MARKING SCHEME NOVEMBER 2014

Question 1
A) i) Comment [S1]: Maximum of 4 marks for any of
Determination of eligibility for surrender the points
(1) If a person is brought before a High Court under this Part, the Court shall determine whether the person is eligible for surrender
in relation to the international crime or crimes for which surrender is sought.
The person is eligible for surrender if—
(2)
(b) the Court is satisfied that the person is the person to whom the warrant or judgment relates;

(3) Notwithstanding subsection (3), the person is not eligible for surrender if he satisfies the High Court that a mandatory restriction
on the surrender of the person specified in section 51(1) of the International Crimes Act applies.

(4). Surrender by consent

(1) A person may at any time notify the High Court that he consents to being surrendered to the ICC for the international
crime or crimes for which his surrender is sought.
(2) The Court may accept the notification of consent if—
(a) the person is before the Court when notification of the consent to surrender is given;
(b) the person has been legally represented in the proceedings; and
(c) the Court is satisfied that the person has freely consented to the surrender in full knowledge of its consequences.
(3) Nothing in this Part prevents a person, in respect of whom a determination of eligibility for surrender is made by the High
Court under section 39 of the International Crimes Act, from subsequently notifying the Minister that he consents to
surrender.
(4) A person arrested under a provisional warrant may consent to surrender before a request for surrender is received, in which
case—
(a) the Minister may make a surrender order as if a request for surrender had been received;

(5) The High Court shall—

(a) issue a warrant for the detention of the person in a prison or other place authorised in accordance with section 38 of the
International Crimes Act, pending the surrender of the person to the ICC or his discharge according to law;
(b) send to the Minister a copy of the warrant of detention and
such report on the case as the court thinks fit;
(c) inform the fugitive that—
(i) subject to section 65 of the ICCA, the person will not be surrendered until the expiration of fifteen days after the
date of the issue of the warrant;
(ii) during that time the person has the right to make an application
for a writ of habeas corpus; and
(iii) the person has the right to lodge an appeal under section 63 of the ICCA;
(d) inform a person to whom subsection (1) applies that the Minister is to
determine whether to issue a surrender order before the person can be
surrendered to the ICC; and
(e) inform the person that if a surrender order is made and the person is not removed within two months, the person may
apply to be discharged under section 69 of the ICCA.
(3) If the High Court issues a warrant under subsection (2), the Court may grant bail to the person in accordance with section
35 of the ICCA.
(4) If the High Court is not satisfied that the person is eligible for surrender, it shall discharge the person, unless under section
 69 it orders that the person continue to be detained or issues a warrant for the arrest and detention of the person, pending
the determination of an appeal under section 63.

6. Minister to determine whether person to be surrendered

(1) If the High Court issues a warrant for the detention of a person under section 42, the Minister shall determine whether to
order that the person be surrendered, giving reasons to the High Court for any refusal to order surrender.
(2) The Minister shall make a surrender order in respect of the person concerned unless—
(a) the Minister is satisfied that surrender of the person must be refused because a mandatory restriction on surrender
specified in section 51(1) applies;
(b) the Minister is satisfied that one of the discretionary restrictions on surrender
specified in section 51(2) applies and that it is appropriate in the circumstances that
surrender be refused;
(c) the Minister postpones the execution of a request for surrender in accordance with section 52; or
(d) the Minister makes a temporary surrender order under section 45.
(3) The Minister shall not make a surrender order in respect of a person until the later of the following times—
(a) until the expiration of fifteen days after the date of the issue of the warrant of detention of that person under section
42(2)(a); or
(b)

Before making a temporary surrender order, the Minister may seek undertakings from the ICC relating to one or more of the
following matters—
(a) the return of the person to Kenya;
(b) the custody of the person while travelling to and from and while in the ICC’s jurisdiction;
(c) such other matters, if any, that the Minister thinks
appropriate.

ii)
Procedure for Surrender under Extradition (Commonwealth Countries) Act Arrest of the fugitive
First, the request for extradition shall be made to the Attorney General who shall forthwith give written authority to commence
committal proceedings against the fugitive in writing. Apart from particulars of the fugitive and the facts and law relevant to the case,
the requesting country must also attach to the request, an overseas warrant issued in that country or a certificate of conviction and
sentence, and a statement of the amount, if any, of the sentence served, as the case may be.1 A magistrate may then proceed to issue a
warrant for the arrest of the fugitive.

However, a magistrate may also issue a provisional warrant of arrest without the authority to proceed from the Attorney General,
where the fugitive is, or is believed to be in or on his way to Kenya, having been satisfied that the circumstances and evidence would
merit issuance of the warrant in a similar offence against Kenyan law. In this case, the magistrate issuing the warrant is to give notice
to the Attorney-General and transmit to him all evidence and information upon which the warrant was issued, and the Attorney-
General may then issue an authority to proceed with committal proceedings or cancel the warrant and discharge the fugitive from
custody if he has been arrested under the warrant.

Proceedings for Committal

Upon arrest, the fugitive shall be arraigned in a Resident Magistrate’s Court. Where having received authority to proceed, the court is
satisfied that the evidence in support of the request for extradition shows that the offence is an extradition offence and would warrant
 trial if the offence had been committed in Kenya, or in the case of an allegation of being unlawfully at large after a conviction of the
offence, that the evidence shows he has been so convicted and appears to be so at large, the court may commit the fugitive to custody
to await surrender, or discharge him if not satisfied.

Where at the time of arraignment, the court is yet to receive the authority to proceed, it may set a reasonable time to be notified to the
Attorney-General, within which to await the authority to proceed, at the expiry of which, having not received such authority,the court
will discharge the fugitive.

Upon committal to custody, the court shall inform the fugitive of the right to make an application for habeas corpus2and he shall not
be surrendered until fifteen (15) days from the time of committal have expired, or while the application for habeas corpusis still
pending before the High Court.
Upon hearing the said application, the High Court may discharge the fugitive if it appears that it would be unjust or oppressive to
surrender him, since the extradition offence is trivial, much time has passed from the time of commission of the offence or
conviction, or, the accusation against him is not made in good faith in the interests of justice.

In fact, under Section 6 of the Act, a fugitive shall not be kept in custody, committed to custody or surrendered, if it appears,
a) that the offence the fugitive is accused or was convicted of is an offence of a political character, or
b) the request for his surrender, though on the face of it, is made on account of an extradition offence, it is in fact made for the
purpose of prosecuting him on account of his race, religion, nationality or political opinions, or
c) that he might, if surrendered, be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of
his race, religion, nationality or political opinions, or
d) if they were charged with a similar offence in Kenya, they would be entitled to a discharge following previous conviction or
acquittal on the same facts.

In addition, the requesting country must also have made provision in law or an arrangement, that the fugitive shall only be dealt with
in respect of the offences which he is surrendered, such lesser offence (s) proved by evidence brought before the Court of committal,
or, any other extradition offence the Attorney-General consents to. Comment [S2]: Maximum 4 marks for each
point mentioned.
B)
DATE: 19 November 2014

MINISTER IN-CHARGE OF LEGAL AFFAIRS

ZAMBIA
RE: REQUEST FOR ASSISTANCE IN EXTRADITION OF TUMUSIIME NAMIRIMU
I present my compliments to the competent authorities of the Republic of Zambia and I have the honour to request for assistance in
obtaining evidence for the purpose of a criminal investigation currently underway.

This request is made under the bilateral agreement signed by Kenya and Zambia and under Legal Notice 208/1972. The evidence
obtained as a result of this letter of request cannot be used, without your consent, for any other purpose than that specified in the
request.

AUTHORITY INITIATING THE REQUEST

The office of the Director of Public Prosecutions is seeking assistance touching on a criminal matter that was investigated by the CID
and is pending before the Court of Kenya and which evidence indicates the subject is currently domiciled in the Republic Of Zambia.
In this instance Tumusiime Namirimu is required in Kenya to answer to charges of two counts of robbery with violence Annexed are
the summons issued.
THE NEED FOR ASSISTANCE
This request of assistance is being made in the interest of justice. It will not be used for political, military and fiscal purposes in
Kenya. The information will also not be used to imprison or try the person for an offence other than the offence for which extradition
was granted and committed before extradition.

A BRIEF SYNOPSIS OF THE CASE

NATURE OF THE CASE

The action of Ms. Tumusiime Namirimu of Theft is in contravention of Section 275 of the Penal Code Cap. 63 of the Laws of the
Republic of Kenya.

DOCUMENTS IN SUPPORT OF THE REQUEST

We enclose the following documents in support of the request:

1. Charge Sheet.
2. Warrant of arrest.
3. Authentication certificate.

RECIPROCITY BETWEEN KENYA AND ZAMBIA

The Attorney General of the Republic of Kenya will be grateful for any assistance that the Competent Judicial and Administrative
Authorities of the Republic of Zambia can offer in response to this request as the criminal activities concerned have an adverse
bearing on the National understanding and security of Kenya.
The office of the Attorney General and the Kenya Police will assist in the investigation of any crime by the persons within the
jurisdiction of the Republic of Kenya in the spirit of Mutual Legal Assistance in the suppression of crime.

UNDERTAKING

We hereby undertake to abide by the terms and conditions of the governing legislation in the Republic of Zambia and Republic of
Kenya.

XXXXX
HIGH COMMISSIONER FOR KENYA TO ZAMBIA
FOR THE ATTORNEY GENERAL

CHARGE SHEET
Christian Names in Surname or Identity Sex Nationality Apparent Age Address(include
full or Name Father’s Certificate District and Location
Name No. where applicable)

TUMUSIIME NAMIRIMU F ADULT NAIROBI

N/A UGANDAN

CHARGE
THEFT CONTRARY TO SECTION 275 OF THE PENAL CODE,CAP 63 OF THE LAWS OF
COUNT I KENYA

PARTICULARS
OF OFFENCE TUMUSIIME NAMIRIMU: On the 19 day of November 2014 in Nairobi City County, stole xxx
bags of maize valued at Kshs.xxx the property of the government of the Republic of Kenya.
If Accused Date of Without or Date of Bond or Bail and Is Application made
Arrested Arrest with Apprehension Amount for Summons to Issue
Warrant Report to Court
No ------ ----- ---- ---- ----
Remanded or N/A
Adjourned
Complainant and REPUBLIC THROUGH C. I. D CENTRAL POLICE STATION
Address
Witnesses

Sentence
Court and date

…………………………………………………………
Officer in Charge

WARRANT IN FIRST INSTANCE FOR CRIMINAL

APPREHENSION OF ACCUSED

REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT NAIROBI
MISCELLANEOUS APPLICATION NO 700 OF 2014

REPUBLIC….……………………………………………………APPLICANT
TUMUSIIME NAMIRIMU……………………………………………….RESPONDENT
WARRANT OF ARREST
(Pursuant to the provisons of Section 5((1) of the Extradition(Contiguous and foreign Countries) Act Cap 76 Laws of Kenya and
Section 102 of the Criminal Procedure Code of Kenya Cap 75)
TO: The Inspector General of Police
P.O Box 5677-889
 Kenya
WHEREAS TUMUSIIME NAMIRIMU has this day been charged before this court for the offences of:
1. Theft contrary to section 275 of the Penal Code Cap. 63 Laws of Kenya.

THEREFORE you are hereby commanded forthwith to apprehend the said TUMUSIIME NAMIRIMU and to bring her before this
Court to answer to the said charge, and to be further dealt with according to Law.
DATED this……………………………..day of………………………….2014

……………………………………………..
CHIEF MAGISTRATE

AUTHENTICATION CERTIFICATE

… of the Republic of Kenya do hereby certify that the signature on the warrant of arrest is of TUMUSIIME NAMIRIMU and that all
documents attested and signed by her receive full faith and credence in Kenya.

GIVEN under my Seal of the Attorney General at Nairobi,

This……………….. day of….………………..………….2014

xxxxxxxxx,
ATTORNEY GENERAL,
REPUBLIC OF KENYA
QUESTION2

a)(i) Theft by Servant Contrary to Section 281 of the Penal Code; handling stolen property contrary to section 322(1) of the Penal
Code; Assault Contrary to Section 251 of the Penal Code; Comment [S3]: 1 mark for each offence that is
identified, maximum of 3 marks.
 ii) JOINDER OF COUNTS AND PERSONS
 its uniting of parties or claims in single action
 s.135 of cpc permits charging of offences together in the same charge sheet or information if the offences charged are
founded on same facts or form or are part of a series of offences of same or similar character
 in r. v dalip singh(1943)1eaca 121 appellant charged with theft.
 second count appellant charged with bribery and convicted
 held although the two offences were different in character they were founded
on same facts as evidence clearly demonstrated that bribe was offered after appellant’s arrest for theft
 in kamwan s/o mutia v r(1958)ea 471
 accused charged with theft, breaking and entering premises, stealing money and
possession of bhang-magistrate convicted accused of fourth charge as well
 on appeal, it was held 4th count should not have been included in the same charge sheet with three other dissimilar counts
 since injustice did not arise because of the improper trial of the other three counts the conviction was not disturbed
 similarly in r v muir (1938)2all er516 accused charged with 4 offences, two of rape of young girl on different occassions,
 stealing from girl’s father and indecent assault on a totally different person.
 held-indecent assault and other charges should not have been tried together
 however the impropriety did not cause injustice conviction upheld.

 s.136 permits following categories of persons to be joined in one charge &may be tried together
1. person accused of same offence committed in course of same transaction
2. persons accused of an offence and persons accused
of abetment or of an attempt to commit the offence
3 persons accused of different offences committed in the course of the same transaction
 a person is said to abet if it is demonstrated that he participated in the same transaction
and that he actively assisted in the continuance or completion of the offence
 malebe v r (1982)eklr 3 appellants were charged separately on separate counts in one charge sheet with offence of stealing by
servant c/s 281.
 particulars showed offences
committed on separate dates, items stolen were different.
 appellants not charged for having had a common intent
 held-joint charge against several persons for separate offences on different dates amounts to misjoinder
 the misjoinder occasioned
prejudice to the appellants because they did not know what charges were against them jointly or separately and when
committed.
 misjoinder occasioned a failure of justice and being an incurable defect, trial was a nullity
 joinder of persons
 in yakobo uma and another v r [1963] ea 542, 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 count. the allegations in the
particulars showed that the incident involving
 joinder of persons
 the 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 udo udoma cj ruled that the charge as laid
down was bad in law for misjoinder
Comment [S4]: Any of this points, maximum 3
marks
b) Statement of Offence: Theft by Servant Contrary to Section 281 of the Penal Code

Particulars of Offence: Ewang Nambo on 24 January 2014 at Nairobi within Nairobi County stole a cheque leaf the property of Karina
Korir and Company Advocates.

IN THE ALTERNATIVE
Statement of offence: Handling Stolen property contrary to Section 322(1) of the Penal Code

Particulars of Offence: Ewang Nambo and Colletta Gisecho on 24 January 2014 at Nairobi within Nairobi County jointly and
severally handled a stolen cheque leaf by retaining it knowing or having reason to believe the same to be stolen.

Statement of Offence: Assault causing actual bodily harm ontrary to Section 251 of the Penal Code

Particulars of Offence: Bruno Royford on 12 February 2014 along Mupe Road in Ongata Rongai Kajiado County assaulted one
Colletta Gisecho thereby occasioning him actual bodily harm. Comment [S5]: Each correct statement of
offence and particulars to earn 1 mark
QUESTION 3
a) Certiorari and Prohibition (2marks for each)
b) (i) STATEMENT OF FACTS
ITHE REPUBLIC OF KENYA
AT NAIROBI
HC. MISC. OF 2014
BETWEEN
OSINO ONYANGE………………..…………………………..……….APPLICANT Comment [AM6]: 1 MARK for capturing Osino as
AND the applicant
CABINET SECRETARY FOR INTERIOR AND COORDINATION OF
GOVERNMENT………………………………………………………….……….. 1 ST RESPONDENT
INSPECTOR GENERAL OF POLICE…………….………..……………………2 ND RESPONDENT
STATEMENT OF FACTS
(Under order LIII rule 1(2) of the Civil Procedure Rules and all enabling provisions of the law)

A. NAME AND DESCRIPTION OF THE APPLICANT

1. THE NAME OF THE APPLICANT IS (NAME AND DESCRIBE THE APPLICANT…THE APPLICANT’S
ADDRESS IS…)

B. RELIEFS SOUGHT

THE APPLICANT SEEKS:-

1. SPECIFY THE ORDERS OF JUDICIAL REVIEW SOUGHT(Certiorari and Prohibition)

C. THE GROUNDS UPON WHICH THE RELIEF(S) IS/ARE SOUGHT:-

1. SPECIFY THE GROUNDS UPON WHICH THE APPLICATION IS BASED Comment [S7]: 1 mark for each part correctly
DATED AT NAIROBI THIS …..DAY OF ……20... laid out. Maximum score of 5 marks

ADVOCATES FOR THE APPLICANTS

DRAWN & FILED BY:-
xxxxxx
NAIROBI

REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MISCELLANEOUS CIVIL APPLICATION NO. OF 2014

IN THE MATTER OF: THE LAW REFORM ACT CHAPTER 26 OF THE LAWS OF KENYA SECTIONS 8 AND 9
AND
IN THE MATTER OF: THE CONSTITUTION OF KENYA ARTICLES 23 AND 47
BETWEEN

REPUBLIC………………………………….………………………………. APPLICANT Comment [AM8]: 1 MARK

AND

CABINET SECRETARY FOR INTERIOR AND COORDINATION OF

GOVERNMENT………………………………………………………….……….. 1ST RESPONDENT
INSPECTOR GENERAL OF POLICE……………..……………………2ND RESPONDENT

EX PARTE OSINO OYANGE

 NOTICE OF MOTION Comment [AM9]: I MARK

(Under Articles 23 and 47 of the Constitution of Kenya, 2010, Order 53 rule 3(1) of the Civil Procedure Rules, Sections 8 and 9
of the Law Reform Act Cap. 26 and all enabling statutes and laws)

TAKE NOTICE that pursuant to leave granted on the …. this honourable court shall be moved on the ……………day
of………………….2015 at 9.00 O’clock in the morning or soon thereafter as shall be shown on the daily cause list, for the advocate
for the above named ex parte applicant will move the Court for:-

1. AN ORDER OF CERTIORARI to remove into this honorable court the 1 st

Respondent’s order to the 2nd Respondent dated 25 September 2014. Comment [AM10]: 2 MARKS
2. AN ORDER OF PROHIBITION directed at the 2nd Respondent prohibiting him from
implementing the 1st Respondent’s order dated 25 September 2014. Comment [AM11]: 2 MARKS
3. Costs of this application and the entire proceedings be awarded to the ex parte applicant.

WHICH APPLICATION is based on the grounds set out in the Statement filed in court, the Verifying Affidavit of Osino
Oyange dated …. and further and other grounds to be adduced at the hearing hereof.

DATED at NAIROBI this ….of ….. 2015

xxxxxxxxxxxxx
ADVOCATES FOR THE APPLICANT Comment [AM12]: 1 MARK

DRAWN & FILED BY:

Q4.
a) Three common mechanisms through which termination or discontinuation of criminal proceedings may be initiated (apart
from termination consequent upon conclusion of a case under S.215 CPC; or consequent upon a finding of no case to
answer under S.210 CPC; or consequent upon an order of prohibition) are:-

 Entry of Nolle Prosequi in any court by the DPP under S.82 of the CPC. A Nolle Prosequi can be entered either by
stating in court or by informing the court in writing that the Republic intends that the proceedings shall not continue.
[1 Mark]

 Withdrawal under S.87 of the CPC by a public prosecutor of a case before a subordinate court.
[1 Mark]

 Withdrawal by a complainant under S.204 of the CPC. [1 Mark]

b)
 A Nolle Prosequi under S.82(1) leads to a discharge if entered before the close of the prosecution case; and to an
acquittal if entered after the close of the prosecution case – see Art.157(7) of the Constitution. [1 Mark]

 Withdrawal either under S.87(a) or (b) leads to a discharge if made before the close of the prosecution case; and to an
acquittal if made after the close of the prosecution case – also see Art.157(7). [1
Mark]

 Withdrawal by a complainant under S.204 leads to an acquittal. [1 Mark]

NB: A discharge constitutes no bar to subsequent proceedings against the accused on account of the same facts;
while an acquittal constitutes a bar to subsequent proceedings on account of the same facts.

c) The omnibus instrument for use in terminating criminal proceedings in any court is a Nolle Prosequi. In the given scenario
it would take the following basic structure:

In the Chief Magistrates Court at Bura

Criminal Case No. 111 of 2013

Republic ................................................................Prosecutor/Applicant

Versus

Abunuasi Kichwangumu ........................................Accused/Respondent

NOLLE PROSEQUI

IN EXERCISE of the powers conferred on the Director of Public Prosecutions by Article 157(6) & (8) of the Constitution of
Kenya Section 25 of the Director of Public Prosecutions Act, No. 2 of 2013, Section 82 of the Criminal Procedure Code,
Cap. 75 and delegated to me by Article 157(9) of the Constitution, the prosecution hereby seeks to enter a Nolle Prosequi
and informs this Honourable Court that the Republic intends that the proceedings against the accused person who is charged
with the offence of stealing by servant, contrary to Section 281 of the Penal Code, Cap. 63 SHALL NOT continue on the
following principal grounds:-
1. The key witness Abdi Makengeza who testified-in-chief before the court died before being cross-examined.
2. The prosecution cannot find a replacement witness without causing further delay to the continuation of the trial.
3. The events necessitating temporary halting of the proceedings were beyond the control of the prosecution.
4. It is in the interests of justice that the Honourable Court grants the prosecution permission to enter a Nolle Prosequi
in the prevailing circumstances.

Dated at Moyale the 19th day of November, 2014

Signed
Justus Gurudumu
ASSISTANT DIRECTOR OF PUBLIC PROSECUTIONS [9 Marks]
Q. 5

a) Duplicity in relation to criminal charges simply means double; i.e. no one count of the charge should charge the
accused with having committed two or more separate offences. Duplicity is considered prejudicial to an accused person’s
right to a fair trial because it deprives the accused of an opportunity to know the precise offence he/she is accused of, which
undermines his/her capacity to defend himself/herself effectively. This violates his/her right under Article 50(2)(b) of the
Constitution to be informed of the charge with sufficient detail to answer it.
[5 Marks]

b) The necessary appeal documents to be filed in the High Court are Petition of Appeal under Section 350 CPC.
Unless the High Court otherwise directs, the Petition must be accompanied by a copy of the judgment or order appealed
against. In the given scenario there is no formal judgment written since the case was concluded through a purported plea of
guilty. Therefore the Petition is to be accompanied by a copy of the plea proceedings including the orders given thereat.

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KARUMAINDO

CRIMINAL APPEAL No. ....................OF 2014

DALMAS MKOSI ........................................................APPELANT

Versus

REPUBLIC ............................................................RESPONDENT

PETITION OF APPEAL

[Under Section 350 of the Criminal Procedure Code, Cap. 75 –

Being an appeal against conviction and sentence by Hon.
Ibrahim Kazamoyo, Resident Magistrate in Karumaindo Resident
Magistrate’s Court Criminal Case No. 144 of 2014, Republic –vs-
Dalmas Mkosi.]
The Appellant herein appeals against his conviction under Section 181(1)(a) of the Penal Code, Cap. 63 and
sentence of 5 years imprisonment plus 6 strokes of the cane on the following grounds, namely, that:-
1. The proceedings of 10th October, 2014 are incurably defective and a nullity on grounds of duplicity.
2. The Hon. Magistrate erred in fact and law by failing to explain the charge and every element of it to the Appellant to his
complete understanding as was his wish and right.
3. The Hon. Magistrate erred in fact and law by threatening the Appellant with dire consequences if he persisted in not
pleading to the charge, as a consequence of which threat the Appellant was forced to plead guilty.
4. The Hon. Magistrate erred in fact and law in purporting to find the Appellant guilty on his own purported voluntary plea
of guilty while he was intimidated into offering such plea.
5. The Hon. Magistrate erred in fact and law by not getting the prosecutor to narrate the salient facts of the case and to get
the Appellant to accept, deny or explain such facts before entering an appropriate plea.
6. The Hon. Magistrate erred in fact and law in not offering the Appellant a proper opportunity to mitigate before passing
sentence.
7. The Hon. Magistrate erred in fact and law in awarding a sentence of 5 years imprisonment plus 6 strokes of the cane,
both of which are illegal.

REASONS WHEREFORE the Appellant prays that:-

a) The appeal be allowed.
b) The conviction be quashed.
c) The sentence be set aside.
[A copy of the proceedings incorporating the decision appealed against attached.]
Dated at Karumaindo the 24th October, 2014.

Signed,
Wakili Shupavu & Company
Advocates for the Appellant

Drawn & Filed by:-

Wakili Shupavu & Company Advocates

_____________

To be served upon:-

Director of Public Prosecutions

___________
[10 Marks]
 Q. 6

Note should be made at the outset:-

a) That whereas the remedy of Habeas Corpus features both in the Constitution [Art. 25(d) and Art. 51(2) as well as in
the Criminal Procedure Code (S.389) and in the Criminal Procedure (Directions in the Nature of Habeas Corpus) Rules, in
the given scenario the central legal instrument expected to be used is Chamber Summons supported by Affidavit as provided
for in the Habeas Corpus Rules (Rule 2).

b) That litigants seeking the Habeas Corpus remedy in Kenya have not used a uniform format for seeking the remedy.
Some litigants have used the traditional method employed in seeking prerogative writs where the application is brought in the
name of the Sovereign (Republic) at the instance of the Complainant/Victim as Ex-Parte Applicant while others have gone
straight to cite the Complainant/Victim or his representative as the Applicant. Since either method has been accepted by the
High Court in Kenya, candidates may use either method and earn marks in equal measure. In the present scenario, Mwenda
Pole’s wife, Zaxc ,inabu is cited as the Applicant on his behalf since he himself is being held incommunicado.

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MBALAMWEZI

MISCELLANEOUS CRIMINAL APPLICATION No. .............OF 2014

IN THE MATTER OF THE CONSTITUTION OF KENYA ARTICLES

25(d) AND 51(2)

AND

IN THE MATTER OF THE CRIMINAL PROCEDURE CODE SECTION 389

AND

IN THE MATTER OF THE CRIMINAL PROCEDURE (DIRECTIONS IN THE

NATURE OF HABEAS CORPUS) RULES

AND

IN THE MATTER OF AN APPLICATION BY MRS ZAINABU MWENDA POLE

FOR AN ORDER OF HABEAS CORPUS ON BEHALF OF MWENDA POLE

ZAINABU MWENDA POLE .................................................. APPLICANT

Versus

INSPECTOR GENERAL OF THE

NATIONAL POLICE SERVICE...........................................RESPONDENT

CHAMBER SUMMONS
[Under Section 389 of the Criminal Procedure Code, Cap. 75
and Rule 2 of the Criminal Procedure (Directions in the Nature
Habeas Corpus) Rules]

LET ALL PARTIES CONCERNED attend the Hon. Judge in Chambers on the _ _ _ day of _ _ _ _ _ _ _ _ _ _, 2014 at 9:00
o’clock in the forenoon or soon thereafter as Counsel for the Applicant may be heard for Orders:-
1. That this application be certified as urgent.
 2. That summons be issued directed at the Respondent requiring his appearance before this Hon. Court on _ _ _ _ _ _ _
_ _ _ _ _ at _ _ _ _ _ _ _ _ in the forenoon in person or by Advocate together with the original of any warrant or order for the
detention of Mwenda Pole in police custody.
3. That the Respondent produce Mwenda Pole, understood to be detained at Ngware Police Station, before this Hon.
Court on the date and time aforesaid and show cause why Mwenda Pole should not be forthwith released.
4. That the costs of this application be provided for.

WHICH APPLICATION is based on the following grounds:-

1. That on the 10th September, 2014 the Respondent through officers subordinate to him caused Mwenda Pole to be
lured away from Zimamoto Hotel in Mbalamwezi City purportedly for his own safety and to help the police in their
investigations but made him disappear without trace.
2. That Mwenda Pole has not been able to communicate with his immediate family since his disappearance.
3. That Mwenda Pole has not been charged before court with any offence to date thereby violating his right to liberty.
4. That Mwenda Pole’s detention is unlawful, calling for the court’s intervention to restore his liberty.

WHICH APPLICATION is further supported by the annexed Affidavit of Zainabu w/o Mwenda Pole sworn on _ _ _ _ _ _ _ day
of _ _ _ _ _ _ _, 2014 and such further grounds as may be adduced at the hearing.

Dated at Mbalamwezi the _ _ _ _ _ _ day of _ _ _ _ _ _, 2014.

Signed
Halahala & Company
Advocates for the Applicant

Drawn & Filed by:-

Halahala & Co. Advocates

___________

To be Served upon:-

Director of Public Prosecutions

___________
[8 Marks]

HEADING (as in Chamber Summons)

SUPPORTING AFFIDAVIT

I, ZAINABU MWENDA POLE make oath and state as follows:-

1. That I am the wife of MWENDA POLE.
2. That on 9th September, 2014 Mwenda Pole left home for Zimamoto Hotel in Mbalamwezi City to attend a Seminar
for Members of his Majimazuri County Assembly which was to begin on 10th September, 2014 and end on 12th September,
2014.
3. That on 10th September, 2014 one Julius Kaisari whom I know and who was participating in the Seminar telephoned
and informed me that Mwenda Pole left the Seminar Hall hurriedly in a car Reg. No. KSG 333 make Peugeot 504 Station
Wagon occupied, inter alia, by people in what looked like police uniform.
4. That the car headed towards Mbalamwezi Divisional Police Headquarters and that Mwenda Pole never returned to
the Seminar.
5. That on the same 10th September, 2014 I visited Mbalamwezi Divisional Police Headquarters to check if Mwenda
Pole was there but I was told he was not, whereafter I enquired from all police stations in Majimazuri County if Mwenda
Pole was being held there but all answers I got were negative.
6. That by 15th September, 2014 Mwenda Pole was still at large but I got credible information from anonymous
sources that he was being held at Ngware Police Station, so I instructed Halahala & Company Advocates to seek court
intervention to secure his liberty.
 7. That what is deponed herein is true to the best of my knowledge and information, sources whereof have been
disclosed.

SWORN by the said ZAINABU MWENDA POLE }

at Nairobi on 15th September, 2014 }
BEFORE ME: } ___________
} DEPONENT
}
}
COMMISSIONER FOR OATHS }

Drawn & Filed by:-

Halahala & Co. Advocates
_____________

To be Served upon:-
Director of Public Prosecutions
_____________
[7 Marks]

NB:
Ideally, Julius Kaisari should also swear an affidavit narrating Mwenda Pole’s activities for the short period he was at the
Seminar and how he left. However, in view of the candidates’ time constraints, it should suffice if only Mrs Zainabu
Mwenda Pole swears the Supporting Affidavit. A sample Affidavit by Julius Kaisari is, however, attached for those who get
round to preparing one (either in addition or as an alternative). The focus is that if candidates demonstrate general knowledge
of the applicable legal instruments and their basic structure, they should pass. Also, these applications are usually
accompanied by certificates of urgency but in this case it would be excusable if such certificate is omitted.

HEADING (as in Chamber Summons)

SUPPORTING AFFIDAVIT

I, JULIUS KAISARI make oath and state as follows:-

1. That in the morning of 10th September, 2014 I was among participants at a Seminar for Members of Majimazuri
County Assembly which was being held at Zimamoto Hotel in Mbalamwezi City.
2. That while the Seminar started at 8:30 a.m., another participant, Mwenda Pole arrived at 9:30 a.m. looking restless
as he sat at the same table with me.
3. That after about 15 minutes he stepped out of the Seminar Hall to answer a call on his mobile phone and returned
after about 5 minutes.
4. That Mwenda Pole had hardly settled down after his return to the Hall when he received another call which seemed
to disturb him.
5. That as he stepped out to answer the second call, he enquired from the caller: ―What is it again, Inspector?‖
6. That when Mwenda Pole went out to answer the second call, he stayed out for a further 5 minutes before returning
to the Hall, whereupon he confided to me that the persistent caller had described himself as Inspector Karanga from
Mbalamwezi Divisional Police Headquarters who said he had information that his (Mwenda Pole’s) life was in danger and
that he (Inspector Karanga) was on his way to the Seminar venue to take him to a place of safety and for him to assist the
police with their investigations.
7. That Mwenda Pole then picked up his Seminar Papers, stepped out of the Hall and entered a Peugeot 504 Station
Wagon car Reg. No. KSG 333 some of whose occupants wore what looked like police uniform; and the car drove away in the
direction of Mbalamwezi Divisional Police Headquarters.
8. That when afternoon came and Mwenda Pole had not returned to the Seminar, I telephoned his wife, Zainabu and
briefed her about Mwenda Pole’s disappearance for her to take necessary action.
9. That what I have deponed to herein is true to the best of my knowledge and information, the sources whereof have
been disclosed.

SWORN by the said JULIUS KAISARI }

at Nairobi on 15th September, 2014 }
BEFORE ME: } ___________
} DEPONENT
}
}
COMMISSIONER FOR OATHS }

Drawn & Filed by:-

Halahala & Co. Advocates
_____________

To be Served upon:-
Director of Public Prosecutions
_____________