1

NATURE OF CRIMINAL PROCEEDINGS.................................................................3

HOW CRIMINAL CASES ARE INITIATED...........................................................4
ARRESTS WITHOUT WARRANTS..........................................................................8
CHARGES AND INFORMATION...............................................................................10
PRINCIPLES OF A FAIR TRIAL................................................................................16
PLEAS..........................................................................................................................16
CHANGE OF PLEA....................................................................................................19
BAIL..................................................................................................................................19
PRE- TRIAL BAIL......................................................................................................23
SURETIES....................................................................................................................25
FORFEITURE.............................................................................................................26
CHALLENGES............................................................................................................27
SUGGESTED REFORMS..........................................................................................27
RENEWAL AND APPEALING FOR BAIL TERMS.............................................27
The trial............................................................................................................................28
Prosecution Case..........................................................................................................29
EXPERT WITNESSES...................................................................................................30
TRIAL WITHIN TRIAL............................................................................................30
Identification and Production of Exhibits.....................................................................33
Return / Destruction of Exhibits................................................................................33
THE SCENE OF CRIME...............................................................................................33
TRANSFER OF CASES.................................................................................................34
Open Court.......................................................................................................................36
JUDGEMENT..................................................................................................................37
EXPERT WITNESSES...................................................................................................38
Trial within a Trial......................................................................................................39
EXHIBITS........................................................................................................................41
Identification and production of exhibits..................................................................41
Return and Destruction of Exhibits...........................................................................42
Scenes of Crime................................................................................................................42
OPEN COURT.............................................................................................................45
JUDGMENT....................................................................................................................46
DELIVERY OF JUDGMENT....................................................................................47
SENTENCING.................................................................................................................48
Mitigation of the offender...........................................................................................50
Factors the court considers in sentencing..................................................................50
TYPES OF SENTENCES...........................................................................................51
(a) Community service shall c…..........................................................................55
FUNCTIONS OF THE NATIONAL COMMITTEE..............................................56
Probations of Offenders Act.......................................................................................57
TRIALS BEFORE THE HIGH COURT......................................................................57
APPEALS AND REVIEWS............................................................................................61
REVIEWS....................................................................................................................62
POWERS OF THE COURT IN APPEALS OR REVIEWS...................................63
BAIL PENDING APPEAL.........................................................................................64
HABEAS CORPUS APPLICATIONS..........................................................................65
 2

INQUESTS:......................................................................................................................66
CONVICTIONS OF OFFENCES OTHER THAN THOSE CHARGED..................70
CONSTITUTIONAL REFERENCES...........................................................................72
 3

CRIMINAL PROCEDURE

NATURE OF CRIMINAL PROCEEDINGS

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 5 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 needs 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.
The court structure in Kenya has
The Court of Appeal – original jurisdiction in contempt proceedings and it is
essentially an appellate court and it is the court that sets out policy as its
decisions are binding

The High Court – has various divisions i.e. in Nairobi there is the Criminal
Division, Civil Division, Family Division and Commercial Division and the
Constitution Court. the Chief Justice can constitute a constitutional court out of
any three divisions to sit as a constitutional court. the Constitutional bench is
important as it has to deal with the violations and contravention of the accused
persons who can go to the constitutional court to seek redress.

The subordinate courts are of different levels

Chief Magistrate
SPM
 4

PM
SRM
RM
DM

The important thing about the levels is attached to the jurisdiction that the courts
have. From the CM to Senior Resident Magistrate they all have the jurisdiction to
grant the death penalty. The lowers courts have jurisdiction of a maximum
jurisdiction of 7 years imprisonment while the DM courts have the jurisdiction of
2 years imprisonment. For example a resident magistrate cannot entertain a plea
regarding robbery with violence which carries a death sentence.

The High Court since it has original jurisdiction can hear any case be it traffic or
others but there are cases which are exclusively triable by the High Court which
are murder and treason, these two cannot be tried in the subordinate courts.
The subordinate courts can try manslaughter but not murder or treason.

Under the CPC there are provisions that relate to first class magistrates having
jurisdictions to hear appeals. These appeals are only from District Magistrates
Class III which no longer exist.

Magistrates Courts Act

Magistrates Courts Amendments Act

All the magistrates from CM to Dm are professional lawyers. In some of the

remote areas, there could be a District Magistrate class I who is a lay magistrate.

HOW CRIMINAL CASES ARE INITIATED

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.
 5

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 with 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 deals with issuing of the warrant. The
police are given the authority to require of a 3 rd party who is not a suspect but is
harbouring a suspect to make way and give access for the arrest of the suspect.
22(2) states it is lawful for the police officer to break open any outer or inner door
of police. Police are given powers to break in. the break in does not have to be in
the residence of the suspect it could be anywhere. Before the break is conducted
the police officer or the person effecting the warrant should give notice of his
authority and purpose and demand for admittance. In Kenya this is not evident
in practice, hardly any notice is issued but if someone makes a complaint, that
police used unnecessary force, one seek redress from court. the notice is effected
verbally and orally and at the scene.

There is a proviso to this section that provides that if the place is an apartment of
a woman who is not the suspect …. The police shall give notice to the woman to
 6

withdraw and afford her time to withdraw. 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.

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.

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 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.
 7

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.

CRIMINAL PROCEDURE Lecture 3 23rd May 2006

A warrant of arrest can also issue against witnesses.

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. 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.

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.
 8

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.

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.

Section 100 – 117 – warrant of arrest

ARRESTS WITHOUT WARRANTS

Most cases actually fall under this mode of arrest section 129 states that a police
officer without a warrant may arrest any person he suspects to have committed a
crime, any person who has escaped from lawful custody, suspected of having
committed an offence, suspected of being a deserter from the Armed Forces…
 9

Police have wide powers to be able to having detected crime to be able to

apprehend the persons suspect of committing crimes.

Section 30 An officer in charge of a police station may in the same manner arrest
or cause to be arrested—
(a) 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 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.

Section 34. Arrest by private persons

Section 38 when an offence is committed in the presence of a magistrate within

the local limits of his jurisdiction, he may himself arrest or order any person to
arrest the offender and may thereupon, subject to the provisions of this Code as
to bail, commit the offender to custody.

Section 39: A magistrate may at any time arrest or direct the arrest in the
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. When
magistrates effect an arrest they have judicial immunity and thus should be
careful before exercising these powers, it is important that they do not violate the
rights of citizens by arresting people simply because they have these powers. It is
in rare circumstances that magistrates effect arrests.
 10

CHARGES AND INFORMATION

Section 89 – Proceedings may be instituted either by the making of a complaint

or by the bringing before a magistrate of a person who has been arrested without
a warrant
(2) A person who believes from a reasonable and probable cause that an
offence has been committed by another person may make a complaint
thereof to a magistrate having jurisdiction.
(3) A complaint may be made orally or in writing, but, if made orally, shall
be reduced to writing by the magistrate, and, in either case, shall be
signed by the complainant and the magistrate.

For somebody to be brought formally before the court there must be a formal
complaint. The Charge must be drawn in a particular way and if the police bring
the charge they will produce it in form of a standard charge sheet that all police
have.
We are concerned on how the charge is drawn. The charge is not standard
because every offence that can be charged is different and there is no template as
no charge is like the other. The circumstances are different. Particulars are
always different. The requirement for drawing the charge is that one has to be
very sure of what offence has been committed,

Section 89(5) Where the magistrate is of the opinion that a complaint or formal
charge made or presented under this section does not disclose an offence, the
magistrate shall make an order refusing to admit the complaint or formal charge
and shall record his reasons for the order.

A magistrate can discharge under 89(5) if the charge does not disclose an offence.
particulars are what gives one what the offence is and whether it falls under a
specific provision. One cannot be charged with a non-existent offence.

When somebody makes a report that an offence has been committed the police
must look at all the statements from the witnesses and the complainant then they
go to the statutes or the penal code to see which offence is being revealed.

Once the police have determined what offence has been committed then the rules
that will follow is that firstly every offence that is committed must be charged
separately, this is the rule that gives rise to joinder of counts, gives rise to joinder
of persons. Counts constitute every individual offence that have been committed
in a single transaction. Depending on the number of offences that have been
identified one uses e.g. Count 1, Count 2 etc.

The Charge will have a statement of offence which will be the Statement that will
tell you what the offence is e.g. Theft contrary to Section 279(b) of the Penal
 11

Code. One has to be careful not to join charges. where the facts indicate that two
persons were arrested and brought together to the police station, it is possible
that the reports are different for both persons, the facts of what offences they
have committed might be very different. One should never have counts that are
totally unrelated, there must be a nexus.

When one is jointly charging persons, one is charging them in one charge sheet.
Where there is a link between any offences or persons then one has a joinder of
counts. In the circumstances where one person has committed two different
offences at different times and locations, one must have different charge sheets as
the offences are unrelated. If one has more than one charge, there must be a
statement of offence which is descriptive of the offence.

The particulars of the offence essentially deal with the circumstances under
which the offence was committed.

Section 137 (a)(i) a count of a charge or information shall commence with the
statement of the offence charge called the statement of the offence;
(ii) the statement of offence shall describe the offence shortly in ordinary
language, avoiding as far as possible the use of technical terms and
without necessarily stating all the essential elements of the offence, and
if the offence charged is one created by enactment shall contain a
reference to the section of the enactment creating the offence;

One should never ever have an offence called theft contrary to S 268 as S 268 is
descriptive. All offences relating to theft are created by section 279 and other
sections. There is a section that creates the offence and the section that
prescribes the sentence. The latter part is important when one has a descriptive
offence. statement of offence must talk of the section that describes the offence
read together with the section that prescribes the sentence.. in some cases the
section combines both the description of the offence and the prescription of
sentence.

Offences that deal with burglary, burglary occurs between 6pm and 6 am, if the
offence occurs between 6am and 6pm it is housebreaking. So burglary will be
read together with the section that describes house breaking. One combines the
two sections of the penal code on the statement of offence.

137 (a) (iii) After the Statement of Offence, particulars of the offence shall be
set out in ordinary language in which use of technical terms shall not be
necessary. This means that once a person has determined what the statement of
offence is.

One of the main objectives of a charge is to clearly communicate with the accused
person the offence to which they have been charged. That is why there is the
emphasis that it should be in ordinary language. Simplicity is required so that
 12

information which is critical to the accused is communicated in a manner that it

is easily understood.

The particulars are the ones that tell the accused person exactly where they
committed the offence, the owner, what was stolen if it is theft etc. particulars
should also briefly show the elements of the offence the accused is charge with.
Like in rape a key element would be to show in the particulars that there was lack
of consent. If it is in burglary there must have been forceful entry to constitute
burglary.

137(c) talks of description of property.

If the property belongs to say Mutua, then one has to clearly indicate that what
was stolen belonged to Mutua. It is sufficient to name one person as the owner.
This occurs especially in cases where one has theft from houses.

Invariably people put value to their properties and one of the problems with
putting value is that magistrates take that value to determine the bail terms. The
value put on property is subjective, and so the danger is the influence it has on
bail terms. There is no rule against putting value on stolen property, the value
should be real.

If a motor vehicle is stolen, it should be clearly described because it is very easy

during the course of trial for someone to dispute some description.

(iii) property belonging to or provided for the use of a public establishment,

service or department may be described as the property of
Government;

description of persons (d) in the charge sheet describe the accused person, for
an accused person, their occupation becomes important in relation to the offence,
for example if one is employed, it becomes theft by servant. Their occupation is
part of the description of the element of the offence that has been charged, so one
has to say who the person is in relation to the victim of the crime.

Where there are aliases it is important to name all the names that the accused
goes by.

CRIMINAL PROCEDURE Lecture 4 30th May 2006

CHARGES AND INFORMATION

Section 137 Rules with regard to framing of charges:

 13

Statement of the offence based on description of what offence has been

committed.

Particulars are the words which will describe the offender and it will also briefly
describe the particulars of the offence. it will describe the property or goods
which are the subject matter. If the goods are specific, there will be a proper
description of the goods. The particulars are supposed to reveal the ingredients
of the offence.

If there are things like instruments or documents to be indicated in the charge

sheet, Section 137 (e) makes provision that where it is important to refer to
document it shall be sufficient to describe it without setting a copy thereof. If it is
a cheque for example you don’t need to attach a photocopy.

137 (e) where it is necessary to refer to a document or instrument in a

charge or information, it shall be sufficient to describe it by any name or
designation by which it is usually known, or by the purport thereof, without
setting out a copy thereof;

The issue of joinder becomes relevant depending on the charge.

A charge must have

Statement
Particulars – the particulars must be clear, concise, must describe the elements of
the offence

Where there is more than one person charged, you can join persons if they have
jointly committed an offence, it must be clear in the facts that there was unity of
purpose. It will depend on the circumstances, if you want to charge them with
only

Is there a common purpose? Charge the people jointly.

Particulars
Two men have car jacked a motor vehicle – there is no violence – theft of motor
vehicle – charge the persons with committing the theft of motor vehicle.
Sura Mbaya will be charged jointly with others not before the court. Joinder
means that there is more than one offence in the same transaction so one has to
join all the offences in one charge sheet.

Charge him separately on another charge sheet for stealing a Toyota Corolla

Particulars
Sura Mbaya jointly with others not before the Court

Second count: Theft of Toyota Corolla

 14

Where facts are not clear on lets say sexual assault, charge with the highest
charge which would be rape. There is provision that were someone is charged
with rape and evidence is adduced that a lesser offence was committed the court
can reduce the charge to the lesser offence. the court cannot enhance a charge
but it can reduce the charge depending on the evidence.

COUNT NO. 1 Theft of Range Rover

COUNT NO. 2 Theft of Toyota Corolla

Each statement of offence must attract its own particulars. A charge is duplex
where in one charge there is more than one offence. the rule of joinder of counts
and joinder of charges.

ALTERNATIVE CHARGE
It is different from a count, if in the main charge there is not enough evidence
adduced, then there is an alternative charge to which evidence can be adduced
that another offence occurred.

In doctrine of recent possession –

An alternative charge can only be brought in respect of the person in whose

possession the goods have been found.

COUNT NO. 1

STATEMENT

PARTICULARS

COUNT NO. 2

STATEMENT

PARTICULARS

ALTERNATIVE CHARGE

STATEMENT

PARTICULARS

COUNT NO. 3

STATEMENT

PARTICULARS
 15

The good rule is to charge with Rape as count No. 3 knowing very well that if
there is no evidence to support rape the court will if there is evidence reduce the
charge to indecent assault.

In ones legal opinion they will have given all the details and the charge that one
drafts is based on ones legal opinion.

Alternative charges are comparative and therefore the court cannot find you
guilty of the main charge as well as the alternative. The court will not find a
person guilty of theft and then guilty of possession. In terms of making findings,
as a court one should never find somebody guilty of the main charge and the
alternative.

There is a provision for amendment of charges which means in the course of trial,

Section 214 of the CPC it states that where, at any stage of a trial before the
close of the case for the prosecution, it appears to the court that the charge is
defective, either in substance or in form the court may make such order for the
alteration of the charge, either by way of amendment of the charge or by the
substitution or addition of a new charge, as the court thinks necessary to meet
the circumstances of the case:

This section is to the effect that if it appears to the court that the charge should be
amended, it can move itself and require the prosecutor to amend the charge.
Alternatively the prosecutor can make an application to the court to amend the
charge. A new charge is brought with red underlinings to show that it has been
amended.

Substitution means that there is a totally different charge. If for example

someone has been charged with dangerous driving, if thereafter the victim of the
Accident dies, the prosecution can substitute it with one of causing death by
dangerous driving and they can substitute the charge.

If in the course of evidence it emerges that other charges that ought to have been
drafted were not drafted the court can direct that the other charges be drafted,
the police will then go and draft and bring a new charge sheet. Provided where a
charge is so altered the court shall call upon the accused person to plead to the
additional or substituted charges. The court must take a fresh plea giving the
accused to admit or deny.

Where the charges are altered the accused may demand that the witnesses or any
of them may be recalled and give evidence afresh or be further be cross-examined
by the accused or his advocates. This means that once a charge is altered or
amended the accused is at liberty to require the witnesses who had already given
evidence to be recalled to either given evidence afresh or to be re-examine.

Variance between charge and evidence, and amendment of charge.

 16

In the court file in the proceedings it must be indicated that the accused person;
that Section 214(1) is complied with.

The charge will be read and explained to the accused person. The accused person
is required to respond. 214(2) court file should indicate that the accused has the
right to have the witnesses recalled, it should all be recorded down and the court
should proceed to recall the witnesses.
214(2) Variance between the charge and evidence adduced in support of it
with respect to the time at which the alleged offence was committed is not
material and the charge need not be amended for the variance if it is proved that
the proceedings were in fact instituted within the time (if any) limited by law for
the institution thereof.

One of the most common variances is the variance of time, this is due to time
since proceedings take place long after the offence. the witnesses usually give
varied times. It has taken awhile and there will be variance of time. The
provision is saying that variance of time should not be a material thing.

214(3) where an alternation of a charge is made under sub section (1) and there
is a variance between the charge and the evidence as described in subsection (2),
the court shall, if it is of the opinion that the accused has thereby misled,
deceived, adjourn the trial for such a period as may be reasonably necessary.

The court shall adjourn the trial for such a period as may be reasonably
necessary. If the substitution or amendment brings in a different charge, then
one would have been misled and will need time to reorganise themselves. For
example if you beat up somebody and within the stipulated time they later die,
one is then charged with manslaughter. Like when Patni was charged with
murder of an employee – it takes one by complete surprise and they usually will
need time to go and organize themselves.

PRINCIPLES OF FAIR TRIAL

CRIMINAL PROCEDURE Lecture 5 6th June 2006

PRINCIPLES OF A FAIR TRIAL

PLEAS

 On appearance before court, a judicial officer must ensure that the charge
is properly drawn
 It must be in regard to an offence that is known to law
 It must not be duplex
 17

 Section 77(2) (b) of the constitution makes ..

All the proceedings must then be recorded

The court records must reflect the Coram which include the judicial officer by
name, the Prosecutor by name,

Section 198(4) of the CPC provides that the language of the High Court shall
be English whereas that of subordinate courts shall be English or Kiswahili.

Adan v Republic – Plea should as far as possible be recorded in the language

of the accused. Summary proceeding of what is required in the course of a
plea.

That in the event of a plea of guilty the fact should be stated to the accused
and he/she should be granted an opportunity to respond

Where there is more than one accused jointly charged, the plea of each should
be recorded separately. And if a charge or indictment contains several counts
the accused must be asked to plead to them separately. In the event that an
accused does not change plea, a plea of guilty should then be entered and
conviction recorded and after mitigation and facts relevant to sentence are
taken the sentence can be meted out.

Plea of guilty – this kind of plea must be unequivocal and hence the elaborate
requirements laid down in the case law where the plea is not properly taken
and recorded the accused may be set free despite the plea of guilty.

Not guilty – the recording of in nearly exact words of the accused need not be
as scrupulous as in the case of a plea of guilty but must be recorded
nonetheless. Section 278 of the CPC provides that where one pleads not guilty
they are deemed to have put themselves up for trial.

Say nothing i.e. refuse to plead, assuming that the court accused understands
the proceedings a plea of not guilty should be entered.

May plead lack of jurisdiction by the court.

Demurrer - meaning that the charge is open to some legal objection, e.g. facts
may be true but do not amount to an offence May plead lack of jurisdiction.

Autrefois acquit/convict Section 279 of the CPC makes provision that:

(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.
 18

(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.

In cases where it would have been proper to prefer the charge complained of
with the previous charge an accused can plead that they had previously been
tried and convicted or acquitted of the same offence (see Section 77(5) of the
Constitution)

Further under the same Section 279 they may plead that they have obtained
Presidential pardon for the offence in question (see Section 77(6)

It is cardinal principle of constitutional and criminal law that a person must

not suffer double jeopardy for the same offence.

The test is not whether the facts relied on are the same at the two trials but
whether an acquittal or conviction on previous trial would have led to a
similar conclusion in the subsequent trial R v Duadji (1948) 15EACA 89.

Conditional discharge does not bar similar charges, discharges such as those
under Section 87, or where prosecution enters a nolle prosequi.

An absolute discharge amounts to a bar to preference of similar charges

Section 162 deals with Insanity

Where the court has reason to believe that due to unsoundness of mind the
accused is rendered incapable of understanding the proceedings/making his
defence, the court shall order for a medical examination. If the medical
examination confirms unsoundness of mind the proceedings shall be
postponed.

Where offence is bailable the accused maybe released on bail on sufficient

security that he will be properly taken care of and shall not injure ..

He may be ordered to appear before the court or other officer appointed by

the court. If he is not capable of raising bail he shall be remanded in custody
or in a mental hospital. Problems do arise since there are a lot of accused
people who are not serious mentally ill as those already there and the
congestion of mental hospital arises being caused by persons who should be in
custody, they can be remanded in custody if there are facilities that can take
care of their mental health. The case shall be reviewed from time to time as
provided under Section 164.
 19

CHANGE OF PLEA

An accused may change their plea from not guilty to guilty in the cause of
trial.

It is also accepted that where in mitigation the accused essentially retracts the
plea of guilty then the court can enter a plea of guilty.

Kamundi v R [1973] EA 540 held that whereas, 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 the court becomes functus
officio

These East African decisions followed the English case of S

The court can be described as being functus officio when it has determined a
case by passing a sentence – at which point it lacks power to re-open the case
on its own motion or on application by the prosecution or the defence.

In the course of taking of a plea one finds in other jurisdictions a plea

bargaining where a person can bargain for a lesser offence in exchange for
being a State witness. There is no provision for plea bargaining in Kenya

Sabur v R 1958 EA 126 – it was stated that plea bargaining would be deemed
to negate a free and voluntary plea. An accused person is being induced to
bargain for a lesser sentence. The position is that the defence and prosecution
have no place in the sentencing process which is seen as a preserve of the
Judiciary. It is not however to have accused persons charged with murder
pleading guilty of manslaughter, this is common in the High court through
State counsels indicating to the court that they have no objection to such a
plea – this is an isolated practice that has no legal backing which means the
process can be exploited. Since murder is non-bailable, they can use this
process to bargain and there would be nothing to bind them to make sure that
they plead guilty to manslaughter.

BAIL

In the event that an accused pleads not guilty or a plea of not guilty is entered
the next question is that of granting of bail.

Bail is one of the rights protected by the constitution – based on the notion
that one is innocent until proven guilty.
 20

Bail is governed by the constitution, the CPC, case law and practice adopted
by various courts. When we look at the processes and securities that are
offered, most of these are not in the CPC and courts have adopted some of the
practice. In every station there is usually a procedure that the courts follow.

Section 72(5) OF The constitution makes provision for bail to those awaiting
trial. Prior to 1987 all offences were bailable.

By amendments to Section 123 of the CPC Parliament created non-bailable

offences i.e. murder, robbery with violence and attempted robbery with
violence – this was done without similar amendments being made to the
Constitution.

Margaret Magiri Ngui v R

The appellant together with others were charged with robbery with violence.
While in custody she suffered severe ulcers and high blood pressure, she
applied and was denied bail under Section 123. She challenged the
constitutionality of Section 123 of the CPC. It was argued that the provisions
contravened ..

The constitutional court agreed that the said sections were inconsistent with
the constitution and declared them null and void. It then went on to consider
the bail application on merit and held that bail as a general rule should not be
granted where the offence charged carries a mandatory penalty because the
temptation was very high in such cases.

Subsequently section 72(5) of the Constitution was amended to prohibit the

grant of bail in offences punishable by death.

The result is that the grant of bail was no longer to be considered on the merit
of individual cases with regard to capital offences but would be based purely
on the nature of the offence.

During the time when the amendments of section 72 was being argued the AG
argued that allowing for bail in capital cases would lead to courts readily
granting bail in such cases.

This was not withstanding the fact that the Constitutional Court ‘s refusal to
grant Magiri bail.

Eliud Mwaura v R Criminal App NO 446 of 1986 had also earlier

demonstrated the seriousness with which courts addressed the issue of bail
for capital offences where bail was denied even though the accused had been
in remand for 11 months. In practice it was agreed that courts had to be
cautious in granting bail for capital offences.
 21

Section 72(5) states that bail is granted to ensure the attendance of the
suspect at the trial. Bail consists of the temporary release of an accused
person while awaiting trial. It is therefore an agreement between the accused
(and his sureties if any) and the court that the accused will pay a certain
amount of money fixed by the court should he fail to attend court as and when
required by the court. Bail is temporary as it is based on the assumption that
the accused will show up in court if and when required to do so.

The sureties bind themselves to the court to forfeit whatever amounts they
have bound themselves.

Section 123 (2) of the CPC provides that the amount of bail shall be fixed with
due regard to the circumstances of the case and shall not be excessive. You
cannot bind a person with conditions of bail that they are not able to meet.

Section 123 – there are two persons who can grant bail, the police can grant
bail at the police station and if they don’t then the accused can make an
application. When an accused person is held for an inordinate period the
accused can go before a subordinate court to apply for bail. It does not
happen often and what often happens is that when the accused is held, if the
accused does not appear before the court a habeas corpus application can be
made before the High Court. Habeas Corpus tries to compel the person
holding the suspect to produce the suspect before a court of law. Section 123
gives the court power to grant bail. Once the court has determined the
amount of bail, the court will consider whether to grant bail or not. Firstly is
the offence bailable or non-bailable, attempted murder is a bailable offence.

When the Bill in 1993 – the Narcotics and Psychotropic substances Act when
it was enacted, there was an attempt to state that these offences were not
bailable and the constitution was not accordingly amended. The subordinate
courts were refusing to grant bail but a Constitutional Court clearly indicated
that Magiri was still binding on the courts, and that statutory law should not
come up with provisions prohibiting bail. Where bail is to be denied it is still
should be within the constitutional framework. With Drug related offences,
the principles of Magiri apply and the principles are that it is true one has a
right to bail but due to the nature of the crime one is likely to abscond.

Once the court has identified that an offence is bailable, when determining
what the terms of bail are going to be is that there is not table in the CPC that
states bail terms. There are three ways in which the court can grant bail

1. Cash bail – cash deposited with court and a receipt obtained, the court will
record that cash bail is granted and in addition the court will indicate the
mention date and the date for hearing. If it is within 14 days one does not
need a mention day, anything longer than 14 days there will be a mention
date.
 22

2. Bond – bond can be granted as free bond, the accused is released on their
own bond after signing a document which indicates an amount e.g. 5000
IN the event that the accused fails to turn up in the court when they
eventually show up they are required to explain or forfeit the amount.

3. Bond and surety – in addition one is required to produce a number of

sureties which is discretionary upon the court whether one needs one
surety or more. Surety are brought before the court and examined by the
court, the process is to ensure that the surety understands what there
obligation to the court is and what their responsibility towards the accused
person is. Their responsibility is to ensure that the accused person comes
to court. if the surety agrees to become surety they are required to sign
the documents binding themselves to amounts of money that they are
prepared to forfeit to the State should the accused abscond. One must
have a Kenyan surety so that the likelihood of absconding is minimized.
The court has power to reject a surety and so it is not only the surety who
can refuse but after examination the court can decide that a person is not
suitable to be a surety. The prosecutor is also given a chance to cross-
examine the surety, this is important since the courts do not have ability
to trace the surety or the accused person in the event that they disappear
but the prosecutor through the police force can trace the people. The
prosecutors can raise an objection and the court must consider it before
allowing or disallowing the objection. The Prosecutor has the
responsibility to cross-examine the surety and are given the opportunity to
object to bail even before it is granted. Essentially if the prosecutor does
not raise the objection the court is expected to grant bail.

In the US they have an institution of Bondsmen who are not part of the
institution but they can sign bonds for accused with the responsibility of
ensuring that the accused people show up in court, if the accused disappears,
the bondsmen then are required to forfeit the money.

The courts may require that in addition to signing security documents, that
security are deposited with court. they include Titles, logbooks etc, in
addition to bringing sureties they are required to deposit securities with the
courts. If it is a logbook a search must be done with the Motor Vehicle
department and the court will go through all the documents and official
communication must come from the registrar of motor vehicle confirming
particulars of the logbook, if it is a title there has to be a search and the land is
valued so in addition to showing up with a title, the registrar of land must
confirm that it exists and is worth the amount being alleged.
The reasons why courts require these securities, when the accused abscond, it
may be difficult to recover money from an accused but where the securities
are available the state can recover what the accused is meant to have forfeited.
It depends on the court practice on how much they will require. Some courts
might reject title deeds and with sureties the court has to guard against
professional sureties. This happens in big cities where sureties are not easily
 23

recognizable and people become professional sureties in that they negotiate

with accused persons who pay them and they produce fake documents and so
when the accused persons disappears they cannot be traced and the securities
turn out to be fake.
CRIMINAL PROCEDURE Lecture 6 13th June 2006

PRE- TRIAL BAIL

There is pre-trial bail and bail pending trial. Pre-trial bail is the bail given to an
accused person before trial.

Some of the things taken into account are

1. Nature of Offence – is it bailable or not even where the offence is bailable

consideration should be given to its seriousness; R v Kariuki Sunday Nation Jan
1976 at page 3, where the accused told the manager of Egypt air in Nairobi …

Another consideration is whether it is one that

2. An additional consideration to the nature of the offence is whether it is

the kind of offence that may attract undue hostility to the accused – i.e.
R V Gajjan Singh and others where a landlord was charged with a
criminal offence and bail was opposed by the prosecution on the
ground that such release may have led to a breach of the peace i.e. an
attach on the …
The court said that “… that the application was opposed on the ground
that the appellant might not appear to stand the trial but on the ground
that there was a reason to apprehend breach of the peace by one side or
the other … we consider that the attitude taken up by the prosecution
advocate was very sensible and wise.

3. Severity or otherwise of sentence in case of conviction e.g. where it is

likely to attract a fine rather than imprisonment the more reason to
grant bail.

4. the court will consider what sort of person the accused is – his social
standing, ties with the community, ownership of property in the areas,
is he a citizen or non citizen, immigrant etc the court may also
consider the special circumstances of the accused e.g. illness which
may be aggravated by incarceration.

5. The court considers the length of the remand period, the longer it will
take before the trial the more reason to grant bail under this head may
also arise consideration to delays either by the prosecution or by the
defence. The longer it takes the court to hear a case the more reason to
grant bail.
 24

6. Unnecessary delay by prosecution may result in grant of bail in cases

where the court would otherwise not grant bail.

7. Delaying tactics by the defence may also lead to cancellation of bail R v

Muturi Kigano Daily Nation 1976 of 18 and 19 November at pages 3. If
the court for any reason believes that adjournments sort by defence are
not genuine, they can cancel bail and have the case proceed with
expediency.

8. Where the accused person is to be released on surety, the court has to

determine whether the accused may fail to turn up for trial especially
where no deposit has been made. Section 125 – deposits to be made.
Some courts may consider that surety having given their personal
information is sufficient amount of surety based on their earnings, the
court can ask for payslips and if the court allows surety to be surety
based on their earnings they have to be certain that if the accused does
not turn up in court they would know how to find him.

9. Where the accused is to be released on sureties; are they capable of

paying up in the event of accused failing to turn up for trial especially
where no deposit has been made.

Central to all these considerations is whether the accused person will turn up
for trial – whether or not there is likelihood of accused absconding.

10. Whether or not the accused is likely to interfere with witnesses – this is
a difficult matter for courts to evaluate this because the courts do not
know the relationship of the accused and the witnesses – there may
well be cases where it is possible to make an intelligent guess that the
accused because of the nature of the offence may actually intimidate
prosecution witnesses. It is difficult for courts especially where there is
no evidence of such an occurrence happening.

Usually it is the prosecution that makes the objection that there is likelihood
of interfering with witnesses. Where they do so then grounds supported by
facts should be adduced to show reasonable cause for the alleged fears. It is
not sufficient for the prosecution to allege, they must show facts.

Character and antecedents of the accused persons in some jurisdiction this is

taken into consideration – however in Kenya the practice is that the courts do
not have access to previous records of the accused therefore they can only
consider situations where the accused had previously absconded or abused
bail terms.

Depending on the nature of the case the magistrate may inquire into the kind
of evidence in support of the accusation i.e. its cogency.
 25

Views of the prosecution – the prosecution must be given opportunity to

object to bail if they so wish. However, the grant of bail is entirely the
discretion of the magistrate – where the prosecution advances cogent reasons
then it is advisable for bail to be denied.

Section 124 of the CPC states that bail should not be excessive, but no specific
amounts are provided the court should consider whether the amount is
reasonable. The amount of fine or sentence generally that the offence is likely
to attract.

The economic circumstances of the offender should be taken into account

Insufficient Bail Terms

Section 127 provides that where through mistake, fraud or otherwise,
insufficient bail terms or sureties have been accepted, or if they afterwards
become insufficient i.e. through additional more serious charges the court
may require of the accused to find sufficient sureties failure of which he
maybe remanded in custody.

SURETIES

It is the responsibility of the accused and his next of kin to find suitable
sureties. Sureties are examined by courts/magistrates to assess their
suitability – such examination forms part of the court records. The
magistrates thus take responsibility in the event that something goes wrong.

The prosecution are also allowed to cross-examine sureties and to cross check
any details that they supply to the court, such place of residence, employment,
authenticity of any documents produced.

The examination of sureties includes finding out the nature of the relationship
that exists between them and the accused - whether they can exercise
authority to require the accused to attend court. It also includes ensuring that
the sureties understand the nature of their obligation to court and their
undertaking to ensure that it is their responsibility where there is failure on
the part of the accused to attend court.

Considerations will also be made to the financial resources of sureties or

capability, character and previous convictions if any. Proximity or
relationship with the accused person is also taken into consideration.

It is essential that the surety should be interested in and looking after and if
necessary using powers/or position of authority over the accused to prevent
his escape.
 26

They must attain the age of majority.

Under Section 128 the surety can apply at any time to be discharged from
responsibility, there is no requirement for a surety to furnish the court with
reasons. In practice such applications are made during mention dates when
the accused is present. Where the accused is absent then a warrant of arrest
may be issued to require attendance…

Section 129 provides that where a surety dies before a bond is forfeited, his
estate shall be discharged from all liability in respect of the bond. This
provision should be understood within the context of the personal nature of
the obligation of a surety to the court which cannot be assigned.

FORFEITURE
Section 130 and section 131 OF the CPC provides an elaborate procedure for
forfeiture where an accused absconds, in summary it iis as follows;
A warrant of arrest is issued against the accused and a summons to the surety
If the accused comes to court he should give reasons as to why forfeiture
should not take place if the court is persuaded the warrant may be ..

Where the accused is not arrested and continues with non attendance the
surety will be required to show cause why forfeiture should not be ordered
against them.

In practice the surety will be given time to look for the accused and it is only
where he fails to do so that the forfeiture will ensue.

If penalty is not paid then an order can issue for attachment against property.
Where it is not possible to attach property the court can make an order for a
term not exceeding 6 months.

The court may also enforce only part payment of the surety.
R v Forgobhai Jessa the accused was released the court held that the
undertaking by a surety was not a mere formality. A surety incurs duties in
relation to the person whose attendance he had been bound.

If he fails to take reasonable precautions in the discharge of his duty he is

liable to be ordered to pay the penalty of the bond.

Nsubuaga v R 1968 EA 10 – it lays down procedure to be followed before

forfeiture. The accused was granted bail of Shs. 500 for trial on 25 th July
1967, on which date the magistrate recorded that the accused was absent and
issued a warrant of arrest. On appeal IT WAS held that a mere statement by
prosecution is not sufficient to satisfy requirements of Section 130(1) of the
Uganda’s CPC which is similarly to Kenya’s section 131(1). Evidence should
have been given on oath.
 27

The court must take into serious account the fact that rules of natural justice
have been observed. In practice courts adopt various practices when it comes
to issuing orders of forfeiture. There are courts that when the accused person
is called and does not respond, they issue a warrant of arrest. There is need to
verify since it is possible for accused persons to have good reasons why they
are not in court and if an order for forfeiture is made, they can suffer injustice,
once an order for forfeiture is made the magistrate cannot recall it.

CHALLENGES
Some of the challenges that face the grant of bail is that because of the
discretionary nature of bail, the practice of courts may differ from court to
court. there is lack of uniformity in approaching bail terms which confuses
defence counsels and litigants alike.

The defence often view with hostility members of the bench who are
conservative and with awe/admiration those they consider to be liberal with
bail terms. It is really a question of balance that the court has to strike as a
person is innocent until proven guilty. The court should seek to balance all
this.

Courts are called upon to make bail decisions with very little information.
They therefore rely heavily on the prosecution. Criticism has been levelled at
judicial officers who do not grant bail as a matter of practice but wait for
accused persons to apply.

SUGGESTED REFORMS
Legal or administrative requirement that magistrates inform accused persons
of their right to bail
Mechanisms should be created for courts to gauge the financial ability of
accused persons while considering bail terms. This is not a structured
mechanism but a practice that an individual may adopt. It has been suggested
that such mechanisms could use probation officers to provide pre-trial
reports.

There is the suggestion of provision of legal aid for the indigent failing which
judicial officers should be retrained to be more practical in the promotion and
protection of the rights of those appearing before them.

RENEWAL AND APPEALING FOR BAIL TERMS

Section 123 - The High Court has powers to review cases where bail is denied
by the police or the magistrates courts. It also has powers to entertain bail
applications in its original jurisdiction. In practice where bail is denied the
 28

application may be renewed before the court trial secondly, where bail terms
are considered unreasonable application may be made for review of the terms
and appeal lies to the High Court.

Consideration by the trial court will be based on where or not there is a

change of circumstances to warrant such an application. Where investigations
are still going on the police are more likely to fear that the accused persons
can intimidate witnesses not to record statements but once statements are
recorded this minimises that fear.

The trial
A criminal trial commences when on the hearing date an accused person is
called upon to take his place in the dock.
 The charge is then read to the accused and his plea taken. As a
preliminary process the prosecutor is expected to inform the court of
the number of witnesses they intend to call and to indicate their
readiness to proceed. It is important for the prosecutor to indicate to
the court the number of witnesses he will call. Usually in every court
there are courts that take plea and others that don’t but every court has
mentions, they have hearings, judgements etc. the court has to
determine whether to do mentions first, of those who are in remand
and those who are out on bail. The court then does a call over for the
hearing that are there for the day for purposes of determining how
many witnesses are there for each case and which cases is most ready
to proceed.

 If the prosecution is ready to proceed the accused has a right to be

defended by an advocate of his choice, the court should ensure that the
advocate is present.

 Section 194 provides that the accused must be present personally or

where his presence has been dispensed of represented by his advocate
if any throughout the trial.. this position was restated in Afumu &
Another v R 1956 26 KLR 87- the appellant an omnibus driver was
jointly charged with the owner of assault for causing actual bodily
harm. When the principal witness was about to give evidence it
emerged that the appellant was absent his advocate applied for
adjournment which application was rejected. The trial proceeded in
the absence of the accused but in the presence of his advocate. They
were subsequently convicted and the magistrate proceeded to cite his
own (magistrate’s) experience with misconduct of African omnibus
drivers.

 After the plea is read and taken, the trial then starts by the prosecution
tendering its evidence.
 29

 The prosecution has ..

Section 197 of the CPC makes provision for the manner of recording
evidence before magistrates. The evidence of each witness taken down in
writing or typewriter in the language of the court by magistrates or in his
presence and hearing and under his personal direction and
superintendence and shall be signed by the magistrate and shall form part
of the record.
The evidence shall not be ordinarily be recorded in question and answer
form but in narrative form cause the same to be taken down i.e. the
question and answer combined provided that the magistrate may take
down specific questions and answers or cause the same to be taken down.
There is also provision that evidence may be taken by shorthand.

In practice magistrate or judicial officers record evidence by hand and the

Magistrate’s file is the only record of the proceedings. This comes with a
lot of limitations. Firstly it is not humanely possible for a magistrate to
capture everything a witness is saying, one can develop selective hearing
and so one never knows whether the record captured everything as it
should have. For an accused person this becomes an uphill task to
convince the court that something was said and not recorded.

Prosecution Case
The prosecution should lay out its case in a logical sequence and ordinarily
the first witness should be the direct victim of crime if any. The exception
to this rule is where one has expert witnesses, and where there are expert
witnesses, they should take precedence over other witnesses.

Section 151 of the CPC provides that every witness in a criminal matter
shall be examined upon oath administered by the court. in practice where
the witness does not wish to take an oath then they must be affirmed.

The witness shall then be cross-examined by the defence.

The prosecutor file has all the witness statements and as they lead them
they lead them based on the statements that the witnesses have written
down.

The idea of leading the witness and giving evidence is so that the accused
can elaborate what is in the particulars of the charge to prove the case.
facts are laid down to be able to show that the offence the accused is
charged with was actually committed.

Cross-examination is basically to raise doubt on the case of the

prosecution. Because of this a lot of latitude is allowed in cross
examination and one can ask anything they want to ask as long as they are
 30

relevant to the case. the act of cross examination is important for the
defence counsel in the criminal case because of the latitude. One is trying
to build the basis for their defence during cross examination. Cross
examination must have a logical connection to ones defence

After cross-examination there is re-examination which is done by the

prosecution to clarify issues that will have arisen in the course of cross-
examination. It is important to stick to the relevant things that were
raised during cross-examination.

The court also has powers to cross examine witnesses. For the court to do
this, there must be issues where the court is seeking clarification which has
not been brought up by the prosecution or defence. Where the accused is
not represented, this helps the courts to be proactive. The accused who is
not represented may not know how to cross-examine a witness and the
court can do that to clarify issues.

Once cross examination and re-examination have been finalised the court
must sign the proceedings, this is so that at the end of every witness’s
evidence the court must sign and put in the designation and date of that
part of the proceedings. This way the witnesses are called until they have
all given evidence and then the prosecution can indicate to the court that
they are done.

LECTURE 7 22ND JUNE 2006

EXPERT WITNESSES

- These are witnesses who assist the court in areas of expertise such as
medical reports, ballistic reports, handwriting experts, government
analysts
- The general rule of practice is that expert witnesses should be given
priority over other witnesses
- The evidence of such witnesses may be challenged by other experts

TRIAL WITHIN TRIAL

- the general rule is that any statement whether written or orally made by an
accused person relating to the charge against him is admissible in evidence
against him
- the courts are however particularly careful about statements made to
police officers as result the English courts developed what are known as
judges rules to be followed by police officers whenver they wish to take
statements from an accused or suspect – the procedure is largely governed
by the law of evidence
 31

- Section 25 of the Evidence Act ……………………………

- Principally the law has now changed sicne the introduction of the Criminal
Law Amendment Act No. 5 of 2003 Section 25 A of the Evidence Act
provides that
a. confession or any admission of a fact tending to the proof of guilt made
by an accused person is not admissible and shall not be proved against
such a person unless it is made in court

The effect of the provision ………………………………………..

- Since the introduction of the said amendment there have been differing
opinions on its suitability
- Human rights activists have hailed the provision as a step forward in
limiting the opportunity for the torture of suspects by the police
- Judicial officers have been uneasy about a provision that requires them to
perform investigation functions and have pointed out the undesirability of
judicial officers performing such a function that may lead to conflict of
interest
- The police have argued that since the amendment there has been a slow
down in investigations as well as an escalation of crimes
- The problems posed by the amendment has led to another proposed
amendment ie. The Statute Law (Miscellaneous Amendment ) Bill 2005
which proposes to amend Section 25A of the Evidence Act as follows;
Delete the words in court and substitute thereof the words “before a judge,
a magistrate or a police officer (other than the investigating officer ( being
an officer not below the rank of Chief Inspector of police.
(2) The Attorney General shall make rules governing the making of a
confession in all instances where the confession is not made in court
- The proposed bill has attracted criticism from civil society groups who
contend that it is a drawback to the progress made by Act number 5 of
2003 and maintaining their concern that the police will employ torture,
threat and other undesirable and illegal tactics to obtain confessions
should the amendment be passed.
- Confessions pose a major problem in our system because, the burden of
proving a criminal case is on the prosecution, further the accused is
protected from being compelled to give evidence against himself; and yet
ideally a confession if properly taken would be the best evidence against
the accused; note must also be taken of the fact that even where the police
do not produce statements they may still produce evidence such as
recoveries or arrests made arising from such confessions
- Historically due to lack of proper safeguards extraction of confessions
from accused persons has been characterized by systemic violation of their
rights, hence the need to strike a proper balance
- It must be noted that the current provisions presume that there is no need
for rules or guidelines when confessions are taken before a court
 32

- This raises the likelihood of different standards being applied by different

courts and where a dispute arises then it will be difficult to decide with
certainity whoat ought to be
- Nonetheless it is expected that should there be a dispute that the courts
will apply the principles already developed with regard to confessions
previously taken by police officers
- An accused may therefore dispute a statement if it was not given
voluntarily ie. If it resulted from coercion or inducement, which need
occur prior to the taking of the statement – in which case the court must
establish such facts before taking recording a statement from an accused.
It must be explained to the accused that they are under no obligation to
give statement as this will be used against them.
- The statement should be recorded in the language in which the accused
gives it and translated into a court language.
- It should be read back to the accused person who must indicate whether or
not they agree with what is recorded; they should then sign or thumbprint
it
- Where a confession has been duly taken from the accused, the
prosecution, depending on the evidence that they have may then seek to
produce that confession as evidence
- They must inform the court of this intention and the accused will then be
required to indicate to the court whether or not they have any objection to
the said production
- If the accused person has no objection then the statement will be produced
where the accused opposes the production then the court will conduct a
trial within a trial whose main objective will be to establish the
circumstances under which the statement was taken
- The main trial will therefore be interrupted and in the court file, the
judicial officer will indicate that a trial within a trial is commenced.
- The prosecution will then call witnesses relating to the manner, conditions
and circumstances under which the statement was recorded.
- The witnesses will be labeled as PW1 up to the last the witness similar to
the manner in which the trial is conducted
- The Witnesses will be examined in chief, cross-examined and re-examined
- After the close of the prosecution case, the court will not enter a ruling;
instead the defense will be given opportunity to adduce their evidence; at
the end of the defense case the court will make a ruling
- The ruling will limit itself to the issues raised during the trial within trial
and will either allow or disallow the production of the statement
- Where the court rules that the statement was made voluntarily by the
accused then the witnesses who procured the statement shall resume his
stand in the main trial and produce it accordingly.
- The practice is that during the trial within trial the disputed statement
should not be read out and that it is only after a ruling favoring its
production that it can then be read out.
- On production the accused or defense still will have the opportunity to
cross-examine the witness and more so on the contents of the statement.
 33

Identification and Production of Exhibits

- Where any recoveries have been made in the course of investigations, the
prosecution together with the investigator will determine whether or not
to use them in the course of trial bearing in mind their relevance
- Production of exhibits before the courts is done by the officer who made
recoveries; since most criminal cases start with key witnesses; those
witnesses are required to identify such exhibits; at this stage, the exhibits
will be marked for identification ie. MFI 1,2,3 etc the exhibits will then be
shown to all other witnesses who may need to identify them
- The officer who made the recoveries and in whose custody the exhibits
were bien held prior to the trial will then produce them at which point they
will be marked as Exhibit 1,2,3 etc
- Exhibits once produced before the courts must be properly stored and
should not be tampered with until the end of the trial

Return / Destruction of Exhibits

- The general rule is that at the end of trial the exhibits should be returned
to their owners where there is no dispute as to ownership
- Where there is a dispute on ownership in a criminal court then the parties
disputing will go before a civil court inter-pleader proceedings to
determine ownership
- It is also a general practice that exhibits that are bulky or delicate or
perishable and whose storage may be problematic can be returned to the
owners once they have been produced but before the trial ends
- Exhibits that amount to contraband goods are usually forfeited to the
state; those that are illegal and dangerous such as drugs are destroyed by
the court. The court must preside over the destruction of such exhibits;
depending on the quantities and level of security threats such exhibits
must be destroyed by the trial court not withstanding the possibility of
appeals; in all other cases destruction and forfeiture should only occur
after 14 days when rights of appeal has lapsed.

THE SCENE OF CRIME

- A judicial officer requires imagination as witnesses give evidence he must
conjure up a picture of the scene
- It is important that in each case the judicial officer clearly understands
what actually happened; in most cases witnesses are able to give clear
evidence but there may arise cases of confusion on even dispute
- Either the prosecution, the defense may apply to the court or the court on
its own motion may require that the visit to the scene of crime be made to
the trial court
- In Olora and others v R 1956 23 EACA 49 it was held that a magistrate
exercising his discretion to refuse an application by the defense to visit the
scene cannot be said to act un-judiciously
 34

- The visit is usually necessitated by contention on various factual matters

relating to the scene which can readily be verified upon such visit and
which cannot easily be resolved by examination of witnesses.
- Irrespective of who makes the application all parties should be informed
and facilitated to attend the visit.
- Hoareau v R 1962 EA 644, a magistrate hearing a theft case visited the
scene after the close of both prosecution and defense cases accompanied
by the prosecutor but not the accused or advocate; the court of appeal held
that this procedure was fatally irregular and that it offended the principle
that justice should not only be done but seen to be done
- Any witnesses whose evidence is already before the court but who may be
useful at the scene may be recalled.
- The procedure at the scene will be the same as that inside a court room
and the evidence must be recorded; parties must be given opportunity to
examine witnesses.
- Closely related to the scene of crime are documentary evidence such as
sketch-plans, which if prepared carefully will often save the court a visit to
the scene;
- It is good practice to establish early on in the case whether or not the
prosecution will produce a sketch plan which can be show to witnesses as
they give evidence.
- R V Mohammed (1939) 6 EACA 97 – the court of appeal said that it was
desirable in cases where roads, places, times and distances may be of
importance, at once to prepare a sketch plan to record immediately and as
accurate as possible draw what the investigating officer observes on the
spot and is shown to witnesses.
- Other items related to the scene etc are photographs of the scene,
handwriting specimens and other evidence produced by the experts
- They must be produced by the persons who drew or took them unless the
court gives leave or otherwise and they should be clear and relate to the
offence charged
- Where there is any objection to the production of such documentary
evidence then the court will make a ruling to determine
- Demonstration – this may arise where a witness is asked to demonstrate
or estimate distances etc; they must be done in the presence of the
accused, See Poole v R 1960 EA 644
- Accuracy of estimates can be ensured by providing specific distances
measured from various areas of the court room or court house this could
be done by way of a chart – it should not be taken for granted that the
judicial officer has an acute sense of estimation of distances.

TRANSFER OF CASES
- Sections 78-81 of the CPC makes provision for the transfer of cases from
one court to another – these powers are exercised by the High court of
magistrate of first class jurisdiction
 35

- Section 79 provides that a magistrate of 1 st class may transfer a case of

which he has taken cognizance to any
- May direct or empower a magistrate holding a subordinate court of second
class who has taken cognizance of a case and whether evidence has been
taken in that case or not, to transfer it, for trial to himself or to any other
specific magistrate within the local limits of his jurisdiction who is
competent to try the accused and that magistrate shall dispose of case
accordingly
- Section 80 may provision for the transfers of part-heard cases, where from
evidence it appears to warrant a presumption that the case is one which
should be tried by another magistrate, he shall stay the proceeding
submits the case with a brief report to a 1st class magistrate
- Section 81 provides for transfer where it is made to appear to the High
court
a. that a fair and impartial trial cannot be heard in any criminal court
subordinate thereto; fairness and impartiality is at the heart of criminal
trials and it is therefore provided that an accused is entitled to trial
before an impartial tribunal; therefore any question of bias or
likelihood is taken seriously
b. a judicial officer is therefore expected to disqualify themselves where
they know of any conflict that might arise either by reason of their
intimate knowledge

- Where a magistrate fails to disclose such interest any party seized of such
knowledge may apply for disqualification of the judicial officer.
- John Brown Shilenje v R Cr Appeal 80 of 1980 the test of reasonable
apprehension was stated by Trevelyan J – “reasonable apprehension the
application or any right thinking persons mind that a fair trial might not
be held before the magistrate” mere allegations will not suffice there must
be reasonable grounds for the allegations
- That some question of law of unusual difficulty is bound to arise; this does
not amount to an appeal but is a mechanism to enable the most competent
court to determine a legal question at the earliest opportunity possible.
- That a view of the place in or near which any offence has been committed
may be required of the satisfactory trial of the offence; or
- That an order under this section 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
provisions of this code

SECTION 200 OF THE CPC

- The subsection 1 makes provision for cases that are part-heard by
magistrates who subsequently cease to have jurisdiction through whatever
means a magistrate succeeding such a magistrate may;
 36

a. deliver judgment that has been written and signed but not delivered by
his predecessor
b. where judgment has not been written and signed by his predecessor, on
the evidence recorded by that predecessor or re-summon the witnesses
and recommence trial

- subsection 2 makes provision where judgment has been delivered then

succeeding magistrate is empowered to give sentence or any other
- subsection 3 makes provision for the accused to demand that any
witnesses be re-summoned where part of the evidence was recorded by
another magistrate
- subsection 4 enables the High court to set aside conviction and order new
trial where it arises from evidence that was not wholly recorded the
convicted court and where in the opinion of the High Court that material
prejudice has been occasioned to the accused thereby

Open Court
- section 77 makes provision that the place at which a criminal court is held
shall be held for the purposes of trying an offence shall be deemed to be an
open court to which the public generally may have access so far as it can
conveniently contain them; there is a provision enabling the court to order
at any stage of the trial that the public generally or any particular person
shall not have access to or remain in the room or building used by the
court
- Mundia and others v R (1955) 22 EACA 417 arising during Mau Mau
emergency, the 1st accused was a chief. The magistrate heard the evidence
and adjourned
- It was held that apart from the provisions in the CPC, there is inherent
jurisdiction to exclude the public where this becomes necessary in order to
administer justice
- But justice must be seen to be done and the discretion under the CPC and
the inherent power are not to be used lightly
- Thery should only be exercised for a most compelling reason
- Exclusion of the public is justified where the administration fo justice
would be rendered impracticable by the presence of the public either
because
a. the case could not be effectively be tried because of possible violence to
witnesses or to other persons taking part in the trial
b. or because the parties entitled to justice would reasonably be deterred
b y publicity from seeking justice at the hands of the court

- A hearing in camera may also be justified where the hearing involves a

secret process
- Where the security of the state and the public generally would be
compromised by a public hearing
 37

- The burden is upon the party seeking to oust the ordinary procedure to
show that he haring in camera is necessary, proof can be by way of
affidavit.
- Judges chambers – trial can be held as long as they are treated as open
court to which members of the public have access – Willy John V R (1956)
23 EACA 509; it was held that nothing wrong with trial held in the
Cambers of the Chief Justice of Seychelles even though no member of the
public was present.
- Section 77(2) of the CPC makes it mandatory for all trials relating to sexual
offences and those found to be instance to be held in camera and further
makes it an offence to publish by whatever means the particulars which
may lead to the identification of the victims or the pictures of the victim –
further contravention of this is punishable by a fine not exceeding KShs
100,000 in the case of an individual and KShs 500,000 for a corporate
offender

JUDGEMENT
- At the end of trial the judicial officer shall proceed to write the judgment of
the court
- Section 169 of the CPC provides that each and every judgment shall be
written by or under the direction of the presiding officer of the court in the
language of the court
- Shall contain the point or points for determination, the decision thereon
and the reason for the decision
- Shall be dated and signed by the presiding officer in open court at the time
of pronouncement
- In the case of conviction the judgment shall specify the offence and the
section of the law creating it, which the accused is convicted and the
punishment
- In the case of an acquittal, the judgment shall state the offence of which
the accused is acquitted and direct that the accused be set at liberty
- The accused person to be given a copy of the judgment or a translation. Act
NO. 5 of 2003 – given at a fee
- The first paragraph of the judgment should contain a brief statement of
the offence, together with the brief particulars
- Secondly, the next paragraph should contain a summary of the evidence of
the prosecution – it should be in narrative or story form – so it should not
be a summary of the evidence related by each and every witness instead
their evidence should be embodied in one story with reference being made
where there are differences or contradictions
- Thirdly, the next paragraph should be a summary of the defense case.
 38

- Corroboration - In many criminal cases it is required

- the Rules of evidence must be strictly followed; in terms of writing
judgement and in terms of analyzing and making conclusions
- the issue of the accused person’s character may also arise. Evidence of the
accused persons good character is admissible on his behalf. Unless the
bad character is brought into issues only then can it be considered.
- Where the accused is alleged to have told lies does not necessarily prove
the correctness of the facts that are then existing ie doesn’t mean what
prosecution is saying is true
- Circumstancial evidence; their probative value must be assessed by the
court and the court must take into account and indicate why they are
relying on the circumstancial evidence. Ilanda v R (1960) EA 780. For the
evidence to be relied on there must be no other explanation possible than
that the accused is guilty
- Section 168 ; delivery of the judgment
a. in open court either immediately or some time after close of trial and in
the latter is where notice is given to all the parties of the reserved date.
b. the prosecution or defense can make application for whole judgment to
be read
c. accused person is required to attend delivery of judgment unless
attendance has been dispensed with during the trial or if there is no
provision for imprisonment or where the accused person is being
acquitted.

- no alterations to be made after delivery of judgment; any mistakes can

only be rectified by referring matter for review before the High Court
- R v Gikunja (1948) 23 1 KLR 43; the magistrate added a few notes to the
signed judgment with the explanation that he wished to consider points of
law which he felt could not have been understood the accused. The court of
appeal disapproving of this practice held that a judgment should contain
all the reasons which acted on a judges mind that led to him coming to the
final verdict.
- Not until judgment is given that a sentence is then given. Judgment is
different from sentencing process
- A judgment will never contain a sentence.

CRIMINAL PROCEDURE

Lecture 8 24th June 2006

EXPERT WITNESSES
 39

These are witnesses who assist the court in areas of expertise such as medical
reports, ballistic reports, handwriting experts, government analysts – its not in
all cases that expert witnesses are necessary it is only in some cases i.e. where a
firearm is used a ballistic expert, handwriting a handwriting expert.

The general rule of practice is that expert witnesses should be given priority over
other witnesses. This is the practice irrespective of whether he is the next witness
to be called logically

The evidence of such witnesses may be challenged by other experts. One can be
challenged by another expert. It is not common in Kenya as we have not
developed the norm of people challenging expert evidence. For example in rape
and defilement a medical report is required which indicates about blood and
semen tests but in developed countries they require DNA testing.

Trial within a Trial

This is with regard to confessions. The general rule is that any statement whether
written or oral by an accused person relating to the charge against him is
admissible in evidence against him.

The courts are however particularly careful about statement made to police
offices as a result of the English courts developed what are now known as judges
rules to be followed by police officers whenever they wish to take statements from
an accused – the procedure is largely governed by law of evidence.

Section 25 of the Evidence Act defines confession as “comprising words or

conduct, or a combination or words and conduct, from which whether taken ..

Principally the law in Kenya has changed since the introduction of the Criminal
Law Amendment Act No. 5 of 2003 Section 25A of the Evidence Act provides that
A confession or any admission of a fact tending to the proof of guilt made by an
accused person is not admissible and not be proved against such a person unless
it is made in court. The effect of the provision is to remove confessions from the
mandate of police officers.

Since the introduction of the said amendment there has been differing opinions
on its suitability
Human rights activist have hailed the provisions as a s step forward in limited the
opportunity for the torture suspects by the police

Judicial officers have been uneasy about a provision that requires them to
perform investigation functions and have pointed out the undesirability of
judicial officers performing such a function that may lead to a conflict of
interests. The police have argued that since the amendment the re has been a
slow down in investigations as well as an escalation of crimes.
 40

The problems posed by the amendment have lead to another proposed

amendment i.e. The statute law (Miscellaneous Amendment) Bill 2005 which
proposes to amend Section 25A of the Evidence Act as follows:
(i) Delete the words in court and substitute thereof the words “before a
judge, a magistrate or a police officer (other than the investigation
officer) being an officer not below the rank of Chief Inspector of Police.
(ii) The Attorney General shall make rules governing the making of a
confession in all instances where the confession is not made in court.

The proposed Bill has attracted criticisms from civil society groups who contend
that it is a draw back to the progress made by ct No. 5 of 2003 and maintaining
their concern that the police will employ torture, threat and other undesirable
and illegal tactics to obtain confessions should the amendment be passed.

Confessions cause a major problem in our system because, the burden of proving
a criminal case is on the prosecution, further the accused is protected from being
compelled to give evidence against himself; and yet ideally a confession if
properly taken would be the best evidence against he accused; note must also be
taken of the fact that even where eh police do not produce statements they may
still produce evidence such as recoveries and arrests made arising from such
confessions.

Historically due to lack of proper safeguards extraction of confessions from

accused persons has been characterised by systemic …

It must be noted that he current provisions presume that there is no need for
rules or guidelines when confessions are taken before a court. this raises the
likelihood of different standards being applied by different courts and where a
dispute arises then it will be difficult to decide with certainty what ought to have
been done in the absence of such rules governing how confessions should be
taken before the courts. Nonetheless it is expected that should here be a dispute
that the courts will apply the principles already developed with regard to
confessions previously taken by police officers.

Therefore even the current status the accused may therefore dispute a statement
if it was not given voluntarily i.e. if it resulted from coercion or inducement which
may occur prior to the taking of the statement in which case the court must
establish such facts before taking recording a statement from an accused. It is
possible to coerce the accused person and take them to court to record a
statement. If this happens there are no mechanisms to lay out what precautions
the court can take when an accused is taken before the court to record a
statement. The court should establish that there was no coercion before the
accused was brought to them.

It must be explained to the accused that they tare under no obligation to give the
statement but that if they do give it then it can be used in evidence against them.
 41

It is important that the statement should be recorded in the language in which

the accused gives it and translated into a court language. It should be read back
to the accused person who must indicate whether or not they agree with the
statement as recorded, they should then sign or thumbprint it.

Where a confession has been duly taken from the accused person, the
prosecution, depending on the evidence that they have may seek to produce that
confession as evidence. After determining who is to be charged, they don’t have
to produce every statement under caution or inquiry or confession, the police
usually do not have very good evidence.

The prosecution must inform the court of their intention to produce the
confession and then the accused will be required to indicate to the court whether
or not they have any objection to the said production. If the accused has no
objection then the statement will be produced where the accused opposes the
production then the court will conduct a trial within a trial whose main objective
will be to establish the circumstances under which the statement was taken. The
main trial will be interrupted and in the court file, the judicial officer will indicate
that a trial within a trial is commenced. if the trial within trial will start with the
witness relating to the manner, conditions and circumstances under which the
statement was recorded. The witnesses will be examined in chief, cross examined
and re-examined.

After the close of the prosecution case, the court will not enter a ruling; instead
the defence will be given opportunity to adduce their evidence, at the end of the
defence case the court will make a ruling. The ruling will limit itself to the issues
raised during the trial within trial and will either allow or disallow the production
of the statement. The magistrate has to determine how the statement was taken.
Where the court rules that the statement was made voluntarily by the accused
then the witn3esses who produced the statement shall resume his stand in the
main trial; and produce it accordingly.

The practice is that during trial within trial the disputed statement should not be
read out and that it is only after a ruling favouring its production that it can then
be read out. On production the accused/defence will still have the opportunity to
cross-examine the witness and more so on the contents of the statement.

EXHIBITS

Identification and production of exhibits

Where any recoveries have been made in the cause of investigations, the
prosecution together with the investigator will determine whether or not to use
them in the cause of the trial bearing in mind their relevance. Production of
exhibits before the courts is done by the officer who made recoveries; since most
 42

criminal cases start with key witnesses; those witnesses are required to identify
such exhibits; at this stage the exhibits will be marked for identification i.e. MFI
1,2,3, ETC. The exhibits will then be shown to all other witnesses who may need
to identify them. The officer who made the recoveries and in whose custody the
exhibits were being held prior to the trial will then produce them at which point
they will be marked as Exhibit 1,2,3 etc.

Exhibits once produced before the courts must be properly stored and should not
be tampered with until the end of trial.

Return and Destruction of Exhibits

The general rule is that at the end of trial the exhibits should be returned to their
owners where there is no dispute as to ownership. Where there is a dispute on
ownership in a criminal court then the parties disputing will go before a civil
court for inter-pleader proceedings to determine ownership. It is also a general
practice that exhibits that are bulky or delicate or perishable and whose storage
may be problematic can be returned to their owners once they have been
produced but before the trial ends. In cases of bulk where there is no storage
space, the court can make an order for return of those goods, contraband goods
are usually forfeited to the state those that are illegal and dangerous such as
drugs are destroyed by the court. the court must preside over the destruction of
such exhibits; depending on the quantities and level of security threats such
exhibits will be destroyed by the trial court not withstanding the possibility of
appeal in all other cases destruction and forfeiture should only occur after 14 days
when the Right of Appeal has lapsed. If exhibits are destroyed before the appeal
period the accused person may argue at appeal that destruction of exhibits is an
impediment to their appeal so the courts must be careful in deciding to destroy
exhibits before the trial ends.

Scenes of Crime

A judicial officer is required to have a high level of imagination as witnesses give

evidence he must conjure up a picture of the scene. It is important that in each
case the judicial officer clearly understands what actually happened; in most
cases witnesses are able to give clear evidence but there may arise cases of
confusion or even dispute. Either the prosecution , the defence may apply to the
court or the court on its own motion may require that a visit to the scene of crime
be made by the trial court. In Olora and others v R it was held that a magistrate
exercising his discretion can refuse an application by the defence to visit the
crime scene. The visit is usually necessitated by contention on various factual
matters relating to the scene which can readily be verified upon such visit and
will not easily be resolved by examination of witnesses. Irrespective of who
makes the application all parties should be informed and facilitated to attend to
the visit.
 43

Hoareau v R 1962 EA 644, a magistrate hearing a theft case visited the scene after
the close of both prosecution and defence cases accompanied by the prosecution
but not the accused or advocate; the CA held that his procedure was fatally
irregular and that it offended the principle that justice should not only be done
but should be seen to be done. Any witnesses whose evidence is already before
the court but who may be useful at the scene may be recalled.

The procedure at the scene will be the same as that inside a court room and the
evidence must be recorded; parties must be given opportunity to examine
witnesses.

Closely related to scenes of crime are documentary evidence such as sketch –

plans which if prepared carefully will often save the court a visit to the scene. It is
good practice to establish early on in the case whether or not the prosecution will
produce a sketch-plan which can then be shown to witnesses as they given
evidence. If there is a sketch plan all the witnesses must be shown.

R v Mohamed the CA said that it was desirable in cases where roads, places, times
and distances may be of importance, record immediately and as accurately as
possible draw what of at once to prepare a sketch plan to be the investigating
officers observe on the spot and is shown to witnesses

Other items related to the scene etc are photographs of the scene, handwriting
specimens and other evidence produced by experts. They must be produced by
the persons who dr3ew or took them unless the court gives leave otherwise and
they should be clear and relate to the offence charged. Where there is any
objection to the production of such documentary evidence then the court will
make a ruling to determine.

Demonstration – this may arise where a witness is asked to demonstrate or

estimate distances etc; they must be done in the presence of the accused – see
Poole v R 1960 EA 644. Accuracy of estimates can be ensured by providing
specific distances measured form various areas of the court room or court house
this could be done by way of a charge it should not be taken for granted that the
judicial officer has an acute sense of estimation of distances.

Sections 78 – 81 of the CPC makes provisions for transfer of cases from one court
to another – these powers are exercised by the High Court or magistrate of 1 st
class jurisdiction. Section 79 provides that a magistrate of 1dst class may transfer
a case of 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 courts jurisdiction and may direct or empower a magistrate holding
a subordinate court of second class who has taken cognizance of a case and
whether evidence been taken in that case or not, to transfer it for trial to himself
or to any other magistrate within the local limits of his jurisdiction who is
 44

competent to try the accused and the magistrate shall dispose of the case
accordingly.

Section 80 makes provisions for ht transfer of part heard cases, where from the
evidence it appears to warrant a presumption that the case is one which should
be tried by another magistrate, he shall stay the proceedings submit the case with
a brief report to a 1st Class magistrate empowered in direct transfer.

Section 81 deals with transfer by HC - that a fair an impartial trial cannot be had
in any criminal court subordinate thereto; fairness and impartiality is at the heart
of criminal trials and it is therefore provided that an accused is entitled to trial
before an impartial tribunal; therefore any question of bias or its likelihood is
taken seriously.

A judicial officer is therefore expected to disqualify themselves where they know

of any conflict that might arise either by reason of their intimate knowledge of
facts or relation to the parties. Where a magistrates fails to disclose such interest,
any party seized of such knowledge may apply for the disqualification of the
judicial officer. John Brown Shilenje v R CR Appeal 180 of 1980 the test of
reasonable apprehension was stated by Trevelyan – “reasonable apprehension in
the applicants or any right thinking persons mind that a fair trial might not be
heard before the magistrate mere allegations will not suffice the re must be
reasonable grounds for the allegations”.

The HC may transfer a case where there is

(a) some question of law of unusual difficulty is likely to arise; this does not
amount ano an appeal but is a mechanism to enable the most competent court to
determine a legal question at the earliest opportunity possible. That a view of the
place in or near which any offence has been committed may be required for the
satisfactory trial of the offence; or that an order under this section 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 this code.

Section 200 of CPC

There are provisions for cases that are part-heard by magistrates who
subsequently cease to have jurisdiction through whatever means a magistrate
succeeding such a magistrate may
(a) Deliver judgment that has been written and signed but no delivered by
his predecessor;
(b) Where judgment has not been written and signed by his predecessor,
on the evidence recorded by that predecessor, or re-summon the
witnesses and recommence trial

Subsection 2 makes provisions where judgment has been delivered, the

succeeding magistrate is empowered to sentence or give any other or subsection
3 makes provisions for the accused to demand that any witnesses be re-
summoned where part of the evidence was recorded by another magistrate.
 45

Subsection 4 enables the HC to set aside convictions and order a new trial where
it arises from evidence that it was not wholly recorded and the convicted court
and where in the opinion of the High Court that material prejudice has been
occasioned to the accused thereby.

OPEN COURT
Section 77 makes provision that the place at which a criminal is held shall be held
for the purposes of trying an offence shall be deemed to be an open court to
which the public generally may have access so far as it can conveniently contain
them; there is a provision enabling the court to order at any stage of the trial that
the public generally or any particular person shall not have access to or rem in
the room or building used by the court.

In Mundia and others v R 1955 22 EACA 417 arising during the Mau Mau
emergency, the 1st Accused … the court held that apart from the provisions in the
CPC that require that a court be opened there is an inherent jurisdiction to
exclude the public where this becomes necessary in order to administer justice.
But justice must be seen to be done and the discretion under the CPC and the
inherent power are not to be used lightly . they should only be exercised for a
most compelling reason. Exclusion of the public is justified where the
administration of justice would be rendered impracticable by the presence of the
public either because the case could not be effectively be tried because of possible
violence to witnesses or to other persons taking part in the trial or because the
parties entitled to justice would reasonable be deterred by publicity from seeking
relief at the hands of the court.

A hearing in camera may also be justified where this involves a secret process;
where the security of the state and the public generally would be compromised by
a public hearing. The burden is upon the party seeking to outs the ordinary
p9rocedure to show that the hearing in camera necessary, proof can by way of
affidavit.

Judges chambers – trial can be held as long as they are treated as open court to
which members of the public have access – Will John v R, 1956 23 EACA 509 it
was held that nothing wrong with trial that held in the chambers of the Chief
Justice of Seychelles even though no member of the public was present.

Section 77(2) of the CPC makes it mandatory for all trials relating to sexual
offences and though found to be insane to be held in camera and further makes it
an offence to public by whatever means the particulars which may lead to the
identification of the victims or the picture of the victim – further contravention of
this punishable by a fine not exceeding Kshs 100,000 in the case of an individual
and Kshs. 500,000 for a corporation.
 46

JUDGMENT
At the end of trial the judicial officer shall proceed to write the judgment of the
court
Section 169 provides that each and every judgment shall be written by or under
the direction of the presiding officer of the court in the language of the court. The
judgment shall contain the points for determination, the decision thereon and the
reasons for the decision. It shall be dated and signed by the presiding officer in
open court, at the time of pronouncement. In the case of a conviction the
judgment shall specify the offence and the section of the law creating it, which the
accused is convicted and the punishment.

In case of an acquittal the judgment shall state the offence of which the accused is
acquitted and direct that the accused be set at liberty. The accused shall be given
a copy of the judgment or a translation.

The first paragraph of the judgment should contain a brief statement of the
offence together with the brief particulars. Secondly the next paragraph should
contain a summary of the evidence of the prosecution it should be in narrative for
so it should not be a summary of the evidence related by each and every witness
instead their evidence should be embodied in one story with reference being
made where there are differences or contradictions.

Thirdly the next paragraph should be a summary of the defence case – usually
one should state the evidence of the accused. Make it clear that there is some
convergence. Where there are differences it should be indicated in the
paragraph. Reference should be made of contested or uncontested matters in the
judgment.

The magistrate should not deal with irrelevancies but should proceed to the crux
of the matter – what are the issues? They must appreciate the issues before the
court, any discrepancy must be considered at this stage. They must expose the
evidence to scrutiny before judgment.

Conclusions based on the analysis of the evidence and reasons for the
conclusions. Whatever reasons one gives must be anchored to the law. the
reasoning must be legally competent.

The judgment must in no uncertain terms give a verdict. The verdict must be in
respect of accused person in each and every count. Any unusual circumstances
arising in the course of trial should be recorded where relevant. One should
make reference to the unusual circumstances in the judgment.

One must look at the standards of proof, in criminal cases it is beyond reasonable
doubt. In many criminal cases corroboration is required. The judgment must
make reference to the corroboration. Rules of evidence must be followed. For
 47

example where there was a confession, the judgment must indicate that there was
a confession.

The issue of the accused persons character, evidence of accused bad character
must be excluded unless the accused bring character into issue. The judgment
must indicate who the accused character became an issue.

It is easy to be tempted to think that because the accused is a liar.

Circumstantial evidence probative value must be assessed by the court. Elander v

R it was held that in a case depending on circumstantial evidence court must find
that inculpatory facts are consistent with the … there must be no other
explanation other than that the accuse is guilty.

DELIVERY OF JUDGMENT

S. 168 – substance of judgment shall be explained in open court. the practice is

that unless it is very short or straightforward most judgments are reserved
judgments. The rules are that the prosecution or the defence can make an
application for the whole judgment to be read. The courts read the whole
judgment. One can read the key issues arising in judgement such as the
judgment and then give copies of the judgment for parties to peruse at their own
time. Where the accused is being acquitted

No alterations can be made on the judgment after delivery. The court cannot on
its own review the case, after delivery of judgment the court becomes functus
officio

In R v Gikunja (1948) 23 1 KLR 43 – the magistrate added a few notes to his

signed judgment. The Kenya Supreme Court held that a judgement should
contain all the reason which have acted on the magistrate’s mind before coming
to his conclusion. There is no other forum for a magistrate after reading
judgment to explain the judgment.

NOTE – Until judgment has been given and a decision made does the court
proceed to give a sentence. Judgment does not contain a sentence. Judgment is
about determining the verdict.

CRIMINAL PROCEDURE

Lecture 9 27th June 2006

 48

SENTENCING

 Historically sentencing has evolved from a very retributive and primitive

practice to a more humane approach.

 Essentially this developed as a result of various social scientists,

criminologists and penologists who have argued that there are many
factors that contribute to one becoming a criminal and hence the need to
use a more individualized approach in sentencing as opposed to
considering that all criminals act out of their own free rational will and
thereby using the sentencing process to reward them for the choices that
they have made

 Broadly speaking sentencing has the following purposes;

 To act as punishment

 To act as a form of treatment

 To act as a deterrent factor

 As a measure of protection for society

 Most sentences embody all the four aspects each is important

 In summary sentence will therefore punish the offender and is therefore

seen as a crime prevention mechanism.

 In Kenya we have provisions for both mandatory and discretionary

sentencing

 All offences punishable by death do not give room for discretion and the
death sentence once awarded and upheld up to the Court of Appeal can
only be commuted by the president in exercise of his constitutional powers
of pardon

 In all other cases the courts have discretion which must take into account
the maximum sentence as provided by statute/penal code.

 Having given judgment the judicial officer must then go into the process of
awarding sentence which includes the following:

Section 216 provides that the court may before passing sentence or making
an order against an accused person, receive such evidence as it thinks fit in
order to inform itself as to the sentence or order properly to be passed or
 49

made. Arising from this provision the practice is for the courts to give the
prosecution an opportunity to produce records of the offenders past record
is any additionally the prosecution are allowed to address the court before
sentence is awarded. The offender/defence may challenge the records
produced or require sworn evidence on the general address by the
prosecutor.

Where the records are challenged then the prosecutor will lead evidence to
prove their authenticity. A similar provision is made under Section 329 of
CPC with regard to trials before The High Court. further this section has
been amended to include victim impact statements. Section 329B applies
to an offence that is being dealt with by any court, where the offence
results in the death of or actual physical bodily harm to any person. It can
therefore …

Victim Impact Statement means a statement containing particulars of

(a) In the case of a primary victim, any personal harm suffered by the
victim as a direct result of the offence; or
(b) In the case of a family victim, the impact of the primary victims
death on the members of the primary victims immediate family’
members of the immediate family as defined as
(a) The victim’s spouse
(b) The victims de facto spouse being a person who has
cohabited with the victim for at least 2 years
(c) A parent, guardian or step parent of the victim
(d) Child or step child of the victim or some other child of whom
the victim is a guardian
(e) A brother, sister, step brother or step sister to the victim.

A primary victim is a person against whom the offence was committed or a

person against whom the offence was committed or a person who was a witness
to the act of actual or threatened violence, the death or the infliction of bodily
harm concerned, being a person who has suffered personal harm as a direct
result of the offence or a personal harm…

Section 329C makes it discretionary upon the court to determine whether or not
to receive and adopt a victim impact statement, after conviction and before
sentence. Where the primary victim has died as a direct result of the offence then
the court may receive a statement from a family victim. The impact statement
must be in writing and such other requirements as per the rules (rules are to be
made by the Chief Justice).

The court shall not accept a victim impact statement unless it has been filed by or
on behalf of the victim to whom it relates (where the victim is incapable of
preparing the statement it may be prepared on their behalf by a family victim); or
 50

by an on behalf of the prosecutor and shall only consider a statement by a family

victim if it considers it appropriate to do so.

The court shall only consider a statement by a family victim if it considers it

appropriate to do so.

Mitigation of the offender

It is a well established practice that the court should consider mitigation from the
offender; it is at this juncture that the offender has opportunity to inform the
court of his personal circumstances that could mitigate against a
harsh/inappropriate sentence.

Having heard the prosecution, including the victim impact statement if any, and
the accused, the court will then be in apposition to award a suitable sentence.

Factors the court considers in sentencing

The cause of crime – there are various socio economic factors that may lead to
crime i.e. poverty, drunkenness, avarice, greed, anger, lust opportunity, habit
insanity ignorance. Unemployment, broken home, psychological problems etc;
whereas it is not always possible to tell why a crime is committed where motive
can be established it ought to be taken into consideration.

The magnitude of the crime – the level of seriousness and gravity of other offence
must be taken into account including the impact on the victim and society
generally

Prevalence and type of crime – what is the frequency or rarity of the type of
crime, is it comparatively more prevalent in one area, is there a sudden spare in
the type of crime

Aggravating or extenuating circumstances – these are circumstances that are

peculiar to the offence e.g. opportunity provocation.

Accused – circumstances, character, attitude etc these are issues which would
ordinarily arise during mitigation.

Previous conviction – this will be raised by prosecution,- the court should

consider whether they are similar as well as their relevance in any case, they
should the court a good indication of the offenders previous interaction with the
criminal justice system.

In most cases the courts tend to be more lenient to first offenders.

 51

The court will also consider uniformity in approach to sentencing. This is in

order to avoid disparities by the same court as well as in comparison to other
courts in sentencing offence of similar nature etc.

This should be supported by a clear sentencing policy that is known to judicial

offices.

Such a policy will generally enhance the credibility of courts, offenders will know
what to expect and in a sense it should therefore act as a deterrent factor when
offenders can with some amount of certainty predict the kind of sentences that
their offences are likely to attract.

TYPES OF SENTENCES

Section 24 of the Penal Code makes provision for the various types of sentences
that courts may award

Death is mandatory for murder, treason, robbery with violence or attempted

robbery with violence. It an only be imposed upon an adult where a person under
18 years is convicted of an offence that carries a mandatory death sentence, then
they will be detained at the presidents pleasure in which case the presiding judge
is required to forward a copy of notes of evidence taken on the trial, wit ha report
in writing signed by him containing any recommendation or observations on the
case as he may think fit. The sentence cannot be imposed on a pregnant woman.

Imprisonment – is the most popular punishment and it entails the actual

physical restrain of the offender by placing him in custody. the highest duration
is life imprisonment. It may be with or without hard labour. The purpose of
imprisonment is to restrain contain and rehabilitate the offender. The prisons
department therefore runs a number of programmes mostly skills imparting ones
such as carpentry woodwork knitting etc additionally they have counselling and
chaplaincy services for the offenders.

The court may award the sentence to be served either consecutively or

concurrently where the offender is sentenced to more than one offence. This is
where somebody is charged with more than one offence. Each count attracts
their own sentence and there is no generic sentence.

The court does not determine which prison the offender will go to. Prison
department has maximum and medium security prisons, and the offenders are
distributed to the facilities depending on the number of years of sentence, the
nature of offence and their previous records consideration may also be given to
the type of programme that the offender may be most suited for and its
availability to this end there is a reception facility that classifies and categorizes
offenders for this purpose. For example there is a reception facility at Kamiti
 52

which determines where prisoners are best suited. They don’t necessarily have to
stay at Kamiti.

The prisons department is governed by the Prisons Act which has various
provisions including dietary, disciplinary, classification etc. The Act also
significantly makes provisions for remission which any offender serving a
sentence of more than 1 month is immediately entitled to unless they have
committed breaches in prison which have lead to deductions on their remission
period. this is meant to enable the prisons department to try and achieve some
objective with an offender by waiving a third of the sentence for model prisoners.

The Act aolso makes provision for parole/remission which any offender serving a
sentence of more than 1 month is immediately entitled to unless they have
committed breaches in prison which have lead to deductions on their remission
period. the Act makes provisions for Parole, but it is not practiced in Kenya.

FINES
Fines are rarely imposed in felonies but are frequently utilised in misdemeanours
an statutory offences – the usual practice is for the amount of fine to be specified
in the statute or Penal Code and it can be specified either as a minimum or a
maximum or a combination of both.

Section 28 of Penal Code makes provision for those cases where the amount of
fine is not specified and it is required that the fine should not be excessive.

Section 28(b) provides a table to be used by judicial officers where a fine is

awarded and in default an imprisonment term is provided – the provisions give
the maximum fine and maximum default period. this is just a guideline to enable
courts not to overshoot.

The award of a fine should not be denied on the basis of the offenders financial
status.

Mita v R – the appellant an air hostess was convicted on her own plead of assault
causing actual bodily harm for biting the complainant on the chin; the
magistrate sentence her to 2 months imprisonment without option of fine,
although she was a first offender and was contrite according to the magistrate a
fine would not have served any purpose as the appellant appeared to be earning a
lot of money. Madam J held that irrespective of their financial standing it is not
wrong to impose a fine unless the circumstances of the case precludes the
imposition of such punishment. The contrary cannot be correct, otherwise every
well paid accused person irrespective of the nature of the offence would be sent to
prison by the courts without the option of a fine.

Forfeiture – Section 29 of the Penal Code makes provision for forfeiture for
offences committed under Sections 118 and 119 of the PC where the property the
 53

subject of which the order has been given cannot be traced then the court will
assess the value and require the offender to forfeit such amount to court.

Compensation – Section 31 empowers the court to order an offender to

compensate any person injured by his offence, either in addition to or in lieu of
any other penalty – in practice criminal courts will usually on order
compensation where the monetary value is straightforward, otherwise
compensation is usually left to the civil courts to comprehensively asses.

Mukindia v R 1966 EA 425 the court of appeal observed that the powers to award
compensation should only be used in the clearest cases as when a person has
suffered a comparatively minor physical injury or has been deprived of property
or whose property has suffered damage and such deprivation or damage is of
readily ascertainable and comparative e small value.

The current practice does not take into account the fact that there are persons
who cannot afford civil proceedings and in such cases they will remain largely
uncompensated deriving satisfaction only from the knowledge that the offender
has been punished in the criminal process.

Otherwise finds on the facts proven in the case that the convicted person has by
virtue of the act constituting the offence a civil liability to the complainant or
another person. Further provisions have been made by section 175 of the CPC to
the effect that where a court imposes a fine or a sentence of which a fine forms
part or where such sentence is confirmed ion appeal, revision o

The court may order the convicted person to pay to the injured party such sums
as it considers could justly be recovered as damages in civil proceedings by the
injured party against the convicted person in respect of the civil liability
concerned. Such a court may not award an amount that is in excess of its civil
jurisdiction.

Where the court considers that the complexity of evidentiary matters affecting
the quantum of damage of evidence before it in relation t0 Such damages, the
insufficiency of evidence before it in relation t such damages or their quantum, or
the provisions of the Limitation of Actions Acts or any other circumstances,.
Where the court considers that such an order would unduly prejudice the rights
of the convicted person in respect of the civil liability, that order will not issue.

Section 177 of the CPC also makes provision for restitution of property that is
found in possession of an offender – the court may order such property to be
returned to whoever it considers to b e entitled to it, including the offender.

Further that the court may order that the property or party thereof; be applied to
the payment of fine, costs, or compensation which ought to be paid by the
offender.
 54

Security for good behaviour – Section 33 provides that an offender may be

required by the court to enter into recognizance with or without surety in
addition to any other sentence to keep the peace for a specified period.

Under Section 35 there is Absolute and Conditional Discharge – this section

provides that where having regard to the circumstance including the nature of
offence and the character of the accused that it is inexpedient to inflict
punishment and that a probation order would not be appropriate, then the court
may absolutely or conditionally discharge the offender upon the condition that
they shall not commit other offences for a period not exceeding 12 months a
breach will result in the accused being brought back to court and sentenced for
previous offence in respect of which he had been discharged.

Probation – this is the system where the offender instead of being awarded the
other sentences provided is placed under the supervision of a probation officer;
the aim of the sentence is to rehabilitate the offender while he is living in his
normal surroundings and continuing with his routine in life – it is governed by
Cap 64 Laws of Kenya.

The court before making a probation order takes into consideration the nature of
the offence, age of offender, whether he is a first offender. The magistrate will
then request for a probation officer’s report to be prepared. The report will be
prepared based on interviews with the accused, victim of crime if need be, other
persons that the probation officer considers relevant. The aim of the report is to
determine the social circumstances of the offender and whether or not the
offender would benefit from the probation. The report will usually contain a
recommendation on the suitability of the offender for probation or any other
sentence. It is then handed to the magistrate who if they accept it will explain to
the offender the terms, including an indication by the offender that they are
willing to be placed on probation and their consent must be recorded. The terms
of probation may include issues relating to residence, use of alcoholic beverages
etc.

The offender is required to signify the acceptance and willingness to abide by the
terms and conditions of the probation order. An order will then be made in the
appropriate form and signed by the offender and the court. a breach of probation
order will result in the offender being produced in court and the court may then
cancel the order an substitute probation with any other sentence.

A probationer is then released to be supervised by a specific probation officer.

There are provisions for a probationer who is moving to a different location to
transfer the order for supervision by the nearest probation officer.

Community Service Orders: replaced EMPE – made under Act NO. 10 of 1998 –
Whereas, the EMPE had been meant to reduce congestion in provisions and
provide a mechanism for enabling rehabilitation of the offender within the
 55

community, there was a lot of dissatisfaction with its application and

implementation. Under EMPE anyone who was liable for imprisonment for
term no exceeding 6 months could be place on EMPE, each locality had
designated EMPE centers which were invariably local administrative officer e.g
DO and Chiefs officers as well as the courts themselves. The offenders

Some of the complaints included that it did not lead to decongestion of prisons
and still left a lot of petty offenders in prison. It was also argued that it was
misused by administrators to service their own private works. Some of the work
carried out was mundane and had no impact for public expenditure. It was also
argued that the timing of when it could be served ran counter to the idea that one
could serve and still continue working i.e. there was no flexibility, so offenders
would still lose their jobs as a result of carrying out the punishment. There was
also disquiet with the idea that whereas this was intended to be a community
based idea …

In response to all these complaints and to the increasing numbers of prisoners

and the deterioration of prison conditions, matters were made worse when a
conference organized to discuss prison reforms was told by the H C Okubasu that
being sent to a Kenyan prison was equivalent to a prison sentence…

Section 3 of the Act provides as follows” where any person is convicted of an

offence punishable with imprisonment for a term not exceeding three years with
or without the option of fine or imprisonment for a term not exceeding three
years but for which the court determines a term of imprisonment for three years
or less, with or without the option of a fine, to be appropriate. The court may,
subject to this Act make a community service order requiring the offender to
perform community service.

(a) Community service shall c…

Types of the works carried out under the Act are

 Construction or maintenance of public roads or roads of access;
 Afforestation works;
 Environmental conservation and enhancement works;
 Projects for water conservation, management or distribution and supply;
 Maintenance work in public schools, hospitals and other public social
service amenities; works of any nature in a foster home or orphanage;
’rendering specialist or professional services in the community and for the
benefit of the community.

The court may require report from a community service officer before making an
order. The court shall not make an order unless the offender is present in court,
and there are adequate arrangements for the execution of the order. Where a
 56

report exists the court must be satisfied that the offender is a person suitable to
perform community service.

The offender must consent to being placed on Community Service Orders (CSO).

In terms of management the Act creates a National Committee whose chairman is

to be a Judge of the High Court appointed by the CJ
Members include
DPP or his nominee
PS, Provincial Administration and Internal Security or his nominee

Two persons with training and experience in the criminal justice system, one in
teaching of law and the other a magistrate of first class, both to be appointed by
the CJ.
Five members appointed by the Minister out of a list of 7 nominees by the
National Committee, two of whom shall be representatives of NGOS involved in
social welfare work registered under the NGO Coordination Act.
The National Coordinator

The committee has powers to co-opt

FUNCTIONS OF THE NATIONAL COMMITTEE

1. To advice the minister and CJ on the proper implementation of the Act;
2. Coordinate direct and supervise the work of the community service
officers;
3. Collect and collate date on the operation of this Act for the purpose of
improving the national policy on community service orders
4. advice the CJ on any need for enhanclating to revision under the CPC
so that the courts may make better use…
5. ed application of the provisions

once an offender is placed on CSO orders the offender is require to report to the
supervising officer specified in the order for assignment of work. Perform for the
period specified in the order such works at such times and place as he may be
instructed by the supervising officer. Report to the supervision officer any
changes in address that may occur from time to time.

These orders are yet to have the desired effect, prisons are still complaining of
congestion, meanwhile the national committee keeps releasing huge figures of
those supposedly under CSO.

These problems could be stemming from the fact that judicial officers are still
treating CSO in the same manner that they treated EMPE, and there awarded
them for very minor offenders as opposed to using the cut-off point of 3 years
imprisonment.
 57

The sentence is meant to be awarded in hourly terms and yet there are no clear
rules and table to assist judicial officers in determining how to march the
envisaged prison sentence and the corresponding hours.

The provision for district, divisional and location committees is made by the Act
which introduces a bureaucracy that does not exist in the judicial system, and yet
the programme is meant to be judiciary driven. It would make more sense if the
provisions were made for mandatory committees in each magisterial station
whose membership should largely reflect all the criminal justice players at the
local level including the placement agencies benefiting from CSO to be
represented.

There is very little public awareness that was created prior to and during the
implementation of the programme and yet its success depends to a large extent
on how receptive the public is towards it. This is especially so because this kind
of sentence is meant to rehabilitate the offender within the community.

Probations of Offenders Act

CSO

Borstal Institutions - there is a specific period within which children have to be

in those Borstal institutions. Shimo la Tewa and Kakamega.

Youth corrective centre at Kamiti – This has a minimum or maximum period and
has no remission. It is a militarised system but deals with young males who are
first offenders.

Approved Schools are ran by children’s departments – deal with child offenders
and children in need of care and protection. One of the criticisms is the fact that
they mix children in need of care and protection with the child offenders. They
are both for girls and boys. They are not sufficient and cater for very young
children. They have schools.

CRIMINAL PROCEDURE

Lecture 10 29th June 2006

TRIALS BEFORE THE HIGH COURT

 58

Prior to the Act No 5 of 2003, trials before the High Court were subject to
committal proceedings, which took place before a magistrate who then
committed the accused for trial before the High court if they were of the view that
the evidence contained in the committal bundles warranted it.

Key to these proceedings wee the committal bundles which essentially contained
all the evidence, including statements that the prosecution had against an
accused person for trial before the High Court. even though Act No. 5 has done
away with these proceeding, but is noteworthy that the High Court still requires
the bundles before a trial can proceed before it.

In the absence of the proceedings accused persons whose cases are exclusively
triable by the High Court to go straight to the court for plea taking in the same
manner as in the subordinate courts.

Because all cases exclusively triable by the High court are not bailable the high
court does not entertain applications for pre-trial bail. A major distinction of
high court criminal … the trials are conducted together with the aid of assessors,

Section 262 on Assessors – makes it mandatory for trials in the high court to be
aided by 3 assessors. Assessors were incorporated by the colonial system in
Kenya to enable the largely white judiciary understand the local customs and
culture of the various tribes in Kenya initially assessors were mandatory for both
civil and criminal cases where the parties were natives.
Dhalamini v King 1942 AC 583 Lord Atkin articulated the duties of an assessor “
the duty of an assessor is not simply to aid, it operates and is no doubt intended
to operate as a safeguard to natives accused of a crime and a guarantee to the
native population that their own customs and habits are not misunderstood.

Selection of assessors is covered under Section 265 of CPC provides that all
persons aged between 21-60 are eligible to serve as assessors; the following are
excluded;
1. The President members of he cabinet
2. the speaker and members of the national assembly
3. the clerk and official reporters of the national assembly
4. persons actively practicing as priests or ministers of their respective
religions
5. medical dental and legal practitioners in active practice – these does
not include nurses, clinical officers etc
6. Officers of the armed forces, members of the police force, members of
prisons services members of staff or schools probation officers
7. Permanent Secretaries MD Kenya railways telkom Kenya
8. judicial officers staff of the attorney generals chambers
9. mayors chairmen of councils, town clerks
10. persons disable by mental or bodily infirmity
11. any other persons exempted by the Attorney General
 59

section 269 of the CPC at least 7 days before trial the Registrar of the high court
may send a letter to a magistrate holding jurisdiction of 1 st class where the trial is
to be held – requesting that he summons as many persons as seem to the trial
judge to be required for the schedule trials to serve as assessors.

The summons must be in writing and must specify time and place of attendance.
Thereafter the trial judge will select which of those summoned he will use in
specific trials.

Whereas there is no provision in the CPC, the practice is that an objection too an
assessor can be raised by a particular assessor may be raised.

Ndirangu v R 1959 EA875 – the appellant in his murder trial chose to remain
mute throughout. On appeal against his conviction argued that the wife of one of
the assessors at his trial was the sister of the deceased wife and he complained
that this had therefore prejudiced him holding that such an objection on good
grounds is clearly good practice, the court went on to state that if injustice would
be occasioned by such an assessor sitting with the judge then he should be
dismissed.

Andiazi v R 1967 EA 813 – THE COURT STATED THAT WHERE AN

OBJECTION IS RASIED THE TRIAL JUDGE SHOULD INQUIRE INTO IT IN A
KIND OF TRIAL WITHIN TRIAL AND DEPENDING ON WHERE IT IS
FOUNDED OR NOT.

It would appear that to obviate any objection that an inquiry should disclose it
before trial made as to whether or not there are objections – it may also be best
for a provision or practice that assessors who know of any conflict should disclose
it before trial.

There is no limitation as to the number of times that one may serve as an assessor

As a result of lack clear provision the practice has been that a list of assessors is
kept by the various high court registries, invariably these have tended to be
persons in public service. And contrary to assessors being common persons,
some have become professional by virtue of being called upon consistently to
serve p this is certainly not a good practice and ought to be discouraged.

The judge has total discretion which must be exercised judiciously in whom he
chooses as assessors see W Y Wilken 1965 EA 286 – IF YOU ARE ASIAN
SHOULD THE ASSESSORS BE ALL ASIAN.. the court held that there was no
need for racial balance whereas it would be important to have the semblance of
the accused person identified.

The actual nature and extent of function of the assessors in criminal trial sis not
full defined by statute Gusambizi Wesonga 1948 EACA 65 – the court noted that
 60

in the exercise of any functions of assessors the court is always to apply the test of
what is fair to an accused person, keeping in mind and considering the principles
of natural justice.

The High Court trial session to start, it must start with the 3 assessors,
insignificant absence by one of them cannot nullify the trial – Assah v R [1937] 4
EACA 41

Section 322 of the CPC makes provision that at the end of the trial the judge may
sum up the evidence of both the prosecution and the defence to the assessors –
the practice has been that the judges sum up to the assessors. In the case of
Kalinga v R 1958 EA 684 – it was held as follows “the opinion of the assessors can
be of great value and assistance to a trial judge but only if they fully understand
the facts of the ase before them in relation to the relevant law. if the law is not
explained an attention not drawn to the salient facts of the case, the value of the
assessors opinions is correspondingly reduced.

Section 322 also provides that the assessors after the law has summarised the
judge is to call upon them individually to give their opinions individually and
orally, which shall be recorded by the judge. In practice they give reasons for
their opinions; as early as 1943 in the case of Pauolo Lwevola v R [1943]10 EACA
63, the court stated that such reasons become even more relevant in the event of
an appeal.

There is no provision for consultation with each other Abdalla Omer v R 1958 EA
725 and R v Mungu Atosha [1938] 5 EACA both cases established that it is
neither illegal nor irregular for the which should then be recorded or to retire to
consult but on coming back they should give their individual opinions…

Section 322(1) CPC provides that the opinion of assessors if not binding on the
judge. After the assessors have given their opinion the judge delivers judgment.

Where the judge comes to a finding on the facts which is contrary to opinion
unanimously shared by the assessors, it is good practice for him..

It has been argued that there is need to change the law, to clearly define the role
of assessors.

The law should be changed to conform to the idea of an assessor being a common
man, by limiting the number of times one may serve. There is need to examine
the value of the assessors opinion vis-à-vis the judge’s own. What value they add
to the process has been questioned, the judge can go contrary to their opinions.
Some Judges argue that they find assessors useful and it is usually good when
assessors make the same finding as the judge, this gives comfort to the judge that
he is right. there is no provision requiring the judge to state their reasons for not
taking the opinion of the assessors.
 61

Where the high court reaches a verdict of conviction they will follow the same
procedures in determining sentence as the subordinate courts, notwithstanding
the fact that in most cases, they can only award the mandatory sentence.

Act no 5 of 2003 – read

APPEALS AND REVIEWS

Cases from the subordinate courts may be subject to a first appeal before the high
court and a second appeal to the court of appeal.

Section 347 CPC provides that he first appeal may be on a matter of law and or
fact.

Section 348 CPC provides that in the case of a plea of guilty one can only appeal
on the extent or legality of the sentence.

Section 348A of he CPC provides for the attorney general to appeal against
acquittal or an order in favour of the accused only on a point of law.

Section 349 – the appeal must be lodged within 14 days of sentencing. The time
can be extended if failure to lodge has been occasioned by the inability of the
accused or his advocate to obtain judgment and proceedings through no fault of
their own.

Appeals are to be in written form in a petition and they are to be presented either
by the accused or his advocate and every appeal must be accompanied by a copy
of the judgment or order appealed against (unless the High Court rules
otherwise).

It shall be signed by whoever is lodging it and must contain the matters of fact or
law in regard to which the subordinate court is alleged to have erred. The
petition must indicate the address for the service of the document. The appellant
shall not be allowed at the appeal to include other grounds other than those they
have set in the appeal.

They may amend without notice to the AG and leave of Court, but with notice to
the Registrar where within 5 days of filing they have not received copies of the
proceedings from the subordinate court having applied fo rhte same before he
expiry of the 14 days. One can amend their grounds if they don’t have the
proceedings. This provision of making amendments without AG or leave of court
does not apply where the accused is represented on appeal by the advocate who
represented him before the subordinate court.
 62

Section 350(2)(ii) (v) of CPC MAKES ELABORATE PROVISIONS ON SERVICE

OF THE PETITION

Section 351 CPC provides that accused persons who are in prison may present
their petition through the officer in charge of the prison for onward transmission
to the court.

Section 352 CPC makes provision for summary rejection of appeal. Where the
appeal is brought on the ground that the conviction is against the weight of
evidence, or that the sentence is excessive. If it appears to the judge that there is
sufficient evidence to support the conviction and there is no material to raise
doubt on the conviction or to warrant the reduction of sentence; they may
without setting the matter for hearing reject the appeal by making an order
certifying that they have perused the record and are satisfied that the appeal has
been lodged without sufficient grounds for complaint in which case the accused
need to be given opportunity to be heard in support of the appeal. In all other
cases they must be given opportunity to support the appeal. The accused need
not to come and adduce evidence in support of appeal in this case. in other cases
the accused is given an opportunity to support the appeal.

Section 352A CPC makes provision that where the court is of the opinion that
conviction cannot be supported and the AG has informed the court in writing that
he does not support the conviction, the judge may summarily allow the appeal.

REVIEWS

Covered under Section 362 CPC provides for Review by the HIGH COURT the
high court may on its own motion call for and examine the record of any criminal
proceedings before a subordinate court for the purpose. 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.

Section 363 CPC provides similar powers to a subordinate court of first class
jurisdiction with regards to matters in its jurisdiction it shall where it finds fault
forward the records together with comments/remarks to the High Court. if the
court is not of first class but notices the mistake they can forward the case to a
magistrate of first class.

The powers of reviews allow for the courts to internally correct mistakes without
waiting for the accused or the state. it also allows for the High Court to exercise
its supervisory powers over the subordinate courts.

Section 363(5) states that when an appeal lies from a finding, sentence or order
and no appeal is brought, no proceedings by way of revision shall be entertained
at the instance of the party who could have appealed.
 63

In Kenya parties make applications for the HC to use their review powers as
opposed to the HC to review it on its own accord. However it has been held that
the High Court will still review its own cases. Uganda v Polasi 1970 EA 638 – the
accused was sentenced to an illegal term of imprisonment, he filed and appeal
and then withdrew it and was thereby deemed dismissed – the sentence which
was subject to confirmation had not been confirmed Dickson J stated that the
case has come to this court’s notice in the exercise of its functions. The accused,
it would see, was unaware of the illegality of the sentence… once this state of
affairs has come to the notice of the High Court…

The court should be able to internally correct illegalities. If a sentence is illegal

and if the accused is not aware that they can appeal it is incumbent upon the
court to take steps upon such illegality.

If an order cannot be made under revision to the prejudice of the accused unless
he has had the opportunity of being heard either personally or by the advocate

POWERS OF THE COURT IN APPEALS OR REVIEWS

In the case of an appeal where the court upon hearing an appeal, it may dismiss
or allow the appeal. Section 354 states that in both appeal and review where the
appeal or review emanates from a conviction the court may

1. Reverse the finding and sentence;

2. acquit or discharge the accused
3. Order a retrial before a competent court
4. alter the finding maintaining the sentence,
5. Reduce the sentence with or without altering the finding.
6. With or without reduction or increase, with or without altering the
finding, alter the nature of the sentence.

Appeals against acquittal or order refusing to admit complaint or formal charge

or order dismissing a charge;

Where the appeal is against acquittal, essentially these are powers where the law
is in favour of the accused, the finding is always likely to favour the prosecution
the court will hear and determine the matter of law and thereupon reverse, affirm
or vary the determination of the subordinate court. the prosecution can to the
HC to review that order to reverse or review and vary that order. Once the court
remits the matter with its opinion to the subordinate court, either for re-hearing
or any other order that it may deem fit.

Section 364(1)(b) - where it is an acquittal, the court without fully determining

the matter can
 64

Section 358 makes provision for the court to take further and additional evidence
in the case of appeal and revision giving reasons for doing so. Such evidence may
be taken by the High Court itself or it can direct it to be taken by a subordinate
court in which case such a court is required to certify such evidence to the high
court. the accused or his advocate shall be represent when additional evidence is
taken unless directed otherwise..

BAIL PENDING APPEAL

Section 357 – of the CPC provides that the High Court or the subordinate court
which convicted and or sentenced the accused person may order the release of
that person on bail with or without sureties and the accused person can also
request for an order maybe made suspending the execution of his sentence
pending the e appeal where bail is denied.

Where bail is denied by the trial magistrate the accused does not have a right to
make a fresh application before the High Court, instead he has the right to appeal
against such refusal and such appeal shall be heard and cannot be summarily
rejected under Section 352 of the CPC.

Notwithstanding these factors it must be borne in mind that unlike bail pending
trial, bail pending appeal is considered within the context of an existing legally
binding finding of guilty. Somo v R [1972] EA 476 at 480 Trevelyan J noted;; “It
seems to me that where these applications are…

The court will take into consideration all the factors together including all the
factors together including factors taken into consideration in bail pending trial
such; the character of the accused, likelihood to attend appeal, where the
application is successful the court will proceed to give bail terms and the
procedure is similar to the that in the subordinate courts.

In the High Court sureties are examined and approved by the deputy registrar.

Bail pending appeal can be granted where the High court is exercises its power of
review under section 362

The court of appeal has held on various occasions that it has no jurisdiction to
entertain appeals from high court refusals to grant bail pending appeal – Micheal
Otieno Ademba v R court of Appeal Reports 1983 volume 1 at 187

Essential factors are whether the appeal has been lodged,

The trial court is the first court that can be seised of the matter. It is unlikely for
trial court that has found you guilty to sit back and consider whether they should
give you bail pending appeal. If there are high chances of success, you are asking
the trial court to evaluate the evidence, whether it is sufficient to sustain a
 65

conviction at the appellate level. Subordinate courts in some cases are able to
evaluate and grant bail pending appeal.

HABEAS CORPUS APPLICATIONS

Habeas corpus has its origins in the common law where it developed as a writ – it
may be described as a prerogative process of securing the liberty of the subject by
affording a means of immediate release from unlawful or unjustifiable detention,
whether in prison or private…
Because it is a prerogative writ it can only be entertained by the High Court.
section 389(1) – HC may whenever it thinks fit direct
a) That any person within the limits of Kenya be brought up before the
court to be dealt with according to the law;
b) That any person illegally or improperly detained in public or private
custody within those limits to be set at liberty.
c) That any prisoner detained in a prison situated within those limits be
brought before the court be there examined as a witne3ss in any matter
pending o to be inquired into that court;
d) That any prisoner so detained be brought before a court marital or
commissioners acting under the authority of a common the President
for trial to be examined touching on any matter pending

Are habeas corpus applications criminal or civil in nature – there is no question

to that question Grace Ribingira – the EA Court of appeal observed that any
application for the writ of habeas corpus would only be civil in nature, being
criminal ..; general understanding is that these procedures should be general in
nature.

The court therefore can determine certain applications either by way of civil or
criminal, where it is criminal no appeal lies, where it is civil one can appeal – this
is especially cases where one has a private citizen can hold another citizen
illegally, since this person has no authority to hold another person, the private
person since they cannot prosecute a criminal offence, the matter will be civil in
nature and if the court were not to allow the application, then one can appeal
against the order.

Where the application is not dismissed at the ex parte stage it will proceed to
interparte pleadings. It is in the civil process that ex parte applications are found.
The court ones seised of the ex parte application can make an order or make an
order that the other party be called to reply. If the court decides that this person
is being legally held they will dismiss the matter.

The application shall be filed in duplicate and forward to the AG, a date is taken
for the return of summons. Once these summons are issued it is expected that
 66

the party against whom it has been issued will also file a reply, this is a very
documentary process. The reply must also come up with affidavits.

The applicant may meanwhile be released on bail if in detention or police

custody, where in custody the court may order their release on terms that the
court deems fit. At the hearing the applicant shall begin and the party resisting
shall then tender their evidence and then the applicant shall be entitled to reply
and thereafter the court shall make a decision. Where the application is
successful the court shall make an order requiring the party holding the applicant
to release the person. It is the prison or police station that is served with the
orders to release the person being held. Where the order is sought that requires
the prisoner to reply, the application may be made exparte and requires the
applicant to testify.

A prisoner serving lawful sentence and you require them produced to give
evidence, the court has discretion to make the order for the person requesting for
the prisoner to pay the costs.

In the case where it is a civil prisoner, the application shall be judges chambers by
person requiring the prison’s attendance but no order shall be made without
hearing the civil prisoner who should decide whether they want to comply with
the order, the court will also decide whether the evidence is essential.

Habeas corpus are rarely made to require people in prison to give evidence, what
usually happens is that an application is made by the prosecutor for the
production of such a person, if before the subordinate court they make an order
requiring the production of such a person. A prisoner may be refusing to come to
court and a habeas corpus is necessary so it can be served to the prison who then
must produce the prisoner.

A judge may order the body of any person alleged to be detained to be produced
before him in court.

Due to the kind of violations that the writ is expected to pre-empt the writs are
treated with urgency. It is one where one can stop a judge on the street and
require of them to attend to the matter. Once can serve it if a person is in danger
and the only remedy would be a judicial order requiring the person to be
released.

INQUESTS:

Provisions for inquests – read the provisions the provisions were amended.

CRIMINAL PROCEDURE
 67

Lecture 11 4TH July 2006

INQUESTS/INQUIRIES
Inquests are inquiries into sudden death as well as where a person has gone
missing and is believed to be dead.

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 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
 68

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.

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 he 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.
 69

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 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
 70

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
proce4ed 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 has committed the offences of
murder or manslaughter.

CONVICTIONS OF OFFENCES OTHER THAN THOSE CHARGED

Summary

Section 179-190 of the CPC sets out specific cases where this may happen

When one is charged with an offence consisting of several particulars, a

combination of some only which constitutes a complete minor offence; may
be convicted of the offence although he was not charged with it.

Where the facts provided reduce the offence to a minor one.

One may also be convicted of attempt of the offence charged depending on the
facts and evidence adduced.

Offences relating to the infant or unborn child and abortion matters, it is

possible to charge a person with murder of a child and then it can be reduced
to infanticide. In such situations if the circumstances show a different offence
one can be found guilty of that other offence.

In manslaughter in connection to driving a motor vehicle – may be found

guilty of causing death by dangerous driving.
 71

Administering Oaths – these are offences that one can be charged with where
they did not actually administer but recruited people.

Charge of rape – may be found guilty of any other offences c/s 144, 145, 148,
166 of CPC.
Charge of Incest section 144 and 145 of PC
Charge of Defilement – 144 and 148 of the Penal Code
Offences under Charter XXIX of the Penal Code
Theft – Sections 322, 323 of the Penal Code or obtaining by false pretences.
The court may reduce charge of theft and substitute with the one revealed by
the evidence.
Obtaining by false pretences – evidence can lead to a charge of theft.

One cannot find one guilty with an offence that one is charged with, it can be
comparable or less.
Stock theft under PC

Matters arising under Section 67 and 84 of he Constitution are brought before

the High Court by way of originating notice of motion.

Previous to 2001 the CJ even though empowered to make rules for

constitutional references had not formulated any and so there was never
clarity of how people could agitate for their constitutional rights when
violated, the rules are very helpful, people know what to do.

There are forms created and Motion is per form A of the rules. It must give
concise grounds for the application and supported by applicants affidavit.

Subordinate courts do not have the Forms and the Forms apply to the High
Court Applications. The High Court may move on its motion to examine a
matter under Section 65(2) OF THE Constitution.

Where the matters requires interpretation by parties to a criminal suit the

subordinate court may refer the matter by way of Form B, or a party may
request the subordinate court to refer the matter by way of Form C. this
means that a magistrate on their own motion can decide that there is a matter
that needs to be interpreted by the High Court and can request for application
by the High Court by filling Form B. the High Court may also request the
subordinate court by way of Form C to refer the matter to High Court for
interpretation.

In either case the subordinate court must set out concisely the issues and its
opinion in either form B or C and the same shall within 14 days refer the
matter to the High Court. within 7 days of receipt the Registrar is supposed to
place the matter before the Chief Justice to constitute a bench. This will be a
3 bench court as that is the requirement.
 72

Where the matter is of an interlocutory nature and one requires interlocutory

orders, the matter shall be placed before a Judge directly.

CONSTITUTIONAL REFERENCES
Any applications alleging contravention of constitutional rights under
Sections 70-83 of the constitution are to be made directly to the High Court by
way of Form D and supported by an affidavit. Listing out the contraventions
that are occurring that one would like to be stopped. Parties wishing to rely
on any documents must attach them.

A criminal application must be served on the AG and the AG has a right of

reply within 14 days of service, by way of replying affidavit and any support
documents. Where the AG does not respond within 14 days of service, then
the court may set the matter down for hearing. The judge may also give
interim orders. Where the questions of violations of fundamental rights arise
in the cause of proceedings, the presiding subordinate court is of the opinion
that the matter raised is not frivolous then they may refer the matter to the
High Court by way of form E. the party may make an informal application to
the presiding court.

The applications usually challenge the basis on which the constitutional

applications are brought to court. one can make an informal application
before the court and then the court will start the process of whether the
application should be referred to the High Court.

The presiding court must be satisfied that an application is not frivolous

before they send it to the High Court in which case they shall frame the issues
in contention to be determined by the High Court by way of Form E.

One of the rules is that the only matters that the High Court will consider are
the ones that have been framed by the Magistrate in Form E. the matter must
be referred within 21 days to the High Court. once it is sent to the High Court
then the registrar shall place the matter before a judge within 7 days. Any of
the parties making the application may apply for a stay of proceedings before
the subordinate court while the constitutional reference is pending.

The rules make it clear that it is not mandatory that the proceedings will be
stayed and such the parties must make an application for a stay and if there
are no such orders, the subordinate court can continue with the hearing while
the reference is being determined.

Constitutional references and applications are to be given priority and to be

dealt with expeditiously. The High Court’s decisions are appealable to the
Court of Appeal within 14 days.
 73

Read the decisions Kirwa case – court is saying that where one does not abide
by the rules they cannot argue their case.