The Criminal Procedure is the process through which penal and criminal law 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:
To bring the accused within the power of
the tribunal.
Preliminary investigations to ensure the
crime is one, which should be prosecuted.
Notice to the accused of the offence
charged upon arrest accused has to be told why he is being arrested. Notice to
give charge sheet with information against hi, for him to respond and to defend
himself.
Opportunity to prepare for trial, procure
witness.
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.
Fair trial before an impartial tribunal.
Accused is given an opportunity to say something in his defense. Through
counsel of his own choice.
A right to the review of the case by a
suitable appellate tribunal. Right to review if the accused is not happy.
Under our jurisdiction there are 2 ways of
review:
Review by way of appeal.
Review by way of revision.
Criminal proceedings commenced in the name
of the state of Kenya is tiled R v Accused. In other jurisdiction, such cases
are titled People v Accused or State v Accused. In private prosecution 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.
In law every crime is committed against
the state because a crime is defined as a wrong against the society or the
state. The state is responsible for the society. The state takes the
responsibility to seek redress of the complainant or the victim. The state
protects and defends others. The real victim is also the complainant
particularly in crimes involving private property and against the person. In
all cases the real victim as a complaisant appears as a witness for the
prosecution, and therefore the complainant is not a party to the suit. The
parties are the republic and the accused. The complainant has no right to
appeal only the state can appeal because the complainant is a witness.
STRUCTURE AND JURISDICTION OF THE CRIMINAL
COURTS IN KENYA
In the administration of criminal law the
function of the court is to defend the society from the acts of the criminal.
The courts also uphold the fundamental
rights of the accused person. The courts are alive to the inalienable rights of
the accused person.
Criminal procedure is intended to assist
the court in the trial of suspects.
The criminal procedure helps the court
determine the guilt of the accused.
Most trials in Kenya are conducted by the
subordinate courts. The High Court does try criminal cases but its criminal
jurisdiction is fairly limited. The court martial has limited jurisdiction.
Some courts have appellate jurisdictions. Come courts have appellate
jurisdictions ands the appellate courts are:
The Court of Appeal.
The High Court.
The Senior Resident Magistrate Courts.
MAGISTRATE COURT
Established by the Kenya Constitution, the
court works under Chapter 10, the Magistrates Court Act ands the Judicature Cap
8. The Magistrate courts are classified in 2 ways:
Magistrate courts;
District Magistrate courts:
District Magistrate Court 1
District Magistrate Court 2
District Court magistrate 3
Resident Magistrate court:
Chief Magistrate
Senior Principal Magistrate.
Sub\ordinate courts:
Class 1:
Resident Magistrate’s Court;
Principal Magistrate Court
Chief Magistrate
District Magistrate 1
Senior Resident Magistrate
Senior Principal Magistrate
Class 2
District Magistrate 2
Class 3
District Magistrate 3
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, 2 and 3.
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:
It can impose imprisonment not exceeding 7
years.
It can impose a fine not exceeding K.Shs.
20,000.
It can impose corporal punishment not
exceeding 24 strokes of the cane.(repealed)
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. The Senior Resident Magistrate Court, the Principal Magistrate
Court the Chief Magistrate are appropriate. A District Magistrate can try a
person charged with fairly serious criminal offences e.g. rape, assault,
causing gracious bodily harm.
District Magistrate Court 2
A second class of courts has powers to
impose such punishment as:
Imprisonment not exceeding 2 years;
Fine not exceeding K.Shs. 10,000.
Corporal Punishment of not more than 10
strokes.
Cases triable under the DM2 are theft,
burglary, housebreaking, and offences created under various statutes e.g. the
Traffic Act.
The DM courts are being phased out
particularly DM 1 and 3. These two classes of courts are manned by law
magistrates who are not qualified lawyers. During colonization we began with
the RM courts. The DM were created by the independence
government to accommodate the Africa district courts manned by people who are
not lawyers. Most magistrates in Kenya are now lawyers so few courts should be
headed by lay magistrates. DM where graduate lawyers join as magistrate is the
entry point. They are promoted to Resident Magistrate and not to DM1.
RESIDENT MAGISTRATES COURT
Established under section 3 of the
Magistrate Courts Act. They enjoy wide jurisdiction. The RMs courts are
presided over by the Chief Magistrate, the Senior Principal Magistrate, the
Principal Magistrate or the Senior resident Magistrate or Resident Magistrate.
The Criminal Jurisdiction of the RM court
covers most of the crimes and is set out in section 7 of the Criminal Procedure
Code. Section 7(1) paragraph (a) vest the CM, the SPM, PM and SM courts with
power to pass any sentence authorized by law for the offence terrible by that
court. These courts have jurisdiction to try all serious offences except
treason and murder, which are only triable in the High Court.
Offences permitted are manslaughter,
robbery with violence, arson, rape, etc. They try offences carrying life
imprisonment and death.
Section 7(1)(b) and section 7(2) vest s
the RM court (distinct from others: SRM, SPM, PM, CM) with powers to pass any
sentence authorized by law under section 2789 of the penal code i.e. stealing
stock, section 308 of the Penal code ma\d section 322 of the penal code. The
offences created under this section carry a maximum of 14 years imprisonment,
so the jurisdiction of the RM of 7 years can be exceeded for these offences.
In respect of other offences the jurisdiction
the RM is limited to 7 years imprisonment or a fine not exceeding K.Shs. 20,000
or corporal punishment not exceeding 24 strokes of the cane. Section 8 of the
CPC allows the Judicial Service Commission to extend the jurisdiction of the RM
so that the RM can try cases of this class - SRM or the CJ can post an
appropriate magistrate for that particular case.
RMs courts (the two classes) are courts of
first instance or original jurisdiction. They handle trails not appeals except
appeals from the DM 3 court. 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 do not sit with assessors.
Apart from trials the RMs court has
jurisdiction to:
Preside over committal proceedings.
To conduct inquests.
COMMITTAL PROCEEDINGS
RMs court try criminal cases and committal
proceedings. Section 233 of the CPC - conduction 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 in the High Court for a capital offence.
Objective is that 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 took the form of a
preliminary hearing before magistrate and evidence is recorded by the
magistrate to determine whether the case was worth trying in the High Court.
Replacement of preliminary inquests where magistrate don’t get to the hear oral
evidence. They don’t deal with witnesses. Instead they are furnished with
committal bundles comprised of a bundle of documents relating to the case i.e.
the statement s of the witnesses and the accuses.
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.
If in the opinion of the magistrate the
bundles have a caser triable at the High Court, the accused is committed to the
High Court for trial.
If the documents do not disclose any
offence, the magistrate should discharge the accused.
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.
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
u\out a suspect.
It is the duty of the police to report
such deaths to the police. 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 dearth and recommend his arrest and trial. Where
the death cannot be conn3ected with the inquest the file will be closed and
that would be the end if 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 Children’s Act,
which came into force in 2003. The Juvenile Court tries e Law of Kenya and it
is repealed by the Children’s 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 Children’s Act.
Procedure:
Matters arte heard in camera without an
audience. The words conviction and sentence a re 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.
Young offenders are placed in probation so
that they are taken care of by probation officers and they are counselled.
Other measures taken include discharge where one is guilty but they are left.
There is only one juvenile court in
Nairobi. Elsewhere juveniles are tried by the PM and the RM courts, but they
follow the procedure required when tying juvenile cases,
]
Where the trial is by DM2 and DM3the
juvenile upon being found guilty is not sentenced there but referred to the RM
fir sentencing.
Young persons during sentencing are
treated rather leniently. Custodial sentences are avoided as they expose the
young offender to hard-core criminals.
Keteta v R (1972) EA 532
Minor convicted of attempted stock theft
and sentenced to imprisonment, On appeal to the High Court applied cap 141 a
stated that it was improper for a minor to be sentenced to imprisonment and
went on to discharge hi conditionally.
Main v R (1970) EA 370
This is a robbery case involving a young
person. The Children’s and Young Persons Act compelled the court to hold that
the protection offered under the act could only be taken away but express terms
of section 296 pf the penal code and since it does not do so the young person
convicted were sent to borstal institutions.
Thomas Odinga Mulanya v
R C.A. Criminal Appeal Bo 84 of 1986.
A young person pleaded guilty to
manslaughter and sentenced to three tears imprisonment. He was seventeen tears
at the time of the commission of the crime. On appeal, the court of appeal
found that he ought not to have been sent to prison and his punishment
converted to sic strokes of the cane.
COURT MARTIAL
Established under the Armed Forces Acts
cap 199. It is a subordinate court. It is designed for the maintenance of
discipline among the members of the Armed Forces. Part V creates service
offences i.e. crimes that can only be committed by members of the armed forces.
These include:
Treachery – in case of treason committed
by members of the armed forces,
Cowardice
Offences arising out of service
Mutiny and insubordination,
Disobedience of lawful order from a senior
officer;
absence and desertion without leave;
offences relation to maligning;
drunkenness and fighting;
rowdiness and quarrelling
Offences relating to property belonging to
the armed forces, etc.
The Court Martial consists of:
Senior commission officer who are
commission officers. These are the Commission Officers and the Military
Commission Officers. Senior Commission Officers should be in the
rank of the Marshal and above.
Two other members who are also soldiers,
A judge advocate who is either a
magistrate or an advocate. Te judge advocate is appointed with the consent of
the AG by the Chief Magistrate at the request of the Convening Officer. The
rile of the judge advocate is to guide and advice the court on matters of law.
Proceedings are conducted according to the law. He is like a judge, summing up
the facts and law after both parties including the prosecution do their case.
The judge advocate sums up the case for the benefit of the court. The judge
advocate is a member of the Court Martial and therefore he does not
participate in the determination of the case. He guides the case,
An appeal lies at the High Court to the
decision of the Court Martial. It is with the leave of the Court Martial. It is
not as of right.
The AG has a right in the case of an
acquittal.
Look at the relevant
statute for the procedure.
If the procedure is not followed the
decision can be thrown out on appeal to the High Court.
For an officer who breaks the law against
a fellow member of the armed forces, they are triable in the Court Martial, but
if it is to a fellow citizen, then the case shall be tried in a civilian court.
The same principle applies as regards the abuse of property.
HIGH COURT
The High Court is established under
section 60 of the constitution and has unlimited jurisdiction and inherent
powers in its trial capacity in criminal; cases.
It has appellate jurisdiction over
criminal matters arising from the subordinate courts.
It has country wide jurisdiction. The
criminal jurisdiction of the High Court is ser out in the CPC i.e. secriunb4
which empowers it to try any offence and impose any lawful sentence.
Doesn’t matter that matter is murder or
treason. It can try for sedition or traffic matters, etc.
Apart from original and appellate
jurisdictions it also has a supervisory jurisdiction over the subordinate
courts and inferior tribunals exercising judicial and quasi judicial functions.
This is found under section 65(2) of the constitution. Supervisory jurisdiction
goers hand in hand with Judicial review in exercise of the order of certiorari,
mandamus and prohibition.
The order of certiorari quashes the order
of the inferior court to body. It has been used by the High Court to quash
decision s of inferior tribunals in the area of criminal law.
This is where one feels that the other
court has acted in excess of its powers by the order being illegal and
irregular.
In the case of certiorari the case
is R v Resident Magistrates Court in Nairobi and the
Commissioner of Police Ex Parte Ngecha Industries H.C. Misc
Application No 182 of 1998.
Rons Chesogony v Chief
of General Staff and Others Civil
Appeal No. 84 of 2000.
Ex Parte Ngecha Industries
A certiorari was issued to quash an order
issued by the Nairobi Chief Magistrate authorizing the police to search and
enter and search the premises of the appellant and seize d certain items
contained in the search warrant issued by a Ugandan court, The Ugandan search
warrant had been issued by the Kampala Chief magistrate addressed to the Kenya
Police in Nairobi and requiring the Kenya Police to enter the premises of the
applicant in Nairobi and search out for certain things set out in a list
attached to the warrant and if found forward by the Uganda Attorney General to
Nairobi Chief Magistrate who endorsed it. In execution of the same the Kenya
police seized some goods and removed them from the applicant’s premises. The
applicant moved to the High Court to challenge the legality of the search. In
this case, the law applicable was the Extradition (contiguous and foreign
countries)Act cap76 not the CPC. Under the provisions of this Act, a magistrate
us allowed to enclose a warrant of arrest issued in another country issued for
the arrest of a person in Kenya. The Act does not provide for the endorsement
search warrants, the order was therefore illegal and unlawful and it was
quashed. The magistrate had acted in excess of his jurisdiction by endorsing
the search warrant.
In the other two cases the jurisdiction of
the High Court was used to quash the proceedings of the Court Martial. In both
cases the procedure o the Armed Forces act had not been complied with,
In Ronald Muge the
complaint was in relation to the appointment of the judge advocate where he
latter was appointed by the CJ without the consent of the AG. The proceedings
were defective and quashed.
PROHIBITION
Prohibition is used to prohibit the doing
of such acts which are ultra vires or contrary to the rules of natural justice
by an inferior court or tribunal. The order is available where the court acts:
in excess of it jurisdiction;
denies the accused a fair hearing.
In the case of Amrik Singh v
the Resident Magistrate Court in Nairobi H.C. Misc App. No 117 of 1982 a
trial magistrate allowed an amendment of a charge without giving an opportunity
for the advocate of the accused to be heard on objection before the amendment
was allowed. An order prohibition was granted by the High Court to prohibit
further proceedings in the matter.
In Jared Benson Kangwana v
AG H.C. Misc App 446 of 1996 an order of prohibition was made
to prohibit the Nairobi chief Magistrate from hearing a criminal case against
the applicant, on the grounds that the criminal trial against the accused was
an abuse of the process of court.
It was held that the said criminal
proceedings against the applicant were instigated and maintained by 3rd parties
particularly the TransNational Bank with a view to exert pressure on the
applicant to pay the debt owed to the bank. The charges against the applicant
were preferred after he sued the bank on a civil matter. The court
concluded that the e was bad faith on the part of the bank and proceeded to prohibit
the trial.
In the other case the matter of an
application by Kamlesh Pattni & Others H.C. Misc. Appl.
1296 of 1998. AN order of prohibition was made prohibiting the Kibera
DMs court from proceeding with the charges against the applicant on the basis
that the charges were an abuse if the powers of court. In the case of Pattni,
the charges had been instigated by business rivals, the charges were intended
to give credibility to the rivals counter claim filed against Mr. Pattni.
Should a prohibition be issued against a 3rd party?
Some judges argues that it is improper for the claim to be against
a 3rd party and not the court.
Deepa Panachand
v AG H.C.
Misc. Appl.199 of 2000
John Wambua v Principal Magistrate Court
Kibera H.C. Misc Appl 328 of 2000
In both cases H.C. refusal to grant an
order fro prohibition to stop a criminal trial. In both cases the judge stated
that the complain was real that the 3rfd party rather than the court was acting
improperly and there is no basis of prohibiting the court.
In the Wambua case the complainant was
that the KWS was using the prosecution to prosecute the applicant.
The H.C. also has revisional jurisdiction
under the section 362 and 367 of the CPC. Revisional jurisdiction is intended
for correction of errors at the trial court which are not appealable in law. It
is therefore supplementary to the appellate jurisdiction of the High Court.
Revision was sought in Obiero v
Republic (1962) EA 650 by the state for the enhancement of
the sentence from absolute discharge to conditional discharge. The state was of
the opinion that the discharge occasioned injustice.
The tae had no right of appeal and the
only way of attaching the sentence was by way if revision. The High Court has
the power to revise on its own motion without being moved by any of the
parties.
The High Court can also revise a trial
court order of a party who has the right to appeal but does not appeal. R
v Singh (1957) EA 882.
Revisionary powers should not be exercised
where an appeal has been launched. Revision is sought mainly in cases wirer
there are errors e.g. misquoting provision s of the law. In civil cases
revision is referred to as review there is an apparent error in discovered
after the trial.
The High Court has jurisdiction to issue a
habeas corpus order. This is like other orders in a prerogative order and is
issued at he discretion of the H.C. and it secures the release of any person
and authority. The High Court uses the same to execute control over the police
and prison authorities where they hold a person without legal authority.
Provision is under section 389(2) of the CPC and it literally means “produce
the body” as is directed at the person holding the applicant.
Re Ali rehman (1960) EA 302
An order of Habeas Corpus issued and
directed at the commissioner of prisoner and eh officer in charge off Luzira
prison provision in Uganda to release the applicant who was legally in prison.
Re Application of
Muthoni Muriethi on Behalf of Mwangi Stephen Mureithi (Nairobi H.C. Misc Criminal Appl 88 of 1982). Mwangi
was at the time Assistant Director of the Intelligence and Moi transferred him
to the Manager of the Uplands Bacon Factory. He was arrested and held in
custody with his lawyer, John Khaminwa. The wife sought an order of habeas
corpus. Unfortunately, the court did not get to issue the order for he was
detained.
The order was not against the director of
the CID to produce the body of Mwangi Stephen Mureithi.
Republic v Commissioner of Police and
Director of CID Ex Parte Raila Odinga (Nbi. H.C. Crim App 344 of 1988).
Brought by the wife of Odinga after he was
arrested before he was detained.
Re Ibrahim (1970) EA 168
It has been held that High Court can only
issue in respect of a living person.
Held in Stephen Baraka Karanja
v R (Nbi High Court Crim App 374 of 1998). The case was at ht
height of the Mwakenya. Karanja was arrested in Limuru disappeared for a week.
The wife sought the order. Police were unable to state his whereabouts, he had
been tortured and killed and then buried. The state argu4e that Habeas Corpus
could not issue for the person was already dead. The judge held that Habeas
corpus means produce the bodies.
The CJ then decided to change the case to
Akilano Akiwumi instead of Schofield (the police officer who had taken him to
Nakuru, tortured, killed and buried him) who said that Habeas Corpus applied
only in regard to living persons.
JURISDICTION IN CONSTITUTIONAL MATTERS
High Court has jurisdiction over the
constitutional matters whether civil or criminal.
Section 84 and section 67 of
constitutional.
Section 84 the High court protects the
fundamental rights of individuals. Enables individuals who are complaining of
infringement of their rights to approach the High Court. This provision has
been used to prohibit criminal proceedings which are in the opinion of court an
abuse of court process.
Stanley Munga Githunguri v R High Court
Crim Appl 271 of 1985
The High Court ruled that the prosecution
was an abuse of he process of court and granted a prohibition order under the
section 84 of the constitution. Section 84 would be applied where judicial
review cannot be done and is not available.
Section 67 of the constitution places
primary duty of interpreted the constitution on the High Court. In the
magistrate’s court whenever a constitutional issue arises during trial should
refer the matter to the High Court for interpretation. This is essentially a reference
by a magistrate i.e. it is the magistrate who refers the matter to the High
Court on either its own motion or on application by the parties.
Reference initially goes to the CJ who
must probate on the basis of merit. If he finds merit, he should appoint a
constitutional court.
He has stated on a number of cases that
the CJ has exclusive administrative power to examine the issue and determine
whether it justifies the convening of a constitutional court.
Githungiuri v R Misc Appl 180 of 1985.
G.B.M. Kariuki v R H.C. Misc App 382
Samuel Okello & 3
Others v Chief Magistrates Court Nairobi H.C. crim App 182 of 2000.
Here the counsel for the accused had
applied before the magistrates court for a number of documents to be furnished
to the accused by the prosecution. Facilities to help defense included
statements recorded at inquiry and documents of evidence for the trials.
A constitutional court appointed a=under
section 67 must be made up of 3 High Court judges whereas a court
appointed under section 84 need not have 3 judges but the CJ may determine how
many judges will hear the case.
COURT OF APPEAL
Established in 1977 after the collapse of
the EAC. Established under section 64 of the constitution and is the highest
court in the country.
It enjoys appellate jurisdiction conferred
by section 3 of the Appellate Jurisdiction Act cap 9. It has no original
jurisdiction and therefore cannot revise a decision of the high court and
cannot enhance a sentence.
It hears appeals from the High Court whether
original or appellate. Some acts of parliament make decisions of the High Court
final so no appeal in such cases can lie in the Court of Appeal. For example
appeals from court martial under the armed forces Act cap 499
Kabilu v R 1982 – 88 KAR 584
Applicant had been convicted by a court
martial of taking part in a mutiny and sentence d to 8 years imprisonment and
dismissed from the armed forces. His appeal to the High court was dismissed and
he filed a further appeal to the court of appeal which was dismissed for being
incompetent for want of jurisdiction of the court of appeal.
INITIAL STAGES OF THE
CRIMINAL PROCESS
Substance of Procedure
ARREST
Occurs when a person restrains freedom of
movement of another, it amounts to a deprivation of personal liberty. Under the
Kenyan Law, enjoyment of fundamental rights and freedoms is subject to public
interest. There is a provision for derogation from the rights and
freedom for public interest.’
Section 85 provides fro derogation for the
same of public security. Right to liberty and movement is enshrined in section
82 of the constitution. For criminal procedure purposes the right to liberty
may be derogated:
In the execution of a court sentence.
In the execution of an order of the High
Court and the Court of Appeal for contempt.
In the execution of a valid court order
for the fulfillment of an obligation of those in law.
To bring a person before the court an
order . This is where he court issues a warrant of arrest for person to be
brought to court,
On reasonable suspicion of a person being
about or having committed a criminal offence,
For those below age of majority for their
education and welfare e.g. children in custody.
Purposes of preventing spread of
contagious and infectious diseases.
Confinement of persons suspect of being of
unsound mind, people addicted to alcohol or to drugs for the purpose of their
case.
For the purposes of extradition from Kenya
/ prevention of entry.
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:
when a police officer states u terms that
he is arresting; or
when an officer uses force to restrain the
individual concerned; or
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
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.
Section 72(2) of the
constitution – any person arrested and detained should be
informed as soon as is reasonably practicable tin 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 circumstance s it is not necessary
o inform the arrested person the reason for arrest for example where the
arrested:
person knows the nature of why he is being
arrested;
where he suspect runs away from his
arrestors.
Christine v Leachinsky (1947) AC 573 (1946) KB 144
Court here discussed the
circumstances where it is not necessary to inform the person of reasons for his
arrest.
An arrest can be effected either with or
without a warrant.
An arrest can be enforced either by a law
enforcing agent (police, DO, DC, and Immigration Officer)or by a
private person.
In either case the pier of arrest must be
exercised reasonably within the law.
Where unreasonable force is used or where
an arrest is unlawful note that there exists remedies in civil criminal law to
redress wrongs committed against the victims. This is a constitutional
right - the right to personal liberty so if it is to be deprived
there should be remedies.
ARREST WITHOUT WARRANT
By Police Officers
Police officers are bound by virtue of the
police act and Administration Police Act to maintain law and order in society.
In the normal course of their
duty they carry out arrests,
Most arrests without warrants are committed
by police officers during the course of their duties. Powers of police officers
in arrest, prevention of crime and investigations are covered by the CPC and
other statutes.
The CPC is the main legislation covering
arrests.
Section 29 of the CPC sets out
circumstances in which police officer may arrays a suspect without a warrant by
the curt. They are:
Person suspected of having committed as
cognizable offence.
person who commit a breach of the peace I
his presence.
person obstructs officer as he exercises
his duty;
person who escapes or attempts to escape
from lawful custody;
person who is suspected upon reasonable
ground of being a deserter in the armed forces;
person found in a street or public place
at night and suspected reasonably of being there for an illegal purpose or
unable to give a reasonable explanation or give account of themselves.
person with instrument of housebreaking
without reasonable excuse;
reason of possession of anything suspected
to be stolen property;
person reasonably suspected of having
committed an extraditable offence (Offence committed in another country by
suspect or offence where one may be extradited from Kenya).
Person for whom he has reasonable cause to
believe or not been issued. Under section 30 a police officer may arrest
without a warrant persons who are vagabonds, habitual robbers and
thieves.
Under section 32 – a person who has
committed a non-recognizable offence ( offence in respect of which police
require warrant of arrest – minor offences) refuses to give his name or
residence, police may arrest without a warrant.
What happens to people arrested without a
warrant.
Section 33 of the CPC requires that a
person arrested without a warrant e taken to a magistrate or person in charge
of police station as soon as possible and thereafter to court.
The decision to charge the person taken by
the OCS.
Section 3b – when arrested person is taken
to the police officer in charge of the PS the Police Officer may inquire about
the case and release of the person on bond unless he is suspected of having
committed a capital offence or the offence is found to be serious in nature.
The officer in charge may set the suspect
free altogether if he finds that there is insufficient evidence altogether.
The provision of the CPC are further
entrenched by section 73(3) of the constitution which provides that the
arrested person who is not released should be brought to the court as soon as
is reasonable practicable. At any rate within 24 hours of his arrest in cases
of offences other than those punishable by dearth e.g. burglary, theft and
within 14 days of arrest for capital offences.
Section 73 is an inclusion in the constitution
– before it was that the people should be brought to court within 24 hours.
There is an amendment. It was found that it would be unfair if one would be
arrested and charged immediately when they were innocent.
In Imanyara v Nairobi H.C. Misc
App. No 125 of 191 it was stated that in situations here a person
is arrested without a warrant, 3 statutory provisions are relevant. These are:
Section 72 of the constitution – provision
relating to the deprivation of property.
section 3b of the CPC –p Provision
relating to the production in court of a person arrested without a warrant.
Section 29 – 39 of the constitution
– provisions relating to arrest without warrant.
Also stated that the effect of a
combination of the provision of the CPC is that the prisoner should be brought
to court as soon as is reasonably practicable as soon as he ends up in police
custody if he is not released on bail from the police station.
BY MAGISTRATE
Section 38 of the CPC empowers the
magistrate to personally arrest an offender or order any person to
do so when an offence is committed in his presence or his jurisdiction.
He may thereafter release the offender on
bail or commit him to custody.
Under section 39 of the CPC
a magistrate may arrest or o4rder arrest in his presence within the
local limits of his jurisdiction any person whose arrest by magistrate is
competent oat the time and can issue a warrant of arrest. He can only arrest a
person within his jurisdiction(????).
It was stated in the case of Kionywaki
v R that in effecting an arrest magistrate acts as a
judicial officer and not in an administrative capacity and cannot be subject to
civil and criminal proceedings.
3) PRIVATE PERSONS
Section 34(1) grants a general power to
arrest anyone who in his view commits a cognizable offence or who he
suspects of committing a felony. This enables members of the public to arrest
someone.
Section 34(2) allows property owners and
their servants or agents to arrest without warrant any person who comm8itrs any
offences of damage or injury to property.
Private persons should use reasonable
force just like police where the person to be arrested resists.
Use of unreasonable force to effect an arrest
my lead to criminal and civil liability (assault/false imprisonment and
battery).
In Uganda v Muherwa A
private person who used a weapon to incapacitate the deceased suspected to
be thief in the process of which he died was prosecuted and
convicted of manslaughter.
In Beard and Anor v R the
appellants, two private persons arrested the complainant, tied him and
assaulted him although he made no attempt to escape. Delayed in handing him to
the police. Prosecuted for assault and unlawful confinement. Convicted of these
offences as they used unreasonable and unnecessary force.
Under section 35a person arrested by a
private persons without a warrant should be handed over to the police without
delay. The police, depending on the circumstances, should rearrest him or set
him free.
4) BY CHIEFS
Section 8 of the Chiefs Act (cap 148)
empowers a chef and an assistant chief to arrest any person for the purpose of
preventing them from committing a crime in their jurisdiction.
Empowers them to arrest any person who
commits a cognizable offence. In the eyes of the law chiefs and the assistant
chiefs are police officers.
In Lamabutu v R the
court recognized chiefs, assistant chiefs, PCs and DCs as police officers.
AREREST WITH WARRANT
Mainly required for minor offences and
misdemeanors (less than 3 years). Warrants a\of arrest are issued to secure
attendance of person in court. This procedure of securing attendance is applied
mainly in cases where the proceedings are commenced by first\ laying a charge
in court.
After lying a charge in court you seek his
attendance in court as opposed to police arrest then the accused is taken to
court.
This procedure is mainly used by private
prosecutors e.g. labour officers.
As an alternative to an arrest warrant, he
prosecution can apply for summons to issue against the accused person.
Under section 90 with respect to private
prosecutions upon receiving a complaint fled by private prosecutors, the courts
may either issue summons to accused or warrant to compel attendance in court.
The proviso to section 90 states that a
warrant be issued unless a complaint is made by private prosecutor.
Under section 100 a warrant of arrest may
be issued to a person served with a summons to appear in court.
Section 101 warrants of arrest are issued
where the accused disobeys summons.
Section 102 – warrant s of arrest must be
in written form signed by the magistrate and it must bear the seal of the
court.
It must briefly state the charge against
the suspect and describe the suspects details so that the poison receiving the
warrant knows the offence charged.
NB: A warrant of arrest is directed to a
particular person ordering him to arrest the person in respect of whom it is
issued and bring them to court.
Person is OCS, OCP.
Not issues generally to the police, but a
particular person is that they are accountable.
Warrant of Arrest remains in force until
either execution o cancellation by the courts is issued.
Kingori s/o Kiranditu v
R
It was stated that any person or police
officer to whom warrant is issued is bound to execute it like the court which
issues the warrant, he is protected by judicial immunity.
Sometimes in private prosecution when the
police is unwilling to arrest a person, once one goes to court a arrant of
arrest is issued the police have tom\ comply.
Section 103, the court issuing a warrant
may direct security t be taken in respect of an offence other than murder,
treason, rape in which case the officer such release such person in court if
the warrant allows for the release of the person on bond.
The warrant of arrest may be directed to
the following persons:-
Police officers – usually to one
particular officer or officer in charge or to all other officers in a particular
division.
To a land owner, manager and farmer of
land. Warrant issued to such persons is to allow them to arrest any person who
enters their land. On arrest they should hand over the accused to the nearest
police officer.
By virtue of section 107 the person
effecting arrests should notify the substance of the warrant to the suspect and
if he is required b y the suspect and show him the warrant.
Section 22 imposes duty on an occupant of
premises or any person in charge of premises to afford all reasonable
facilities of arrest i.e. to allow the person to enter premises discharging a
warrant arrest, i.e. to allow the person to enter promises to effect an arrest
if there is a reasonable suspicion that the suspect is in those premises. The
facilities should also be provide to such persons to enable them to search the
premises. Where no reasonable facilities are allowed (I.e. access) the officers
may break in even without a warrant. Only break in when they are not allowed
entry).
Section 22(2) women in occupation of
premises who are not suspects and who by custom do not appear in public should
be given reasonable facilities to withdraw (Muslim Women).
Section 23 allows arresting persons to
break out of the premises to liberate themselves.
The CPC provide elaborate procedure where
the arrest has to be effected outside the jurisdiction of court.
Section 10 – The warrant may be forwarded
by part or otherwise to the magistrate within the local limits where the
jurisdiction it I to be executed.
The magistrate to whom the warrant is
forwarded should. Endorsement is crucial (within his jurisdiction). It is his
responsibility to cause it to be executed.
Under section 111 instead of the warrant
being forwarded to the magistrate within whose jurisdiction local limits to
which it is to be execution the issuing the court may direct it to a police
officer to take it for endorsement by a magistrate within the local limits.
NB: the police officer may execute the
warrant without the endorsement if there is reason to believe the delay will be
occasioned by obtaining the endorsement. Officer has to be executed certificate
explaining the same. If it is not so endorsed and if it is enforced without
endorsement, the arrest will no doubt be unlawful/.
A person arrested outside the local
jurisdiction of the issuing magistrate may be taken. Before the magistrate
within the local limits of whose jurisdiction the arrest was made. Necessary to
avoid holding the person for more than 24 hours. Apart from the police, the
court of law and private persons, other tribunals discharging functions of a
judicial nature have powers to issue warrants of arrest. For example the Rent Tribunal,
judicial commission of inquiry.
Section 30 of the National Assembly powers
and privileges Act, vest the powers on the members of the National
Assembly to arrest.
SEARCH AND SEARCH WARRANTS
Like arrests, the search of the premises
of the suspect and seizure of the property of the suspect infringes on the
fundamental rights and freedoms of the individuals and in particular the right
to privacy.,
The enjoyment of the right to privacy of
the freedom for the invasion of privacy should be weighed against the rest of
the society at large in finding out wrongdoers and redressing crime. The
invasion of privacy of the individual in the interests of the society should be
done properly within the law.
Search warrants governed by section 118 –
122 of the CPC
A search warrant is defined as an
authority to search a place for evidence of a crime which is suspected or
believed to have been committed or to make an arrest of a suspected criminal.
A search warrant authorizes the person to
whom it is addressed to enter a place or premises described in the warrant. If
the item is found, it should be siezed and taken to a court having
jurisdiction.
Note: Warrant described the premises to be
searched and the item to be searched for. If the premises is not the right one
it is an illegal search and the owner may commence proceedings on tortuous
liability.
A police officer having reasonable
suspicion that there is evidence in a certain place for the investigating of a
crime, he may apply to the court for a search warrant authorizing him to search
the place.
Under section 118 of the CPC it is
necessary that the be evidence of a reasonable suspicion which must
be given on oath. The Police officer must show hat there is reasonable ground
for suspicion and given by way of an affidavit sworn by the officer.
Under section 119 of the CPC a se4arch
warrant may be issued on any day including Sunday for urgent matters.
A search may be conducted witch or without
a search warrant. Where the same is conducted with a search warrant under
section 120 of the CPC there is an obligation on the person in charge of a
closed place or premises to allow ingress and egress in and from the premises
to allow them to enter and t leave for searching.
Failure to provide such allows the police
officer to use force to enter or break out of the premises.
By virtue of section 104,106, 109, 110 and
111 of the CPC on warrant of arrest also applies to search warrants,
i.e.:
Warrant should be in the hands of the
magistrate or the judge issuing it and it must be signed;
it should bear the seal of the court;
it must state the offence against the
accused person in respect of which it is issued;
may be directed to one or more police
officers or to all other police officers in the relevant area.
If it is to be conducted outside the
jurisdiction of the court it must be endorsed by the magistrate within the
local limits of which the search is to be conducted.
May be executed without endorsement in
courts where there is delay.
The directions in the warrant
must be strictly observed – articles, items not in the warranted should not be
seized. Only what is mentioned unless they a r likely to produce additional
evidence as to the identity of the items or they are relevant to the charge.
The seizure of irrelevant articles is
legally unjustifiable and in most cases causes damage to the prosecutions case.
Vivendi v R (1957) EA 355
Appellant is convicted in district court
of Bussaga of being in possession of property reasonably suspected if having
being stolen. Failure to give a satisfactory account of possession. Police was
acting on information received. They searched the house and shop of the appellant
looking for a camera and expensive sunglasses which they did not find. Instead
they found a tiny box and exposure between under the counter said to have been
left by V 3 months ago. V admitted leaving expensive meter with the appellant
but denied that the meter in question was the on deposited by him with the
appellant. V called as prosecution witness and denied ownership of the meter
found in the shop. He denied ever depositing the exposure with the appellant.
No search warrant produced by police and the only evidence in the shop was the
oral evidence of the police against him which was inadmissible under section 63
of the evidence ordinance.
It was held that it is possible to
establish that a particular search was conducted under the authority of a warrant
without proving contents of warrant.
The evidence did not justify a reasonable
suspicion that the exposure meter had been stolen.
Circumstances where a search is conducted
without a search warranted.
Where a person who is being sought by the
police to be arrested enters a place where the process of getting a s4earch
warrant would give the fugitive a chance to escape, section 22 of the CPC
allows the police to enter such a place and search for the person t be arrested
even thought they do not have search warrant.
NB: The police should only carry out a
search fro the person when they are in hot pursuit of the a 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 s 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.
Where section 26 discusses at length
Keityo v Uganda (1967) EA 23
Koech v R (1968) EA 108
Section 27 A search to a woman
must be done by another woman.
CHARGES AND INFORMATION
Under section 89n of the CPC criminal
proceedings may be instituted in 2 ways:
By way of making a complaint;
by the production in magistrate court of a
person who has been arrested without a warrant.
COMPLAINT
Any person affected by the conduct of
another may make a complaint to a magistrate having jurisdiction.
Under section 89(3) the complaint may
either be oral or written.
Oral – it should be reduced into writing
by the magistrate. This helps illiterate people who cannot write an affidavit
on oath. Thereafter the magistrate should sight the same.
Under section 89(4) the magistrate upon
receiving the complaint should draw up or cause to be drawn up a formal charge
based n the information given by the complainant.
Magistrate may refuse to admit the
complaint or formal charge drawn up if the same does not disclose any offence,
He must give reasons for refusing to admit a complaint. These proceedings are
in chambers and are not in open court.
The process of commencing proceedings is
not commonly used in private prosecutions. Otherwise a complaint is usually
made at the police station. Police conduct preliminary investigations and then
arrest accused person or make a complaint to magistrate then get a search
warrant and then the arrest warrant.
PRODUCTION OF THE ACCUSED IN COURT
Where the accused is arrested without a
warrant the law requires that they are brought to court as soon as possible
without delay.
Under section89 the arresting officer may
draw up the formal charge against the occupied and present him to the
magistrate(section 89(4))
Where the formal charge is drawn by the
police if it should be signed by the officer in charge of the police station.
Alternatively the accused may be presented
to the court where the magistrate under section 89 (4) may draw up
and sign the same.
Both circumstances under section 89(5)may
decline to admit the charge if the charge does not disclose any offence.
The court does not normally draw the
charge.
WHAT IS A CHARGE
A charge is a complaint formally drawn up.
A formal written accusation of an offence is drawn up by the magistrate or
police officer and signed as required by law for use in a c criminal trial or
preliminary proceedings (committal proceedings).
A charge is an equivalent of pleadings in
civil cases. It contains allegations against the other party.
It is drawn up to inform the court of the
offence allegedly committed by the person it is called upon to try.
To inform the accused of the allegations
against him so that he can prepare a defense.
Mandatory requirement that a charge must
be based on some known offence
Under section 77(8) of the constitution,
it is provided that no person should be convicted of an offence unless
the offence is defined in written law.
Each charge is based on known offence in
written law. The charge should be in the prescribed form. Section 134 of the
CPC prescribes that it should contain 2 essential elements:-
The statement of the offence
The particulars of the offence.
Look at the second schedule of the CPC
pages 150 – 156 for the prescribed forms.
The charge should describe the offence
briefly and plainly and concisely. It should not contain any evidence.
Technical terms should not be used. Because this is a document to be given to
the accused who is a simple person who does not understand such terms.
Therefore it should be in ordinary language for ordinary people to understand.
The statement of the offence usually states
the law and the procedure and the particular section of the law
which have been allegedly offended.
The particulars of the offence should
contain the date and the place where the offence was allegedly committed, the
subject matter of the charge (acts which make it an offence). The particulars
should contain the identity of the complainant and accused, for example to whom
the house burnt belonged to.
With respect to sections the requirement
is that the charge should state the sections and subsections of the offences
charged. Thee penal code or statute may create a number of offences in one
section so sometimes the charge may state the wrong or non-existent section or
subsection. The effect of such lapses would depend on whether the same occasion
or a miscarriage of justice.
If in the opinion of the appellate court
no injustice was occasioned on the accuses by citing the wrong section, the
conviction shall stand.
However where the court sees the citation
of the wrong section causing a miscarriage of justice the trial would be
declared a nullity.
Avone v R (1969) EA 129
Appellant was charged with
three counts of obtaining credit by fraud or forgery and of impersonation. The
relevant sections of the penal code under which 2 of the counts were laid were
misdescribed. The appellant was convicted on all 3 counts.
He appealed on grounds that the conviction
was based on a defective charge and that therefore the conviction was a nullity
in law. The High Court dismissed the appeal and found that the misdescription
for he charge had not occasioned any prejudice on the appellant.
Similarly in Sabur v R (1958)
EA 126 the appellant was charged with committing a traffic
offence contrary to section 39(1) instead of being charged under section 40(1)
of the Traffic Ordinance of 1951. Section 39(1) of the said statute did not
create the offence was not arrested by section 39 but by section 40.
He was tried and convicted. The appellant
was tried and convicted He appealed against the conviction grounded on the
defectiveness of the charge and that it should be dismissed.
It was held that since the particulars of
the offence were adequate to inform the appellant of the offence with which he
was charged there had been no failure of justice and the defect was
curable under the CPC section 382 which provides that unless the defect in a
charge occasions a failure of justice or prejudices an accused person an order
for conviction based on the defective charge should not be quashed.
Where grave defects exist the court should
declare the charge defective and improper. Particularly where the particulars
of the charge do not disclose the offence.
Uganda v Keneri Opidi (1965) EA 614
The particulars of the offence should be
clear in order to enable the accused person to know the offence he is charged
with. The charge should be such that it is easy for them to defend
themselves. Clarity is a requirement.
Musoke v Uganda (1972) EA 137
It was held that the charge of robbery
which stated that a complainant was robbed of household goods without stating
the identification and particulars of the goods stolen, did not disclose the
offence of robbery. State that the goods were stolen so that the accused know
what they stole.
Kigecha Njuga v R EA 773
The accuses while driving a disguised car
was chased and arrested by police from a tip off by a n informer. Under the
driver’s seat the police found a Simi. He was charged with being armed by day
with the intent to commit a felony contrary to section 305(1)(d) of the penal
code.
The felony that the accused was charged
with was not stated. He was convicted and on appeal the High Court set aside
the conviction on the basis that the intended felony ought to have been
disclosed din the charge if there was doubt a to the intended
felony, different felonies should have been stated in the alternative.
Nahashon Marenya v R Nairobi H.C. Criminal Appeal 786 of 1982
Appellant had been charged with failing to
comply with a curfew restriction order, contrary to section ((1) of
the public order Act. Particulars of the offence did not disclose the details
of the curfew restriction order that the appellant had allegedly failed to
comply with, when the curfew order started and ended.
It was held on appeal that the charge did
not disclose an offence. The details were insufficient. They did not disclose
enough details to assist the accused in his defense. Todd J said of the charges
and particulars:
“charges and particulars should be clearly
framed so that the accused person may know what they are charged with and
proper inferences should also o be made otherwise confusion may arise and if
confusion arises it cannot be said that failure of justice may not have
arisen.”
An error in the particulars is not
necessarily fatal to the charge unless it has occasioned injustice on the
appellant,
Mwasya v R
Sometimes the charge may contain no
particulars at all or it may contain the wrong ingredients. A charge would be
incurably defective for lack of particulars. The accused ought to be
discharged.
Kubanisi v R (1965) EA 572
The charge was framed in the following
terms:
Particulars of Offence
Attempted to commit an offence contrary to
section 398 of the penal code.
Particulars
Wander Reuben Kubanisi on the 29th of
January, 1965 at 8.00 pm at Bungoma Railway Station attempted to commit a
felony contrary to section 389 of the penal code.
The appellant was tried and convicted. On
appeal the High Court found the charge barred for uncertainty as it did not
disclose the felony alleged to have been committed.
A charge would also be incurably defective
if it contains the wrong ingredients of the offence or if it omits an essential
ingredient.
Yosefu and Anor v R
The Appellant was charged with being in
possession of game trophies without a valid license contrary to section 14 of
the Games (Preservation and control) Act ( a Ugandan Statute) The trophies were
listed as 17 drums made put of zebra skins and 40 pieces of zebra skin. Section
14 of the Act provide that it shall be an offence for any person to possess any
other part of any animal which has been killed captured etc. The accused
pleaded guilty and was sentenced to pay a fine.
On appeal he held that the charge was
defective in that it did not allege an essential ingredient of the offence,
i.e. that the skins came from animals killed, captured in contravention of the
Act. Spry J said that it is essential that every charge should allege all the
essential constituents of an offence.
The appeal was allowed.
Ngige s/o Gatonye v R
Appellant was charged with moving maize
without a permit contrary to section 24 of the Maize Marketing Ordinance. On
appeal they found that the particulars of the charge did not conform to section
24(2) of the ordinance. The particulars do not refer to any such order. The
charge should have stated that the maize was moved without a permit.
It was held that the charge was bared
because it did not mention the order concerned. The relevant order to be
mentioned as contravened was the Maize Marketing (Movement of Maize
Products) Order.
Shah v R
This case shows that in cases of stolen
property, the charge will not be barred or defective if it omits to name the
owner of the property. A conviction based on a charge where the charge omits to
name the owner of the property cannot be c=quashed on that count provided there
is evidence that the property has been stolen.
HOW TO FRAME A CHARGE
Section 137 of the CPC provides detailed
rules for the framing of a charge.
PART A
The form and structure of the charge:
The charge should commence with a
statement of the offence charged called “statement of offence””.
The statement of the offence should
describe the offence in ordinary language, without stating all the essential
elements of the charge. Disclose the section of the statute or enactment of the
offence.
The form of the charge should conform as
nearly as possible as the form provided in the 2nd schedule
of the CPC.
Where the charge contains more than one
count or the charge has various offences the counts should be numbered
constructively.
PART B
Description of Property
Description of property should be in a
simple and straightforward language which is easy to understand.
It should indicate clearly the property
referred to.
Where the property is owned by more than
one person, it should suffice to describe the property as being owned by one of
the persons. You do not have to list all the persons.
If the property is owned by a body of
persons with a collective name, it would to use the collective without naming
any individual owners,
If property belongs to or is provided for
use by a public establishment, service or department, it may be
described as policy. It may be described as property of the government.
If there are coins, bank notes or valuable
currency, these may be described as only money.
PART C
Description of Person
The description or designation of the
accused person or of another person to whom reference is made should be
sufficient to identify him. Use names.
If the name of the other person is unknown
or for some person it is impracticable to give such a designation or
description, a description may be given or described as a person unknown.
PART D
Documents
These should be referred to by name or by
designation or purport.
there is usually no need to state the
contents of a document in the particulars of a charge.
PART E
Provisions as to statutory offences
Where an enactment constituting and
offence states the offence to be the doing or the omission to do any one of any
of the different acts in the alternative or the doing or the omission to do any
act. In any one of the many different capacities or with anyone of the
different intentions or any part of the offence in the alternative, the act,
omissions, capacities or intentions stated in the alternative in the count
charging the offence. Section 181 of the CPC and section 21 of the CPC.
DUPLICITY OF CHARGES
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, It is
said to new duplex and barred for duplicity. Duplicity occurs when a statute
creates offences in the alternative, Section 86 of the Traffic Act illiterates
for offences created in the alternative e.g. causing death by driving a motor
vehicle:
driving recklessly;
driving at high speed.
Driving in a manner dangerous to the
public.
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.
A count charging the accused of causing
death by driving the motor vehicle recklessly and at high speed is duplex. The
charges should be expressed in the alternative:
Mwambalafu v R (1966) EA 459
The appellant was charged with the
alternative counts of an offence i.e. the offence of arson and attempted
murder. The particulars of the charge o arson alleged that the appellant had
set on fire two houses, one belonging to A and the other belonging to B The
houses stood more than 100 yards apart.
He was charged with one count of murder
and one count of arson. The particulars stated that he attempted to cause the
death of A and his wife by setting on fire 2 house one A’s and the other B’s.
Evidence showed that the appellant had attempted murder on 2
occasions. The first , he burnt A’s house and when A took refuge in B’s house,
he burnt B’s house as well. The question was whether there was duplicity.
It was found that yes there was, with
respect to the arson charge as there were two offences arising from 2 acts of
arson. Secondly, there was also duplicity with respect to the attempted murder
hence there ought to have been two charges off attempted murder. Thirdly, the
attempted murder counts should be framed in the alternative. There ought to be
4 counts and not 2 but the e second attempted murder count should be in the
alternative.
Saina v R (1974) EA 83
The appellant was charged on a single
count with the offence of housebreaking, theft and handling stolen property. He
was convicted but on appeal the High Court found the charge barred for
duplicity. It was found that one count charged 3 separate offences i.e. shop
breaking contrary to section 306(a) of the penal code, handling stolen goods
contrary to section 322 of the penal code. It was forth held that each offence
should be set out in a different count. The charge of handling stolen property
is in the alternative. The appellant was charged.
Bhatt v R (1960)
The appellant was charged with being in possession
of obscene material, contrary to section 181(a) of the penal code.
It was alleged that the appellant for the
purpose of or by way of trade for the purpose of distribution or public
exhibition had in his possession 37 photographs of an obscene nature which
could tend to corrupt the morals of any person etc. Section 181 talks of
alternative purposes.
It was held that (on appeal) the
particular motive why the appellant has the photos should have been averred to
the purposes. It 2as wrong for the charge to refer to many purposes. The
averment of several purposes made the charge barred for duplicity. Each of the
several particular set out in the charge constituted a separate offence.
Charging the accused in this mannered prejudices his defense.
Koti v R (1962) EA 439
Appellant was charged and convicted of
wrongfully attempting to interfere or influence witnesses in a judicial
proceeding either before or after they had given evidence contrary to section
2121(1) of the penal code. On appeal, it was held that the charge was duplex,
i.e. it charged with two offences i.e. interfering with the witness
before and after. They should state if it was before or after. If it was before
and after there should be 32 counts. Duplicity is allowed in certain circumstances.
There are exceptions to the general rule that count should not charge an
accused with more than one offence.
Exceptions to the General Rule
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:
The offence created under section 330 of
the Penal ode in respect of false accounting;
Second schedule authorizes offences
creates under the section 304 and section 379 i.e. burglary and stealing. Form
9, in the second schedule.
Pope v R (1960) EA 132
Accused was charged with fraudulent
accounting false accounting contrary to section 330(a) of the penal code.
Where the sepaarate offences are charged
conjunctively using the word and as opposed to or if the matter relates to one
act. In Gichinga v R the appellant was charged
with driving a car recklessly. In the particulars, it was stated that he drove
in a reckless manner and at a speed which was dangerous to the public having
regard to all the circumstances of the case contrary to section 86 of the
Traffic Act. The Act employs OR rather than AND. The magistrate acquitted the
accused because of duplicity as it alleges the commission of two offences. On
revision by the high court it was held that the charge was not
duplex and it had been expressed conjunctively and it referred to one incident
or act i.e. appellants manner of driving at the relevant time. If it had been
expressed using the disjunctive OR. In a. reckless manner or at a high speed it
would have been duplex
EFFECTS OF DUPLICITY
The law is not clear. There are two
opposing views:
One view holds that duplicity is an
incurable defect which can be cured by amending the charge hence if found to be
duplex, the accused should be discharged. This was seen in Cherere
Gukuli v R (1955) 22 EACA 478 and followed in Saina
v R. Those who subscribe to this position hold that a count
which charges for two counts is barred for duplicity and a conviction based on
it can not stand.
The other view holds that the true test
should be whether injustice or prejudice has been occasioned on the accused by
the duplicity so that where the accused suffers no prejudice, a conviction o
duplicity should not stand. This school relies on section 382 CPC which
provides for finding of a sentence or order issued by a court should
be reversed or altered on appeal or revision on account of error omission or
irregularity in the charge unless the error omission or irregularity has
occasioned a failure of justice. This school of thought was followed in:
Kababi v R (1980) KLR 95. The appellants was charged in a single count with
causing the dearth of 3 persons by dangerous diving. He was convicted. He
appealed, challenged the decision of the court that it was based on a barred
charge. It was held that the failure to charge or to file 3 separate counts did
not occasion injustice though there was duplicity. The conviction was upheld.
Koti v R: Appellate
court found the charge was duplex but declined to interfere because it did not
occasion any in justice. It was held that the test in deciding whether a
failure of justice occurred or the accused has been prejudiced in his trial.
Mwambalafu v R : the appellate court found that the arson
charge was duplex but that it did not occasion any injustice. The court relied
on section 382 of the Tanzania CPC.
Mwangi v R: The
appellate court found that the charge was duplex but that it had occasioned no
injustice.
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