KENYA SCHOOL OF LAW

(2022/2023 Academic Year)

CRIMINAL LITIGATION ( ATP 101)

COURSE OUTLINE (All Classes)

Course Instructors:
Rosemelle Mutoka Email address: mutokarosemelle@gmail.com; mutokarosemelle@ksl.ac.ke
Simiyu Murambi Email address:simiyu@ksl.ac.ke
Gad Gathu Email address: ggathu@ksl.ac.ke
Instruction hours: Class A – Monday 11:00am – 1:00 pm;
Class B – Thursday 11:00am – 01:00pm;
Class C – Wednesday 11:00am – 1:00pm;
Class D – Monday 4:00am – 11:00am;
Class E- Tuesday 4.00 pm-6.00 pm;
Class F- Wednesday 2.00 pm-4.00pm;
Class G- Monday 6.00 pm-8.00 pm.

Consultation: On appointment.
Guest Lectures: To be organized and communicated by Course Instructors.

INTRODUCTION

Criminal litigation deals with procedural aspects of the application of Criminal Law. The basic Act of Parliament that

sets out provisions to be followed in criminal litigation is the Criminal Procedure Code, Chapter 75 of the Laws of

Kenya.

All students are encouraged to read the requirements of the course outline and beyond its confines and also be

conversant with the Constitution, basic principles of Criminal Liability, contents of the Penal Code (Chapter 63 of the

Laws of Kenya) and the Evidence Act (Chapter 80 Laws of Kenya). Course content will integrate and emphasis the

new constitutional order promulgated on 27 August 2010. In the meantime relevant legislation will continue forming

part of reference with necessary modifications in keeping with the new constitutional order. Instructions will be

dynamic in keeping with developments in the law.

PURPOSE OF THE SUBJECT

The Purpose of the subject is to equip learners with knowledge and skills in the criminal process and
procedure.

EXPECTED LEARNING OUTCOMES

By the end of the subject, the learner should be able to:-

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 i. Draft documents relevant in criminal litigation.

ii. Identify various jurisdictions in criminal litigation;

iii. Apply substantive and procedural law relating to criminal trials;

iv. Demonstrate case management skills in criminal litigation.

CORE READING MATERIALS

i. Judiciary Criminal Procedure Bench Book, 2018;

ii. Patrick Kiage, (2011). Essentials of Criminal Procedure in Kenya. Nairobi:Law Africa Publishing (K)
Ltd.

iii. Prof. PLO Lumumba, (2005). A Handbook on Criminal Procedure in Kenya. Nairobi, Kenya: LawAfrica
Publishers Limited.

iv. Charles Mwaura Kamau, Basic Principles of Criminal Litigation in Kenya. The Quick Law Series Book 1.

RECOMMENDED REFERENCE MATERIALS

i. Archibald on Criminal Pleading, Evidence and Practice, 37th edition by Butler & Garcia;
ii. Allen Waiyaki Gichuhi , (2017). Litigation: The Art of Strategy and Practice. Nairobi: LawAfrica
Publishing (K) Ltd.

STATUTES

1. The Criminal Procedure Code [Cap. 75 of the Laws of Kenya] Government Printer, Nairobi;

2. The Penal Code [Cap. 63 of the Laws of Kenya] Government Printer, Nairobi;

3. The Evidence Act [Cap. 80 of the Laws of Kenya] Government Printer, Nairobi;

4. Sexual Offences Act 2006 Government Printer, Nairobi;

5. The ODPP Act No.2 of 2013

6. International Crimes Act 2008 Government Printer, Nairobi;

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8. The Victim Protection Act No. 17 of 2014.

E-RESOURCES

i. Ebrary;

ii. Lexis Nexis;

iii. Emerald;

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 iv. Access Law Africa;

v. Jstor;

vi. University of Chicago;

vii. Springer;

viii. Taylor and Francis;

ix. World e-library;

x. Mary Ann Liebert Publishers.

EVALUATION
1. Coursework- Term One 20%
2. Oral examination- Term Two 20%
3. Written examination- Term Three 60%
100%

1. INTRODUCTION (Week One)

● Criminal Litigation Content
● Overview of Criminal Law principles

2. JURISDICTION AND STRUCTURE OF COURTS (Week Two and Three)

● Magistrates’ courts and tribunals;
● High Court;
● Court of Appeal;
● Supreme Court;
● International Criminal Court.
3. ARRESTS (Week Four and Five)
● Arrest without warrant.
● Arrest with warrant.
4. IDENTIFICATION PARADES (Week Six and Seven)
● What are identification parades?
● Conduct of the ID parades;
● Production of ID parade evidence.
5. PREPARATION OF FILES FOR TRIAL (Week Eight and Nine)
● Contents of the Police/Prosecution file;
● Contents of the Advocates file;
● Contents of the Court file.
6. COMPLAINT AND CHARGE (Week Ten, Eleven and Twelve)
Methods and Rules of framing charges
● Defects in drafting charges: Duplicity &Lack of Ingredients;
● Capital charges;
● Alternative charges;
● Conspiracy;

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 ● Attempts;
● Joinder of persons;
● Joinder of counts;
● Amendment of charges;
● Motion to quash( application to dismiss)

7. PLEA AND PLEA BARGAIN (Week Thirteen and Fourteen)

● Introduction: The Nature of a plea.

● Equivocal and unequivocal plea
● Plea agreements
● Change of plea
● Autrefois acquit
● Autrefois convict
● Pardon
● Plea bargain
8. BAIL AND BOND (Week Fifteen and Sixteen)
(a) Bail
- Police bond;
- Anticipatory bail;
- Bail pending or during trial;
- Bail pending appeal.
(b) Sureties and Discharge of sureties;
(c) Forfeitures/Non compliance with bail terms;
(d) Recognizance.

PROCESS OF BAIL/ BOND

● Securities;
● Verification process;
● Sureties and Discharge of sureties;
● Forfeitures/Non compliance with bail terms.

9. PRE-TRIAL CONFERENCING (Week Seventeen and Eighteen)

● Meeting accused person before arraignment;
● Advocate-prosecution communication;
● Recording of witness statements;
● Application for witness statement;
● Pre-Trial Management.

10. TRIAL PROCESS AND MATTERS ARISING (Week Nineteen, Twenty and Twenty One)
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;

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 ● 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.

d) Interlocutory Applications
● Transfer of cases;
● Termination of charges;
● Amicus curiae;
● Watching brief.

11. Revision (Week Twenty Two and Twenty Three)

● Revision.

12. APPELLATE JURISDICTION (Week Twenty Four and Twenty

Five)

● 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.

13. SPECIALIZED PROSECUTORS (Week Twenty Six)

14. PRIVATE PROSECUTIONS (Week Twenty Seven)

15. INQUESTS (Week Twenty Eight)

16. EXTRADITION PROCEEDINGS (Week Twenty Nine)

17. MISCELLANEOUS APPLICATIONS:- freezing accounts, search and confiscation an summons.

(Week Thirty One)

18. HABEAS CORPUS (Week Thirty One)

19. JUDICIAL REVIEW (Week Thirty Two)

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20. PROCEDURES IN SPECIAL COURTS (Week Thirty Three)

● Children’s court;
● Anti-corruption court;
● Municipal court;
● Courts-Martial;
● Traffic Court

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