Essentials of Criminal Procedure

1. Players
The State and the accused
Underscores the public nature of the case
The complainant
Section 2 CPC, a person who lodges a complaint with the police or any other lawful
authority. State legislates the crime.
S 202, the court can acquit when the complainant having known that the hearing was to
be held fails to show up. May also withdraw.
Zhangua v R (2006); court ought to have clarified why the grounds were insufficient,
sought a withdrawal. Lesiit J.
S 204; Medardo v R, Withdrawal may be at any time before a final order is entered.
Victim impact statements, determines the sentence to be given.
Prosecutor
AG Delegated Authority – DPP, SG and State Counsels of various ranks.
Gazetted Public Prosecutors – appointed by AG, geographical and subject matter
Non Gazetted – AG
Police
Witnesses
Judge/Magistrate

The Judiciary
A 159 (2) Principles that guide courts
Justice for all, not delay, ADR, undue regard for procedural technicalities, promote and
protect principles and purpose.
High Court A 165
Jurisdiction to determine questions whether the bill of rights have been denied, violated,
infringed or threatened.
A 23 Reliefs:
- A declaration of rights
- Injunction
- Conservatory order
- A declaration of the invalidity of any law
- Order for compensation
 - Order of Judicial review
Practice Directions to Standardize Practice and Procedures in the High Court 2022
Original Jurisdiction
Appellate Jurisdiction of the High Court
A 165 (3), appellate jurisdiction only arises when expressly directed by statute, appeal matter
of fact or law from a subordinate court; s 347 of the CPC.
Interpretative Jurisdiction
A 165 (3) (d)
Any law contravenes, is inconsistent with COK
Anything done under the authority of COK is inconsistent or contravenes COK
Matters relating to constitutional powers of state organs, county governments, constitutional
relationships, conflict of laws
Supervisory Jurisdiction
Subordinate courts and over any person, body or authority exercising judicial or quasi-
judicial functions.

Subordinate Courts
Magistrate Courts, Kadhi’s Courts, Court’s Martial
Any other Court or local tribunal as may be established by an Act of Parliament.
Magistrate Courts Act.

Searches
Searches with a warrant
Warrant – A written permit issued by a court/magistrate allowing a search upon proof on oath
that a thing on, with or in respect of which an offence has been committed or which may be
necessary for the investigation.
Section 122, s 102 of the CPC Contents:
- Offence which the search is related
- Name, description of the person, place or thing to be searched
- The persons to execute the search warrant
- An order directed to the executor of the warrant to seize the products of the search and
produce them in the court issuing the warrant.
Remains in force until canceled by the court that issued it or executed, s 122(3).
 A 31 – Privacy, not to have home, property searched, their possessions seized, info
required ore revealed, privacy of their communications infringed.
A 24 – Limitation of rights
A 25 – rights that may not be limited; torture, slavery and servitude, fair trial, heabeas
corpus
Searches on a person
Professional Privilege
Spouse, Lawyer, Doctor
Using a search warrant;
Butler v Board of Trade; Warrant only authorizes a single entry, single search and a single
seizure. After entry, officers must follow seek another warrant for a second search.
Searches Without a warrant
- S 26 of CPC, authorized; may stop, search or detain an aircraft.
- The search should be conducted by an authorized person; failure to which there may
be an acquittal. Attibu Juma v R (1983)

Arrests
A restraint upon a person’s liberty and may take the form of physical confinement.
Force may be applied to counter an attempt to resist apprehension.
S 22 CPC, officers executing the arrest can enter.
Where entry is denied, officer may break open/ Into/ Out of.
Breaking action is only valid when: Section 22
- Has made notification of the entry
- Has stated his/her purpose
- Made a demand for admittance
- Denied/unable to gain admittance
Arrests without a warrant
Cognizable offences e.g. murder
Breach of peace in the presence of a police officer
Obstruct a police officer
Escape lawful custody
Possession of something that is suspected to have been stolen
Suspected deserter
Suspected to have committed an extraditable offence
Suspected subject of a warrant of arrest
In possession of instruments of house breaking
Citizen’s arrest
Cognizable offence
Damage to a property; owner may arrest
Take the person to the police station to be rearrested;
Release on bond at the police station;
- Not a capital offence
- Not practicable to bring before a court within 24 hours
- The offence is not of a serious nature
S 39 - Magistrate can arrest, offence is omitted in his presence within the local limits of his
jurisdiction.
Arrests with a warrant
S 100, summons are issued
Fails to appear in a hearing; accused person
Validity of warrants
Must bear the signature of the Magistrate
Seal of the court
Name of the persons to whom it is directed
Offence
Order apprehension
Named/description
Endorsement
State the number of sureties
Amount and subject to which they will be bound
S 105,,, arrest warrant can be issued when a person eludes arrest, to a land owner.
Irregularities and defects in a warrant
Using a warrant more than once; Dickerson v Brown, kings bench doubted the legality of a
second arrest
Powers to force attendance
Make bond for appearance 114
Arrests for breach of bond 115
Issue production orders 116
Constitutional Issues related to arrests
Indiscriminate arrests: Shimechero v Republic