TOPIC ONE
INTRODUCTION AND STRUCTURE OF COURTS
The Criminal Procedure is the process through which penal
and criminal laws are applied. That is the process of the
application of penal laws. It is procedural law and not substantive
law. The essentials of criminal proceedings are:
1. To bring the accused within the power of the tribunal.
2. A preliminary investigation to ensure the crime is one which
should be prosecuted.
3. Notice to the accused of the offence charged upon arrest:
the accused has to be told why he is being arrested. Notice
to give charge sheet with information against him, for him to
respond and to defend himself.
4. Opportunity to prepare for trial, procure witness.
5. A speedy trial. A trial should be conducted as fast as possible
because during the course of the trial the accused may be
kept in prison as they have been refused bail.
6. Fair trial before an impartial tribunal. Accused is given an
opportunity to say something in his defense. Through
counsel of his own choice.
7. A right to the review of the case by a suitable appellate
tribunal. Right to review if the accused is not happy /
satisfied with the process.
Under our jurisdiction there are 2 ways of review:
1. Review by way of appeal.
2. Review by way of revision.
Criminal proceedings commenced in the name of the state of
Kenya are titled R (meaning Republic) v Accused. In other
jurisdictions, such cases are titled People v Accused or State v
Accused.
In private prosecutions, it is always the Republic because you
institute in the name of the state. The state is treated in all
criminal cases as the complainant and it is not necessarily the
victim.
1
1. Magistrate courts;
a. District Magistrate courts:
i. District Magistrate Court 1
ii. District Magistrate Court 2
iii. District Court magistrate 3
b. Resident Magistrate court:
i. Chief Magistrate
i. Senior Principal Magistrate.
2. Subordinate courts:
a. Class 1:
i. Resident Magistrates Court;
ii. Principal Magistrate Court
iii. Chief Magistrate
iv. District Magistrate 1
v. Senior Resident Magistrate
vi. Senior Principal Magistrate
b. Class 2
i. District Magistrate 2
c. Class 3
i. District Magistrate 3 it has been done away
Therefore the powers are given according to the classes to the
courts in them.
District Magistrates Court
Established under section 8 of the Magistrate Courts Act and
may be of class 1 and 2. Its jurisdiction is limited to gazetted
geographical districts and by their sentencing power. Jurisdictions
of the District Magistrate are set out in section 7(2) and (3) of the
Criminal Procedure Code.
The District Magistrate Court 1 has the same power as the
Resident Magistrates Court.
Powers:
1. It can impose imprisonment not exceeding 7 years.
2. It can impose a fine not exceeding Ksh. 20,000.
What happens when a District Magistrate Court 1 determines
that the accused should be given a heavier punishment than that
which they can give? They refer to a court with the appropriate
jurisdiction i.e. the Senior Resident Magistrate Court, the Principal
Magistrate Court the Chief Magistrate is appropriate.
3
Under the Kenyan Law there is no provision for trial by jury there
for the magistrate is a judge for both the Law and for Fact. The
magistrate does not sit with assessors.
Apart from trials the RMs court has jurisdiction to:
1. Preside over committal proceedings.
2. To conduct inquests.
COMMITTAL PROCEEDINGS
RMs courts try criminal cases and committal proceedings.
Section 233 of the CPC relating to conducting of committal
proceedings in respect of offences triable at the High Court e.g.
murder and treason.
The role of the RM court is to decide whether or not the person
would stand trial in the High Court for a capital offence. The
objective is that the High Court should not handle frivolous cases
and therefore committal proceedings are there for dismissal of
frivolous cases and serious ones are taken to the High Court.
Committal Proceedings take the form of a preliminary hearing
before magistrates and evidence is recorded by the magistrate to
determine whether the case is worth trying in the High Court.
Replacement of preliminary inquests where magistrate dont get
to hear oral evidence. They dont deal with witnesses. Instead
they are furnished with committal bundles comprised of a bundle
of documents relating to the case i.e. the statements of the
witnesses and the accused.
Any expert evidence report from a doctor or analyst is passed
to the magistrate to read in order to make a determination
whether there is a case worth trying in the high court.
1. If in the opinion of the magistrate the bundles have a case
triable at the High Court, the accused is committed to the
High Court for trial.
2. If the documents do not disclose any offence, the magistrate
should discharge the accused.
3. If the documents do not disclose the offence charged but
they do disclose a lesser offence, the magistrate conducting
the committal proceedings should charge the accused with
that lesser offence, e.g. if charged with murder, but
documents do not show murder but show manslaughter, the
magistrate should charge the accused with manslaughter.
6
INQUESTS
RMs court has jurisdiction to conduct an inquest. Inquests are
conducted in the event of sudden deaths, including cases of
suicide.
They are governed by section 387 of the CPC. It covers deaths
arising in police custody, in prison, roads traffic accidents, and
other circumstances where it is not readily explainable and not
possible to point out a suspect.
It is the duty of the police to report such deaths to the court. The
role of the courts in conducting inquests is investigatory. It is not a
trial.
After the inquest, the court may identify the person responsible
for the death and recommend his arrest and stand trial. Where
the death cannot be connected with the inquest the file will be
closed and that would be the end of the matter.
Suspects are treated like witnesses but there is not enough
evidence to charge them so the police just give their names to
the court to investigate.
JUVENILE COURTS
Created by the Children and Young Persons Act, cap 141 of the
Law of Kenya and it is repealed by the Childrens Act, which came
into force in 2003.
The Juvenile Court tries young offenders aged below 18. Under
the relevant laws there are procedures that govern juvenile cases.
The procedure to be followed is not prescribed in the CPC, but is
based in the Childrens Act.
Procedure:
1. Matters are heard in camera without an audience,
2. The words conviction and sentence are not used and the
offender, if found guilty is not convicted and sentenced.
The objective is to ensure that children and young persons are
not treated like adults. The objective is to rehabilitate young
offenders; therefore terms, which are commonly associated with
punishment, are avoided. Juvenile courts are not allowed to
impose a custodial sentence unless the offender cannot be dealt
with otherwise.
7
If the procedure is not followed the decision can be thrown out on appeal to
the High Court.
12
13
16
17
(b)
(c)
(d)
Documents it is correct
(e)
20
22
for trial of the case) which should capture the spirit of the
opinion.
PREPARATION AND CONTENTS OF COURT
FILE
1. The Court file (physical file) contains the following; (on top of
the file)
Court of arms
Court names/ place
Case number/ year
Names of suspect(s)
Name of the case
2. Inside the file 1st page contains;
The date
24
10.
When there is lawful need to generate a warrant for
detention.
The CPC does not define an arrest and there is no definition of this
so we resort to case law as in Hussein v Chang Fook (1970) 2
WLR 441 where Lord Devlin stated that an arrest occurs:
1) When a police officer states in terms that he is
arresting; or
2) When an officer uses force to restrain the individual
concerned; or
3) When by words or conduct the officer makes it clear
that he will use force if necessary to restrain the
individual from going where he wants to go; but
4) It does not occur where he stops an individual to make
inquiries.
The provisions relating to arrest found in section 21 40 of the
CPC.
Section 21 provides that in making an arrest the arresting
officer shall actually touch or confine the body of the person being
arrested unless the person submits to the custody either by word
or conduct.
Section 24 provides that the arrested person must be subject
to more restraint than necessary to prevent escape. Once a
person submits to custody of arrestor he should not be tied up. It
is a requirement of a lawful arrest that the arrested be informed of
his arrest.
Article 49 of the constitution any person arrested and
detained should be informed as soon as is reasonably
practicable in a language he fully understands the reasons for
his arrest. This requirement arises from the Common Law. (
Mwangi s/o Njoroge v R (1954) 21 EA 377)
Wheatly v Lodge (1971) 1 All ER 173.
In some circumstances it is not necessary to inform the arrested
person the reason for arrest for example where the arrested:
i)
Person knows the nature of why he is being
arrested;
28
ii)
By Police Officers
By Magistrate
31
33
35
36
the CPC allows the police to enter such a place and search for the
person to be arrested even though they do not have search
warrant.
NB: The police should only carry out a search for the person
when they are in hot pursuit of the person and they are afraid
that he would disappear if they wait for a court to give them a
search warrant.
Section 26 of the CPC empowers the police to detain and
search aircraft, vessels vehicles, and persons and if they have
reason to suspect the same contains stolen property or property
unlawfully obtained. This person may be exercised by other
persons with permission from the commissioner of police e.g.
officers of immigration department, income tax, customs and
excise department.
In all these circumstances the suspicion must precede the
process of stopping a person for a search. Suspicion arising from
the stopping of the search renders the action of the police illegal
under section 26 of the CPC.
Keityo v Uganda (1967) EA 23
Koech v R (1968) EA 108
Section 27. A search on a woman must be done by another
woman.
TOPIC FOUR
CRIMINAL LITIGATION
COMPLAINT AND CHARGE
Introduction
In most criminal cases, proceedings commence at this stage
i.e. by way of indictment or charge. The formal document is
usually referred to as charge in the subordinate courts whereas
38
the court emphasized on the need for the charge to be clear and
unequivocal as a way of avoiding confusion as to what the
accused must meet. The court further was emphatic that such a
confusion cannot be said not to lead to a miscarriage of justice. In
the words of Todd J; Charges and particulars should be clearly
framed so that the accused persons know what they are charged
with, and proper references should also be made otherwise
confusion may arise, and if confusion arises, it cannot be said that
failure of justice may not have been occasioned.
1
39
40
41
STATEMENT
PARTICULARS
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 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 under-linings 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
44
somebody and within the stipulated time they later die, one is
then charged with manslaughter. Like when Pattni was charged
with murder of an employee it takes one by complete surprise
and they usually will need time to go and organize themselves.
DUPLICITY OF CHARGES
Blacks Law Dictionary defines duplicity as charging of the
same offence in more than one count of an indictment or the
pleading of two or more distinct grounds of complaint or defence
for the same issue. It further states that in criminal procedure this
takes the form of joining two or more offenses in the same count
of an indictment.
It is a legal requirement that a charge should not suffer from
duplicity. Duplicity occurs where the charge or count charges the
accused of having committed two or more separate offences 7; it is
said to be duplex and barred for duplicity. Duplicity can be
avoided where a statute creates offences in the alternative,
Section 86 of the Traffic Act provides for offences created in the
alternative e.g. causing death by driving a motor vehicle:
a) driving recklessly;
b) driving at high speed.
c) Driving in a manner dangerous to the public.
d) Leaving the motor vehicle on the road in a manner
dangerous to the public.
All these are stated in the alternative so that you cannot be
charged of two or more but only one of the alternative.
Archbold Jf: Pleadings, Evidence and Practise in criminal cases, London, Sweet and Maxwell ,(5th ed), 1962 at
page 53
46
[1966] EA 459
[1974] EA 83
47
10
12
(1960)
Criminal procedure code
12
(1962) EA 439
11
48
held that the charge was duplex, i.e. it charged with two offences;
interfering with the witness before and after. They should state if
it was before or after. If it was before and after there should been
two counts. Duplicity is allowed in certain circumstances. There
are exceptions to the general rule that courts should not charge
an accused with more than one offence.
Exceptions to the General Rule
1. Where the form of preferring a charge is allowed by statute.
The second schedule of the CPC authorizes charging of 2
offences in one count in respect of:
a. The offence created under section 330 of the Penal
Code in respect of false accounting;
b. Second schedule authorizes offences creates under the
section 304 and section 379 i.e. burglary and stealing.
Form 9, in the second schedule.
In Pope V R
accounting false
13
13
(1960) EA 132
49
to
the
public
having
regard
to
all
the
15
50
(2003)KLR 406
Cap 63 Laws of Kenya
19
(1980) KLR 95
18
51
and
the
ammunition
without
firearms
20
(1962) EA 439
[1966] EA 459
22
[1974] EA 83
21
52
CAPITAL CHARGES
A capital charge is a formal written accusation of an
offence drawn by a magistrate or by a police officer and signed as
required by law for the purpose of use in preliminary proceedings
or in a proper trial. It lies against all persons who actually commit,
who procure or assist in the commission of any crime or who
knowingly harbor a felon.23Accordingly s
Framing of capital charges
The Criminal Procedure Code at Sec.135 (1) makes provision
for the joinder of counts. It provides that:
Any offences whether felonies or misdemeanors, may be
charged together in the same charge or information if the
offences charged are founded on the same facts, or form or are
part of a series of offences of the same or similar character.
Despite the above provision, in framing a capital charge the
general rule of practice is that no other count should be joined to
a count which carries a death penalty in the event of conviction
except where the additional count is based on precisely the same
facts as the more serious charge. In line with this, the Court of
appeal has long held that it is undesirable to charge an accused
person on more than one charge of murder. 24That rule has been
followed in subsequent cases. Furthermore, the same court has
23
Dr. P.L.O. Lumumba[2005]A Handbook on Criminal Procedure in Kenya, LawAfrica Publishing (K)
Ltd,Nairobi,48
24
Mongolia v. R [1934] 1 EACA 152
53
also laid down that a charge of murder ought not be laid with a
count of another offence.25
In the case of Yowana Sebuzikira26 The Court of Appeal
upheld its ruling that there should be no departure from the
established rule of practice that no other count should be joined
to a count of murder or manslaughter, except where the
additional count is based on precisely the same facts as the more
serious charge.
With regard to robbery with violence, the case of Wanjala &
another v. R27 applies. In that case the appellants were charged
with two charges of capital robbery which was a departure from
the general rule but the Court of Appeal was of the view that no
prejudice could have been caused to the appellants as the
robberies formed part of the same transaction and the evidence
in support of one charge was relevant to the other.
In the case of treason, whether the same rule applies is a
matter of conjecture. In practice, however, the treason charges
brought in Kenya have not contravened this rule. It is noteworthy,
however, that in a treason charge, apart from alleging the
particulars of the offence, the prosecution must also state the
overt acts in the information. For instance, in the case of R v.
Raila Amolo Odinga & two others 28the treason charge was
drafted as follows:
CHARGE SHEET
25
26
27
28
54
Count 1
Statement of Offence
Treason contrary to Section 40(1) (a) (iii) and (b) of the Penal
Code.
Particulars of Offence
1. RAILA AMOLO ODINGA AND 2. OTIENO MAK-ONYANGO.
On diverse days between THE 15TH DAY OF July 1982 and 1st
day of August,1982, in Kenya, being persons owing
allegiance to the Republic of Kenya, jointly compassed,
imagined, invented, devised or intended to overthrow by
unlawful means, the government and expressed, uttered or
declared such compassings, imaginations, devices or
intentions by the following overt acts or deeds:
OVERT ACTS- RAILA AMOLO ODINGA AND OTIENO MAKONYANGO.
1. RAILA AMOLO ODINGA: In mid-July, 1982 at Nairobi loaned
Senior Private
55
29
30
Alkaeli v. R
Criminal Appeal No.206 of 1987, C.A, Kisumu
56
of
the
former
charge(offence).This
is
justified
in
32
57
33
34
34
58
offences,
it
is
impossible
to
charge
them
has agreed to be done and not what in fact has been done.
Section 393 of the Penal Code
35
states:
36
Conspiracy will
on
its
completion
by
performance
or
by
abandonment or frustration.
One can join the existing conspiracy (i.e. become party to it
and it is not necessary for all the parties to a conspiracy to
be in contact with each other. What is necessary is that all
35
36
60
parties
to
conspiracy
have
common
purpose
Mawji v R
61
R v Zulu [1961]R.&N.645(N.R)
62
39
63
42
charge
under
notwithstanding
different
sec.135(1)
counts.
which
The
above
provides
any
is
true
offenses
64
theft,
breaking
and
entering
premises,
and
2 ALL ER 516
65
46
66
48
67
68
even after the prosecution case .In this case, at the end of the
prosecution, the evidence had disclosed attempted arson only.
The trial judge then upheld a submission of no case to answer,
but having regard to the provisions of the C.P.C ordered that the
charge be amended to attempted arson and took the appellants
plea on the amended charge.
The court held inter alia that it is not necessary to amend a
charge of committing a full offence in order to convict an accused
person of an attempt. However, in amending a charge, the court
is not entitled to make a new case other than the one put forward
by the prosecution.
QUASHING OF INFORMATION
It was the rule of common law that if an indictment or inquisition
was bad on the face of it, or there was any such insufficiency
either in the caption or in the body of an indictment as would
make erroneous any judgment whatsoever given or any part
thereof , the court may in its discretion quash the indictment 53.
For instance a number of persons may not be indicted jointly for
an offence which must be several. In R v tucker54 ,an indictment
against six people for unlawfully exercising a trade that was
quashed because it was a distinct offence in each case and could
not be made the subject of joint prosecution.
In R V Phillips55 judgment was arrested on an indictment of six
persons (to which four pleaded and were convicted) on the
53
See Arch bold Jf: evidence, pleadings and criminal practice, London, sweet and Maxwell, (5 th edition) 1962 at 88.
4 Burr 2046
55
2 str 921
54
69
ground that the offence was in its nature several and could not be
indicted together for it.
It has however been stated in R v The chairman of London
Sesions ex parte Downes56 that a court is not entitled to quash
an indictment because an examination of the dispositions has led
it to the conclusion that the prosecution would not succeed on the
account.
In Kenya section 276 of the criminal procedure code provides for
quashing of information. it is provided that if information does not
state , and cannot by amendment authorized by section 275 be
made to state an offence of which the accused has had notice , it
shall be quashed either on a motion made before the accused
pleads or a motion made in arrest of judgment .
In the event that section 276 is invoked, a written statement of
every such motion shall be delivered to the registrar or other
officer of the court by or on behalf of the accused and shall be
entered upon the record.
If
an
information
does
not
state
and
cannot
even
after
1954 1 QB 1
70
TOPIC FIVE
IDENTIFICATION PARADES
The Police Form No. 156 pursuant to Force Standing Orders issued
by the Commissioner of Police under Section 5 of the Police Act
57
71
58
58
The court observed that Police Force Orders require a ratio of one
to eight as the minimum; and indeed in many parades the ratio is
between one to ten and one to twelve.
2. PURPOSE
The importance of identification evidence cannot be negated in
criminal procedure. Without prior identification of a suspect who
later becomes the accused person, there cannot be a proper
conviction.
Therefore, it is a trite law that an accused person must be clearly
identified. If there is no identification then the accused cannot be
convicted unless there are other factors connecting him with the
offence.
In R Vs Mwango59, it was held that an identification parade
must be conducted when the identity of an accused is doubtful.
However, where a suspect is known to the witness then there is
no need for an ID parade to be conducted as this becomes an
instance of recognition as opposed to identification of the suspect.
In Ajode- Vs Republic60, the Court of Appeal comprising Gicheru
CJ, OKubasu
60
[2004]2KLR 81
73
So that in
The purpose of conducting ID parades can be said to be twofold:
a) They
are
held
to
enable
eye
witnesses
identify
62
had been a failure on the part of the police to investigate the case
properly, particularly the failure to conduct identification parades
so that the dock identification by the witness nearly 14 months
after the commission of the crime. This identification was
therefore valueless.
b) They
are
held
to
facilitate
due
process
which
is
74
parade
two
years
after
the
crime
and
no
63
75
i.
ii.
The courts have held that the witness should not merely state I
will be able to identify the accused if I see him again. They
should actually give an adequate description of the accused. This
is what will inform the police on whom to include in the parade as
these ought to be persons of similar appearance with the suspect.
64
76
where the
77
vii.
which
may
or
may
69
78
not
contain
the
person
responsible.
viii.
ix.
x.
72
79
xi.
xii.
xiii.
xiv.
xv.
75
80
considered this rule and stated thus The same issue recently
arose in David Mwita Wanja & 2 others v R82, and this Court
stated as follows: The purpose for, and the manner in which, identification parades
ought to be conducted have been the subject matter of many
decisions of this court over the years and it is worrying that
officers who are charged with the task of criminal investigations
do not appear to get it right. As long ago as 1936, the
predecessor
of
this
Court
emphasized
that
the
value
of
81
82
Cr A No 117/2005 (unreported)
83
81
TOPIC SIX
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
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
82
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 Presidents pardon for his
offence.
(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)
83
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
84
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 dont 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
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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.
3.
4.
5.
7.
8.
9.
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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 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
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TOPIC EIGHT
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(a)
That the accused person is always informed that he
may have a lawyer or friend present when the parade takes
place;
(b)
That the officer in charge of the case, although he may
be present does not carry out the identification.
(c)
that the witnesses do not see the accused before the
parade;
(d)
That the accused is placed among at least eight
persons, as far as is possible of similar age, height general
appearance and class of life of himself/herself.
(e)
The accused person should be allowed to take any
position that he chooses, and that he is allowed to change
his position after each identifying witness has left, if he so
desires.
(f) Care should be exercised that the witnesses are not allowed
to communicate with each other after they have been to the
parade.
(g)
(k)
The whole exercise must be scrupulously fair, otherwise
the value of the parade will diminish,
This procedure was endorsed further in Musoke v R 1957 EACA
715
Whenever the prosecution is to adduce evidence based on the
conduct of an identification parade, then the magistrate must
ensure that it was done in compliance with these instructions.
TOPIC NINE
EXPERT WITNESSES
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
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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 witnesses 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
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.
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119
121
122
123
TOPIC TEN
124
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
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(a)
(b)
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131
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3.
4.
5.
Collect and collate date on the operation of this Act for the
purpose of improving the national policy on community
service orders
advice the CJ on any need for enhanclating to revision
under the CPC so that the courts may make better use
ed application of the provisions
TOPIC ELEVEN
138
High court if they were of the view that the evidence contained in
the committal bundles warranted it.
Key to these proceedings were 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 and members of the cabinet
2.
the speaker and members of the national assembly
3.
the clerk and official reporters of the national assembly
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4.
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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 364(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.
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
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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 exercise the power of an
appellate court.
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
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c)
d)
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INQUESTS:
Provisions for inquests read the provisions the provisions were
amended.
TOPIC TWELVE
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
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(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 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.
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provides
that
where
before
or
at
the
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
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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
CHARGED
OF
OFFENCES
OTHER
THAN
THOSE
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.
Administering Oaths these are offences that one can be
charged with where they did not actually administer but
recruited people.
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