FIRM 4

TRIAL ADVOCACY

ATP 104

BY

DR ERIC KIBET
 FIRM MEMBERS
1. NALUENDE KELSEY ELLAMS 20240085
2. MWANGANGI NICHOLAS KINOTI 20240907
3. MICHAEL KULUNDU 20240097
4. THUMBI NAFTALY KIMANI 20241028
5. NYABATE ATANG’A JOSPHAT 20240114
6. NYAMAWI ABIGAIL CHONI 20240112
7. CAROLINE KARURUE 20240119
8. OTIENO JACK BRIAN 20240091
9. YATICH KIPRUTO 20240131
10. MUSEMBI JOHNPAUL 20240105
 INTRODUCTION
• An adversarial system (also referred to as the accusatorial system)
is that where the court act as a referee between the prosecution
and the defence, who are seen as “adversaries”. The whole process
is a contest between two parties.

• An inquisitorial system is a legal system where the court is

actively involved in proof of facts by participating in the
investigation of the case.
 DIFFERENCES BETWEEN THE INQUISITORIAL AND
ADVERSARIAL SYSTEMS

Adversarial System Inquisitorial System

 The adversarial system aims to get the  The inquisitorial system is generally aims to
truth through the open competition get the truth of the matter through extensive
between the prosecution and the defence. investigation and examination of all evidence
by an impartial authority.

 In an adversarial system all parties  In an inquisitorial system the conduct of the

determine what witnesses they call and trial is in the hands of the court. The trial
the nature of the evidence they give. The judge determines what witnesses to call &
court overseeing the process by which order in which they are to be heard.
evidence is given.

 In an adversarial system the role of  In an inquisitorial system the role of lawyers

lawyers is central and active. They gather is passive. They assist the judge in presenting
evidence, present arguments, evidence and arguments to uncover the truth.
and advocate for the positions of their
 Adversarial System
 The judges role is merely passive (as a
neutral arbiter). They pronounce judgment
depending on the hearing, evidence or on
the basis of examination & cross-
examination.
 Legal precedent is of high value in the
adversarial system. Past court decisions
serve as binding or persuasive authority,
and judges are obligated to follow
established legal precedents.
 The adversarial system is prevalent in
common law countries, such as the United
States, the United Kingdom, and Canada.
Inquisitorial System
 The judges plays a very active role during
the investigation, questioning of witnesses
& hearing the parties directly. Their role is
more inquisitive.
 Less emphasis is placed on legal precedent
in the inquisitorial system. Decisions are
often based on the specific facts and
circumstances of the case rather than strict
adherence to past rulings.
 The inquisitorial system is more commonly
found in civil law countries, including
France, Germany, and Italy.
ADVANTAGES AND DISADVANTAGES
OF ADVERSARIAL SYSTEM
• The adversarial system involves two parties, prosecution and defense,
presenting their case before an impartial judge.
• The judge then makes a determination based on the evidence brought
before the court.
• The adversarial system is common among countries that have common
law jurisdictions
ADVANTAGES OF ADVERSARIAL SYSTEM
• The accused person is typically assumed innocent until sufficient evidence proves their guilt.
• The evidence gathering in this system lies with the police department allowing the prosecution

and court to only examine them.

• Doing this eases the burden of the court and allows expeditious trial.
• The accused has a right to remain silent and not reveal any condemning information.
• The accused person acquires the services of a lawyer/legal expert to give counsel and advocate

for them in courts for the best outcome.

• The system has a high burden of proof and normally falls on the prosecution to prove beyond

reasonable doubt of the accused’s charges.

• It also allows for both parties to present their case before the court, starting with the

prosecution’s case followed by the defense’s case.

ADVANTAGES OF ADVERSARIAL SYSTEM

• The accused person acquires the services of a lawyer/legal expert to give counsel
and advocate for them in courts for the best outcome.
• The system has a high burden of proof and normally falls on the prosecution to
prove beyond reasonable doubt of the accused’s charges.
• It also allows for both parties to present their case before the court, starting with the
prosecution’s case followed by the defense’s case.
• There is limited bias within this system as judges hearing the case must be
impartial.
• In instances where there is conflict of interest with a judge to a case, the law
requires them to recuse themselves.
DISADVANTAGES OF ADVERSARIAL SYSTEM
• The end goal of an adversarial system is to present the best case that will succeed in court.
• Some advocates might avert the truth and use foul ways to have a favourable outcome.
• Each party has a right to seek services of their own lawyers create disparity in
representation.
• Wealthy individuals get the best, while the less fortunate might be unable to get adequate
legal representation therefore a disproportionate hearing.
• Heavy reliance on oral testimony and cross-examination might produce faulty result
because it deals with human weaknesses.
DISADVANTAGES OF ADVERSARIAL SYSTEM
• A person might easily forget information or become nervous while presenting their
testimony enabling a party to discredit their evidence despite it being true.
• It involves a lot of people for the determination from the witnesses to victims and
defendants and the advocates.
• It can create an emotional and psychological burden to individuals and families,
especially to vulnerable people.
• The courts have strict rules of procedure to follow when filing and presenting a case
before the judges.
• These procedures become complex for ordinary citizens to observe and might prevent
justice from a failure to follow a procedure.
WHAT CAN BE IMPROVED IN THE SYSTEM OF
TRIAL THAT WE HAVE IN KENYA?
KENYA’S TRIAL SYSTEM
 Kenya’s trial system is a mixture of both the adversarial and inquisitorial systems. This means that
the court in Kenya is not just a passive recipient of information but is also in some aspect responsible
for supervising evidence gathering so as to resolve the case. This is evident in various aspects of our
trial system including but not limited to the following:

 The court in the criminal justice system has the power to decide whether there is sufficient evidence
to proceed the case in the trial. Sections 210,211 and 306 of the Criminal Procedure Code mandate
the court to make a determination as to whether a prima facie case been established by the
prosecution. If it finds that a prima facie case has been made against the accused person, the hearing
of the defense case then commences.

 As much as it is up to the parties to prove their case, the court is still involved in determining whether
in deed there is a case to answer.
 The police(investigator) enjoys considerable liberty in the cause of investigation as the law
under Section 36A of the Criminal Procedure Code and Section 33 of the Prevention of
Terrorism Act empower them to detain suspects for a period longer than the set twenty four
hours but they must first seek leave of the court. This is done by means of an affidavit
showing that there is a reasonable cause for the extension.

 As provided by Section 39 of the Criminal Procedure Code, a magistrate may at any time
arrest or direct the arrest in his 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.
Although Kenya has significantly benefitted from the mixed trial system, there are a few areas
worth improving. These include:
a) Use of Technology
Can be achieved by increasingly digitalizing criminal records and creating a secure and
confidential platform through which case files can be shred and accessed easily or remotely.

b) Backlog
There is a need to strengthen referral mechanisms for victim-offender mediation and improve
collaboration between formal and informal justice systems to promote amicable resolution of
disputes before they enter the court system.
c) Access to Legal Counsel and Representation
The scope of state-funded legal aid should be widened to include other crimes as most offenders
are unable to hire lawyers.

d) A general shift in perspective

Besides establishing guilt or innocence, the system should also be concerned with the truth.

e) Evidence Handling and Presentation

Police officers should also be trained on how to present evidence in virtual court sessions to
minimize the associated struggles and save the court’s time.
 RESOURCES

1. Gunn, John, and Paul Mevis. "Adversarial versus inquisitorial systems of trial and
investigation in criminal procedure." Forensic Psychiatry and Psychology in Europe: A
Cross-Border Study Guide (2018): 3-17. https://doi.org/10.1007/978-3-319-74664-7_1
2. Spencer, John R. "Adversarial vs inquisitorial systems: is there still such a
difference?." The International Journal of Human Rights 20, no. 5 (2016): 601-616.
https://doi.org/10.1080/13642987.2016.1162408
3. Van Koppen, Peter J., and Steven D. Penrod. "Adversarial or inquisitorial: Comparing
systems." In Adversarial versus inquisitorial justice: Psychological perspectives on
criminal justice systems, pp. 1-19. Boston, MA: Springer US, 2003.