procedure.

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- The Rules are known as the Criminal Procedure (Directions in the nature of Habeas Corpus)
Rules.
- Applications are brought under Chamber Summons (in triplicate) and made to a judge in
chambers ex-parte. The Chamber Summons are supported by affidavit(s).
- At the ex-parte stage, court issues summons to the authority detaining the subject and that
authority is required to show cause why detainee should not be released forthwith.

- Pending return of summons, detainee may be released on bail by the court.

- Habeas Corpus ad testificandum provided for under Rule 10 and the procedure is the same as
where a subject is deprived of liberty.
- Habeas corpus ad deliberandum provided for under Rule 11.
- The application for the writ of habeas corpus can be brought by the subject or his relation or
friend.

16. SUMMONS
Criminal proceedings begin in a magistrates’ court either because an accused has been charged
with an offence or because he has been summoned to appear before the court.
A summons is a prescribed document from court that describes an offence in ordinary language.
A summons is issued to ensure attendance in court, if not complied with, then in the absence of
any explanation or information to the court on why the summons are not complied with, the
court issues a warrant of arrest
Section 90 of the Criminal Procedure Code (CPC) mandates that once the magistrate receives a
complaint and signs the charge, then the court may issue summons or warrant to compel
attendance of the suspect in court.

Section 91 CPC provides that summons shall issue from the court and be in writing, in duplicate,
signed and sealed by the presiding officer or other officer as the High Court may prescribe.
Every summons shall be directed to the person summoned and require him to appear at a time
and place as directed by the court and shall state briefly the offence preferred.

Section 92 CPC indicates that summons shall be served by a Police officer, an officer of the court
(Process server) or any other person the court may appoint. The service of summons shall if
practicable be personal. Upon service, the receiver of summons shall sign receipt on the

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duplicate.

Section 93 CPC allows service of summons, where the person cannot be found, on the on adult
member of his family, or servant or employer.

Section 94 CPC allows service by affixing the summons on some conspicuous part of the house.
Section 95 CPC directs that Government employees may be served summons through the head
of office.
Section 97 CPC a company is served through the local manager or principal officer of the
Company.
Section 98 CPC mandates the serving officer to confirm service in court. If he is not in an
affidavit of service was done will be placed before the court.
Summons is issued by courts to compel appearance in court of suspects, witness (S144 CPC) and
or sureties.
The court can dispense with the suspect’s attendance in court if there is reason to do so and if the
suspect’s alleged offence is not a felony and attracts 3months imprisonment or fine if he pleads
guilty or his advocate attend court on his behalf.

SEARCH WARRANTS
A search warrant is an authority to search for evidence of a crime believed to be committed or to
make an arrest of a suspected criminal.
A warrant shall be under the hand of the court issuing it and shall bear the seal of the court. The
warrant shall briefly state the preferred offence.
A search warrant is directed to a particular Police officer (s) or generally officers in a specific area.
The Court upon application issues a search warrant to facilitate investigations where a formal
complaint is made.

Section 19 of the Police Act Cap 84 gives the Police power to lay complaints and apply for
warrants before a magistrate.
Section 118 CPC directs that if it is proved on oath to the court that something in respect of
which an offence has been committed or anything necessary for the conduct of an investigation
into an offence is reasonably suspected to be , in any place, building, ship ,aircraft, vehicle, box,
receptacle, the court may by written warrant authorize a police officer to search the said place for
the specified item(s) and once seized ,take the item to court.
A search warrant maybe issued and executed any day including Sunday between sun rise and

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sunset unless the court expressly authorizes specific time.
Where the building to be searched is locked, demand by the Police officer executing the search
warrant, and upon producing the warrant he should be allowed access.
If no access is allowed, then a break in of the building to conduct the search is allowed.
The search warrant ought to be specific in terms of what is sought by the search and that is what
should be confiscated only. The seizure of irrelevant items is legally unjustified.

Reference: MOHANLAL TRIVEDI VS R

The search warrant was for a camera and Police found and took away an exposure meter. It was
difficult to prove that the meter was recovered during the search authorized by the warrant as
the item was not the one indicated in the warrant.

SEARCHES WITHOUT A WARRANT

A Police Officer who seeks to arrest a suspect is authorized to search the place entered by person
sought to be arrested.
A police Officer is authorized to stop search and detain an aircraft, vessel, vehicle and person
when there is reason to suspect that anything stolen or unlawfully obtained maybe found (S22&
26CPC)

Reference: Kityo Vs Uganda

The appellant was charged with being in possession of motor vehicle parts suspected of being
stolen. The appellant was stopped by a police officer as he drove the Morris Minor on suspicion
of how he moved around Kampala. The vehicle was searched and stolen items were found fitted
to the car. Earlier, following a Police alert, the movements of the vehicle were under surveillance.
It was noted that everywhere the vehicle went there was theft of Morris Minor vehicles. The
appellant was charged and convicted. On appeal it was argued that he was not stopped on
reasonable and specific suspicion. The court held; it is not necessary at the time one is stopped
and searched that the police officer has the precise suspicion of any thing stolen so long as there
are circumstances for suspicion.
Reference: Royal Media vs Telkom Kenya
It was held that there is no justification for the Police or Defendant to carry away after the search
more than is necessary.
Conclusion: Searches should be based on reasonable grounds of suspicion of commission of a
serious offence. The search should only entail the specific items related to the suspicion and
seizure should be of relevant items to the case.

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 17. PROCEDURES IN SPECIAL COURTS
• Children’s court

• Anti-corruption court

• Municipal court

• Courts-Martial

A. CHILDREN’S COURT
CHILD OFFENDERS: TRIAL PROCESS & RIGHTS
THE LAW
The laws applicable to Child Rights and Children’s court trial process are;
• The Children’s Act Number 8 of 2001 came into force in March 2002
• The Children (Adoption) Regulations, 2005
• The Children Offender Rules (Subsidiary legislation)

The new laws repealed

• The Adoption Act
• The Children & Young Persons Act
• Guardianship of Infants Act
The new law makes special provisions pertaining to children in the Criminal Justice System. The
Children Act gives effect to;
• UN Convention on the Rights of the Child &
• African Charter on the Rights and Welfare of the child.

DEFINITIONS
The Act defines a child as “any human being under the age of eighteen years”
A child of tender years is defined as “a child under the age of ten years” (S.2).

RIGHTS
Part 2 of the Act provides safeguards for the rights and welfare of the child. The Government
shall take steps to the maximum of its available resources to provide;
• Right to life, survival ad development
• Right to name and nationality
• Right to non discrimination
• Right to parental care

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 • Right to education
• Right to religious education
• Right to health care
• Right to privacy
• Right to leisure & recreation
• Protection from child labor & armed conflict
• Protection from abuse, harmful cultural rites, sexual exploitation, torture and deprivation
of liberty
The Act prescribes the rights of a child in a trial where he/she is charged with violation of any
law as guaranteed in the following rights; (S 186)
• To be informed directly and promptly of the charges against him or her;
• To be provided by the Government with assistance in the preparation and presentation
of his or her defense if he or she is unable to obtain legal assistance; (S 77)
• To be appointed a guardian ad litem (S 79)
• To have the case determined without delay;
• Not to be compelled to testify or to confess guilt;
• To have free assistance of an interpreter where the child cannot understand the language
of the Court;
• To have his or her case reviewed by a higher Court, if found guilty; (S 80)
• To have his or her privacy fully respected during the proceedings; (S 76 (5 & 6))
• To be afforded special care and be treated with the same dignity as a child with no
disability, if disabled.

THE FORUM
Part VI of the Act sets up special Courts known as Children’s Courts inter alia to try charges
against a child (other than a charge of murder or a charge in which a child is charged jointly with
a person of or above the age of 18 years) as well as charges against any person accused of an
offence under the Act (S.73 and S. 184).
The Magistrates presiding over those Courts are appointed by the Chief Justice to adjudicate
disputes regarding children. The Court sits in a different building or room or at different times
from the other Courts and during the proceedings where children have violated the law. The
only people allowed in the proceedings held in camera are members and officers of the Court,
parties to the case, their advocates and witnesses, parents or guardians of any child, bona fide
registered representatives of newspapers and news agencies (S 74) (Although they have access to
the proceedings, what is reported about the case is restricted) and such other people as the Court

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may specially authorize (S 74). The Act specifically requires the Court to have a setting friendly to
the Child offender and prohibits the use of the terms “conviction” and “sentence” in respect of
child offenders (S.189).

THE TRIAL
• The enforcement of child rights and child offenders’ trials are held in the Children’s Court.
• The Children’s Court may try a child for any offence except for;
• The offence of murder
• An offence with which a child is charged together with a person or persons of or
above the age of 18 years (S184)
• Children’s cases are supposed to be handled expeditiously and without unnecessary delay.
• If the case is not completed within 3 months from the date of plea, it is to be dismissed and the
child is not liable for further proceedings regarding the same offence.
• If the child’s case, on account of seriousness is heard by a Court superior to the Children’s
Court, it shall be determined within 12 months after the taking of plea, failing which it shall be
dismissed and the child is not liable for further proceedings regarding the same offence.

ARREST & BAIL /BOND TERMS

Where a child is apprehended for suspicion of having committed a criminal offence, he or she is
to be brought before the Court as soon as practicable and is not to be held in custody for more
than 24 hours without the leave of the Court. (S4 Child Offenders’ Rules). The Child’s parent is to
attend proceedings or court to appoint a guardian. (S8 Child offenders Rules).
If a child is held in police custody, the OCS shall as soon as practicable inform the parents or
guardians or the Director of Children’s Services and ensure the presence of the parent, guardian
or advocate at any police interview with the child.
Where a child is arrested and cannot be brought to Court forthwith, the police are required to
release the child on a recognizance entered into by the parent or guardian or other responsible
person, with or without sureties.
This right to bail is not available if the charge against the child is one of murder or manslaughter
or other grave crime or if it is necessary to stop the child associating with undesirable persons or
if there is reason to believe that release would defeat the ends of justice. (S 6 of the Child offender
rules). The Court may admit the child to bail on such terms as it deems necessary and may order
a parent or guardian to give security for the child’s good behavior (S.193 (2)).
A child denied bail has to have the reasons recorded and has to be informed of the right to apply
for bail in the High Court.

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When a child is not granted bail, he or she may be remanded in custody in a children’s remand
home and if there is none within a reasonable distance from the Court, the Court is to make such
order as to the child’s safe custody as it deems fit, which shall exclude a remand home or prison
where adults are held. The Court is required to explore other alternatives to remand such as close
supervision or placement with a counselor or a fit person on the recommendation of probation or
children’s officer.

HEARING
The remand in custody is not to exceed 6 months in the case of an offence punishable by death or
3 months in any other case. (S 10 (4) Child offender Rules)
If the child’s case, on account of seriousness is heard by a Court superior to the Children’s Court,
the maximum remand period is 6 months after which the child is to be admitted to bail.
S. 18 (4) requires the Government to accord legal and other assistance to a child who is arrested
and detained.
A child witness/ offender will testify after the court conducts the voire dire to determine;
• Whether the child understands the nature of the oath
• Whether the child is possessed of sufficient knowledge to justify reception of evidence
If the court finds the child understands the nature and importance of the oath, then under section
19 of the Oaths and Statutory Declarations Act (Cap 15) the child may take oath and testify in
court.
In proceedings against or by a child for an offence on decency or morality and a witness under
the age of 18 years of age is called, the court may exclude al other persons except parties to
proceedings and officers of the court. (S76 (5))
In proceedings concerning a child, its name, identity, home or last place of residence or school or
its parents or relatives, photographs shall not be published or revealed in any publication or
report, including any law report. (S. 76 (5))
Every court in dealing with a child, shall have regard to the best interests of the child……if in
remand and is ill, or complains of illness, the court should order prompt examination and
medical care by a qualified medical practitioner. (S.187)
No child shall be ordered to imprisonment or to be placed in a detention camp.
No child shall be sentenced to death.
No child under the age of 10 years shall be ordered to be sent to a rehabilitation school. (S.190)

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METHODS OF DEALING WITH OFFENDERS: (S 191)
In spite of any other provisions of the law and subject to the Children’s Act, where a child tried
and found in violation of the law, the court may deal with him/her in any of the following ways;
• Discharging the offender under section 35 (1) of the Penal Code
• By discharging the offender on his entering into recognizance, with or without sureties
• By making a probation order under the Probation of Offenders Act
• By committing the offender to the care of a fit person, relative or not or charitable
institution
• If offender is above 10 years- 15years of age, ordering him to be sent to rehabilitation
centre.
• By ordering the offender to pay a fine, compensation or costs, any or all of them
• If the offender has attained 16 years of age, the court may send him/her to a borstal
institution.
• By placing the offender under the care of a qualified counselor
• By ordering him to be placed in an educational institution or vocational training program
• By ordering him to be placed in a probation hostel under the probation of Offenders’ Act
• By making a Community service order, or
• Any other lawful manner.

Proceedings in respect of a child shall be conducted in accordance with the rules set out in the
Fifth Schedule (S. 194) Child Offender Rules.

B. COURTS MARTIAL
Court Martial’s are convened by a convening order. That is, when there is need to deal with an
issue. There therefore is no permanent structure. It has been established for by Statue in S.65 of
the Constitution under the Armed Forces Act.
Court martial court may be established by the Chief of General Staff or by the Commander. S. 85
of the Armed Forces Act provides that a court martial shall have powers to try any person subject
to the Act for any offence which under the Act is triable by a court martial and to award for such
offence any punishment provided by the Act.
S. 84 of the Armed Forces Act, provides for a military court for disciplining armed forces that
include the members of the Army, Air Force, the Navy and their reserves but does not apply to
the Police Force. It is subject to the law of the land first then the court marshal court.

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The Court marshal court exercises limited criminal jurisdiction, under only one type of law –
military law. Jurisdiction is wholly penal or disciplinary and is designed to ensure discipline in
the armed forces.
S. 86 of the Armed Forces Act states the composition of court marshal court. It is preceded over,
and not below rank of Major, senior commissioned officer with two other members of the armed
forces, who are peers of the same position as the defendant.
If you are trying a commissioned officer with a death penalty composition, four members and a
preceding officer precedes over the matter. The members are according to the rank of the accused
person and the decision is made by a majority vote.
The cases which are triable in this court include insubordination, cowardice, fraud, theft, aiding
the enemy and neglect of duty.
There is no right to appeal to the High Court against decisions of the court martial unless a case
involves a constitutional question. When a person is convicted by a court martial, he may with
the leave of the High Court appeal to the High Court against conviction or against the sentence or
against both. This must be lodged within 40 days of the order or sentence of the Court Martial.
The appeal is final and not subject to further appeal (s.115). S. 120 allows the High Court to
appoint assessors with expert knowledge to assist in determining appeals on merit.
S. 89 provides for the appointment of judge advocates with the Attorney General’s written
consent. S. 26(3) bars the Attorney General from exercising control over prosecutions in court
martial’s. The role of the judge advocate is advisory on legal issues that arise during the trial.
S. 123, if on the other hand there is an acquittal the Attorney General is given a right of appeal
against the decision within 40 days. This allows the Attorney General to appear for the
respondent.
C. TRIBUNALS
Some institutions are created to assist the courts in administration of justice so as not to
overburden the courts. Some matters may not require experts in law and may be costly, hence the
establishments of some institutions. Tribunals are such institutions that have been created.
However they have no penal jurisdiction. Examples of tribunals include:
• Administration tribunals – they are set up by statute to decide disputes that arise out of
the statutes creating them. They deal with the administration and enforcement of the Act
concerned. For example, the Rent Tribunal (based in Agriculture House), specifically
meant for the determination of questions arising out of the Administration and Rent
Restriction Act; Business Rent Tribunal (based at View Park Towers), deals with leases
under 5 years

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 • Inquiry Tribunals – it is a full scale inquiry that deals with matters that are urgent and of
public importance, for example, the dissolution of Parliament. It may be set up to
investigate corruption, mishandling of issues and improper conduct of public officers.
Justifications for setting up such a tribunal may be the feeling that courts may not be in a
position to investigate matters adequately or may have profound economic implications.
• Domestic Tribunals – was set up by private organizations for administration purposes,
settling of disputes, exercising disciplinary control of members of the organization,
example, a professional body. Jurisdiction is therefore contractual and limited by rules or
regulations which comprise the terms of the contract.

END

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