ATP 101: Quick Notes

Jurisdiction
The Supreme Court (Art 163)

 Has appellate jurisdiction to hear appeals from the Court of Appeal and any other tribunal
 Appeals from the Court of Appeal lie in the Supreme Court (a) as of right in cases involving
constitutional interpretation and application (b) if the matter is certified by Court of Appeal or Supreme
Court as of general importance
 Has original jurisdiction to hear presidential elections disputes (Articles 140 and 163(3))
 Under Article 58(5) of the Constitution, the Supreme Court has jurisdiction to determine, the validity of
a state of emergency, its declaration, its extension, or any law or action taken as a result of declared
state of emergency

The Court of Appeal (Art 164)

 Has appellate jurisdiction to hear appeals from the High Court

 Appellate jurisdiction in matters involving election petitions is limited to “matters of law only”, see
Peter Gatirau Munya v. Dickson Mwenda Kithinji &2 Others (2014); what constitute a “matter of
law”
 Has original jurisdiction to hear cases of contempt in the face of the court (S.5, Contempt of Court Act;
S.35, Court of Appeal (Organisation & Administration))
 Subordinate courts and High Court are bound by the decisions of the Court of Appeal

The High Court (Art 165)

 Has original and unlimited jurisdiction to hear criminal matters (Art 165 (3))
 Has supervisory jurisdiction over sub-ordinate courts
 Under the International Crimes Act, the High Court has jurisdiction to hear cases relating to genocide,
murder, crimes against humanity, and war crimes (S.8(2))
 Under S.5 (2) of the Criminal Procedure Code, the High Court can hear cases relating to crimes under
statutes without court mentioned to hear the same, see Attorney General v. Mohammed Mohamud
Hashi & 9 Others (2011)
 Has jurisdiction to hear cases of whether a fundamental right or freedom is violated in a criminal
proceeding in subordinate courts
 Has appellate jurisdiction to hear appeals from subordinate courts (S. 347(2) of CPC)
 Has original jurisdiction to hear applications in the nature of habeas corpus (Art 51 (2) of CoK; S.389
of CPC, and r.3 Criminal Procedure (Directions in the Nature of Habeas corpus) Rules)
 Although the Land and Environment and Employment and Labour Relations Courts have similar status
with High Court they lack jurisdiction over criminal matters, see R v. Karisa Chengo & 2 Others

The Magistrates’ Courts

 The Magistrate’s is either of first class or second class

 S.7 (1)(a) of the CPC the Magistrates’ Court of first class is the one presided by the Chief
Magistrate, Senior Principal Magistrate, Principal Magistrate, or Senior Resident Magistrate
 The courts of first class have jurisdiction over criminal matters who fine does not exceed
KSH.20,000 or imprisonment does not exceed 7 years (S.7 (2) of the CPC)
 Generally, all criminal cases are heard at the Magistrate Courts of first class save for offenses
under the International Crimes Act
 S.8 of the Magistrate’s Court Act confers limited jurisdiction to hear applications for redress of a
denial, infringement, or violation of a right under Articles 25 (a) and (b) of the Constitution, also
see Article 23(2) of the Constitution

Mike Matanga Amukhumba LL.B (Hons.) UoN KSL 20251013

  For the jurisdiction contemplated in S.8 of the Magistrate Act, the court cannot award claims but
only issue a conservatory, injunction, or declaratory order, see Articles 23 and 24 of the
Constitution of Kenya
 A Resident Magistrate is considered a court of second class
 A Resident Magistrate jurisdiction is set out in S.7 (1)(b) of the CPC; include dealing with offenses
under S.278, 308(1), and 322 of the Penal Code or under the Sexual Offenses Act
 Additionally, sentences passed by the resident magistrate court does not exceed 2 years or fine
does not exceed KSHS. 10,000 (S.7(3) of the CPC

Pre-Arraignment Stage
Arrests

Arrest Generally

Mode of Arrest

 Arrests can be made by police, private persons, pilots, magistrates, and public entities such as
EACC
 Arrest is the use of legal authority to seize someone their freedom and take them into custody
 S.21 of the CPC requires that there be an actual touch or confine of the body of the person to be
arrested unless there is submission to custody by word or action
 The person making the arrest shall use reasonable force and take into account the circumstances of the
arrest
 Further, S.24 of the Act requires that no unnecessary restraint to be used on the arrested
person

Duration of Arrest

 Article 49 of the CoK provides that an arrested person should be held in custody for no more
than 24 hours
 The police are to present the arrested person to court in 24 hours except for cases where the
period does not fall within ordinary court hours

Arrests Without Warrant

 Arrests without warrant are dealt with Sections 29 to 39 of the CPC

 The Police Act and Administration Police Act as well provide for the arrests without
warrant
 This kind of arrest requires no warrant or an order from the court for the arrest
 Under Section 29 of the CPC, a police officer may arrest any person without warrant if:
1) He suspects on reasonable grounds that the person has committed a cognizable
offence
2) He finds the person in a highway, yard, or any other place and whom he suspects on
reasonable grounds to have committed or intending to commit a felony
3) He finds during the hours of darkness in streets or public place and with reasonable
grounds the officer suspects that the person is there for an illegal purpose or activity
4) A person obstructs the police in the performance of their duty
5) A person breaches peace in presence of the officer
6) The person is a deserter of the armed forces
7) He believes that a warrant of arrest has been issued to arrest the person
8) Any released convict who breaches the conditions for their release under S.344 of the
CPC

Mike Matanga Amukhumba LL.B (Hons.) UoN KSL 20251013

 9) Any person without lawful excuse having in possession any implement of
housebreaking
10) Any person upon reasonable grounds holds stolen property
 Arrests without warrant can as well be made by magistrates, under section 38 and 39 of the
CPC


Arrest for More than 24 Hours

 Holding an arrested person in custody for more than 24 hours can only be done with court’s
leave
 S.36(A) (1) of the CPC provides that a person must be presented before court in 24 hours
 Any holding of a person for more than 24 hours must be done with leave of the court
 S.36(A)(2) provides that police officer intending to hold an arrested person for more than 24
hours must: a) Present the arrested person in court b) Make an application for extended
detention in writing
 The application for extension of time is supported by an affidavit which state:
a) The nature of offence for which the suspect has been arrested
b) The general nature of the evidence on which the suspect has been arrested
c) The reason(s) why the suspect needs to remain in custody for more than 24 hours
d) Inquiries made by the police and the proposed inquiries to be made by the police
 The court can give either conditional or unconditional release of the person from custody
upon hearing such an application
 The rationale for conditional release is to ensure that: 1) The suspect does not interfere with
investigation or witnesses or commits an offence 2) The suspect is available to give
information for purposes of investigations or reporting to the court and 3) the suspect is
available at such a time or place prescribed by the court for the purpose of preliminary
hearing or trial or inquiries to help police in investigating the matter
 The court, generally, cannot make an order for remand unless: a) It is proved that the arrested
person may interfere with witnesses or commit offence or fail to appear for trial b) It is
necessary for the security and welfare of the arrested person, especially minors c) The
arrested person is serving a custodial sentence d) The arrested person was arrested in relation
to an offence committed and has breached the conditions for his release
 An Order for Remand in Custody by the court can only give a period of up to 30 days and can
be renewed until 90 days
 However, for some offences especially those under the POTA the police can reapply until 360
days are over

Mike Matanga Amukhumba LL.B (Hons.) UoN KSL 20251013