CRIMINAL LITIGATION (DETAILED) NOTES

CHAPTER 1: THE NATURE OF CRIMINAL PROCEEDINGS

 

1.       INTRODUCTION

·       Criminal Procedure and Practice concerns itself with the various stages and means by which persons who are alleged to have contravened the criminal law are dealt with or processed à concerned with the process rather than the substance of criminal law

·       It defines the procedures and rules governing the judicial aspect of prevention, detection and punishment of crime

·       Criminal procedure is public in nature as criminal law is a reflection of society’s attempts to deal with delicts, and so the

process by which it does so is one in which the public generally have an interest

·       It is also important to remember that the subjects of the criminal process (i.e. the alleged culprits or perpetrators of crime) are also members of the same society and are not bereft of rights

·       The criminal procedure therefore gives rise to a competing interest: on one hand, there is the interest of the society, through the instrument of the state, to punish crime. On the other hand, there is the need to ensure the rights and inherent dignity of the offender are respected (the efficacy of our procedural law is determined by the manner in which it strikes a balance between them)

 

2.       PLAYERS IN CRIMINAL PROCEEDINGS

2.1    STATE AND THE ACCUSED

·       The main players to a criminal trial would be the State on one hand and the accused on the other – Republic v X

·       Therefore, even though individuals are often the wronged parties, it is the State itself that initiates and conducts the criminal proceedings on behalf of the public generally

·       Republic v Cap Van International Limited & Another: there are only two parties who are recognised in the law – the Republic (who prosecutes cases) and the accused person. The complainant in a criminal case has no right of audience before a Court and can only communicate to the Court through the prosecutor

 

2.2    COMPLAINANT

·       Under the Criminal Law (Amendment Act) No. 5 of 2003, a complainant is a person who lodges a complaint with the police or any other lawful authority

·       Section 2, Criminal Procedure Code (‘CPC’) retains the definition of a complaint as ‘an allegation that some person known

or unknown has committed or is guilty of an offence’

·       Therefore, even though the complainant is the one directly, immediately and personally affected by the criminal acts of the accused and therefore makes a complaint, the State – by virtue of having an interest in the protection of the rights of all its citizens – may itself be seen as the complainant, with an additional right to prosecute  

·       William Ruto & Others v Attorney General: this judgment puts to rest the many objections raised by accused person to the effect that there is no discernible complainant, especially in corruption cases where investigations are triggered by anonymous reports or the Kenya Anti-Corruption Commission moves suo moto  

·       No critical is the role of the complainant, that where an accused person appears in a particular court at an appointed time for the trial but the complainant fails to appear (having knowledge of the proceedings), the court is empowered to acquit the accused person (unless it deems it fit to adjourn the proceedings to a later date)

·       The complainant may also withdraw his complaint at any time before judgment is passed if he can satisfy the court that there are sufficient grounds for permitting him to withdraw it – however, a personal complainant cannot make such withdrawal without the concurrence of the State

·       Shen Zhangua v Republic: where the State and the complainant are agreed, it would not be proper for the Court to make it unduly difficult for a withdrawal of complaint  

·       Medardo v Republic: the court held that under S. 204 CPC, if at any time before the final order is passed in a case, the complainant satisfies the court that there are sufficient grounds for permitting him to withdraw the complaint, the court may permit him to withdraw it and shall thereupon acquit the accused  

·       If the complainant is a child if tender years, his intelligence is to be tested through voir dire before subjecting him to the oath

·       The complainant also holds the key to any amicable settlement of the case – however, this has to be in appropriate cases involving common assaults/any other offences of a personal or private nature not amounting to a felony and not aggravated in degree

 

2.3    PROSECUTOR

·       The prosecutor in a criminal trial is the person who appears and pleads, or presents the case of the state against the accused person – whether at trial or at appeal

·       Historically, public prosecutors fell under three broad categories:

(i)            Those exercising the Attorney General’s delegated authority as officers at the State Law Office, i.e. the DPP, SG

and State Counsel of various ranks;

(ii)            Gazetted Public Prosecutors appointed by the Attorney General either for Kenya generally or for a specified area

(iii)            Non-Gazetted Public Prosecutors who are appointed by the Attorney General in writing from among advocates of the High Court of Kenya or persons employed in the public service – the appointment of this category is case specific

·       However, the exclusive prosecutorial powers appointed to public prosecutors have now been rationalised, curtailed and transferred to an independent and constitutionally protected Director of Public Prosecutions (‘DPP’) under Article 158, Constitution 2010

 

2.4    POLICE

·       The police perform investigative functions to ensure that cases brought against the accused are substantial, weighty and supported by evidence

·       The investigative powers of the police are spelt out under the Police Act and Force Standing Orders made thereunder

·       The powers to prevent, investigate and detect crime are presumed under Article 254(4), Constitution 2010 – the DPP has power under Article 157(4), Constitution 2010 to direct the Inspector General of the National Police service to investigate any information or allegation of criminal conduct and the latter is obligated to comply with any such written direction

·       Republic v Pattni: the High Court stated that whereas the Attorney general or his officers may require the Commissioner of Police to investigate, they cannot, following the instructions, be themselves involved in the investigations à this position moved away from international practice where prosecutor-leg investigations have taken root

 

2.5    WITNESSES

·       A witness is a person who, as a result of having been present, observed, experienced or dealt with an event or thing, and so is able to give an account of it in a court of law

·       Witnesses play a central role in the adjudicative nature of criminal trials which are aimed at establishing the truth or otherwise of allegations made against an accused person

·       It is their testimony, and production of physical/documentary evidence, that aids a court in arriving at a just decision

 

2.6    JUDGE OR MAGISTRATE

·       He is the presiding judicial officer of the Court and represents the authority and integrity of the judicial adjudicative pro cess

·       His role is that of a passive, impartial umpire in an adversarial system

·       It is his duty to apply the procedural law and rules of evidence to ensure that the criminal process is not used oppressively

·       His interventions should be kept to a minimum to avoid being accused of descending into the area of conflict of interest where his ‘vision may be blurred’

CHAPTER 2: HIERARCHY OF COURTS IN KENYA

 

1.       THE JUDICIARY

·       The Judiciary consists of the judges of the superior courts, magistrates, other judicial officers and staff

·       It is viewed as the third arm of government, and established for the purpose of interpreting laws and adjudicating over/resolving disputes between citizens inter se and between citizens and the state

·       Unlike in former times, the new Constitution states that in exercising judicial authority, the courts and tribunals should be guided by the following principles (Article 159(2)):

(i)            Justice for all, irrespective of status;

(ii)            Justice shall not be delayed;

(iii)            Alternative forms of dispute resolution, including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted;

(iv)            Justice shall be administered without undue regard to procedural technicalities; and

(v)            The purpose and principles of the Constitution shall be protected and promoted

 

1.1    INDEPENDENCE OF THE JUDICIARY

·       In the exercise of judicial authority, the Judiciary is subject only to the Constitution and the law, and not subject to the

control or direction of any person or authority (Article 160(1))

·       A judicial member is not liable in respect of anything done in good faith in the lawful performance of a judicial function

 

1.2    JURISDICTION

·      

In Kenya, the courts are established in a hierarchical fashion:

 

·       ‘Jurisdiction’ therefore refers to the powers and competencies that may be exercised by each of the courts

·       Generally speaking, the powers and competencies both in terms of the territory and subject matter expand the higher a court sits in the hierarchy or pecking order

·       Courts can only exercise such powers as are expressly given to them by law – any purported arrogation of powers to itself that a court does not possess is an unlawful usurpation that is of no legal effect and amounts to a nullity

·       Sir Ali Bin Salim v Shariff Mohammed Shatry: ‘if a court has no jurisdiction over the subject matter of the litigation, its judgments and orders, however precisely certain and technically correct, are mere nullities and not only voidable; they are void and have no effect as estoppel or otherwise, and may not only be set aside at any time by any Court in which they are rendered, but be declared void by any Court in which they may be presented … jurisdiction cannot be formed by consent of parties and any waiver on their party cannot make up for the lack or defect of the jurisdiction’

 

1.3    SYSTEM OF COURTS

 

SUPERIOR COURTS	SUBORDINATE COURTS
Supreme Court	Magistrates Courts
Court of Appeal	Kadhi’s Courts
High Court	Courts Martial
Specialised courts, equal in status to the High Court, i.e.	Other such   courts   and   tribunals	as	may	be
Environment and Land Court & Employment and Labour	established by an Act of Parliament
Relations Court

 

2.       SUPREME COURT

·       The Supreme Court (‘SC’) is at the very top of the Kenyan Court System

·       It is the most senior court and the judgments, directions and orders are binding on all courts throughout the Republic except the Supreme Court itself

·       The SC consists of the Chief Justice, Deputy Chief Justice and 5 other judges – a proper sitting of the SC comprises 5 judges

·       It possesses exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of the President, and appellate jurisdiction to hear and determine appeals from the Court of Appeal and any other court or tribunal as prescribed by national legislation

·       Appeals to the SC from the Court of Appeal are two-fold:

(i)            As of right, in cases involving the interpretation or application of the Constitution; and

(ii)            Where the Court of Appeal certifies that a matter of general public importance is involved à this certification may be reviewed by the SC and either affirmed, varied or overturned

·       The SC may give an advisory opinion at the request of the national government, any state organ or any county government (with respect to any matter concerning a county government)

 

3.       COURT OF APPEAL

·       The Court of Appeal (‘COA’) is established by Article 164, Constitution 2010 as a superior court of record, having such jurisdiction and powers in relation to appeals from the High Court and otherwise as may be conferred to it by law

·       The number of judges of the COA are to be prescribed by Parliament, not in any event being less than 12

·       The COA has a president who is elected by the members of the COA from among themselves

·       The court’s jurisdiction and powers stem from the Appellate Jurisdiction Act read in conjunction with the Court of Appeal Rules

·       On appeal, the COA has the power, so far as jurisdiction permits, to:

o   Confirm, reverse or vary the decision of the superior court with such directions as may be appropriate;

o   Order for a new trial; and

o   Make any necessary incidental or consequential orders, including orders as to costs

·       Onyango v Republic: the jurisdiction of the COA is derived from statute and the court has no inherent jurisdiction. In the absence of any statutory provision conferring a right of appeal, such right could not be inferred from the repeal of a provision to the effect that no appeal shall lie from the High Court

·       Kariuki v Republic: the COA rules it had no jurisdiction to hear an appeal against a refusal by the High Court to admit an appeal out of time

·       The COA also has any other power, authority and jurisdiction vested in the High Court – extending to joinder of appeals and joinder of persons

·       In the hearing of the appeal, the law to be applied is the law applicable to the case in the High Court, and so any judgment may be executed and enforced as if it were a judgment of the High Court

 

4.       HIGH COURT

·       The High Court (‘HC’) us established by Article 165, Constitution 2010 as a superior court of record, vested with unlimited and original jurisdiction in all criminal and civil matters, in addition to all powers conferred upon it by the Constitution and any other written law

·       Delamere Case (Thomas Patrick Gilbert v Republic): The High Court … can hear all matters without regard to territory or the subject matter in dispute. In criminal matters, it has jurisdiction to try the pettiest of offenders to the murderer. Likewise, in civil matters it has the jurisdiction to try a claim for the meanest amount without regard to the origin of the claim. Of course, it does not normally do so; it would be overwhelmed by the sheer volume of work. But it has the jurisdiction to do so. That is our understanding of the phrase “unlimited original jurisdiction in civil or criminal matters”

·       There also exists a Principal Judge of the High Court, who is elected by the judges of the High Court from among themselves

 

4.1    ENFORCEMENT JURISDICTION

·       Article 165(3), Constitution 2010 provides that the HC shall have jurisdiction to determine the question of whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened

·       In addition, such jurisdiction can be invoked by the subject-citizen or by another person/association acting on his behalf

·       Access to justice under this jurisdiction is to be broadened by expanding on the rights of standing, minimisation of formalities, non-payment of fees, reduction of procedural technicalities and the appearance of amici curiae

·       The High Court is thus the predominant locus for the enforcement of the Bill of Rights

·       Part III, Gicheru Rules provide that an application is to be made directly to the High Court where a contravention of fundamental rights and freedoms is apprehended – such application is to be made by way of a petition as set out in Form D of the Schedule, supported by an Affidavit, and (in criminal cases) to be served upon the AG within 14 days of filing

·       If a question of contravention of right arises within proceedings pending before a subordinate court, and the presiding officer considers this question not to be frivolous or vexatious, he may refer it to the High Court in the prescribed form

·       Where an allegation of contravention of rights is made by a party to proceedings that are pending in a subordinate court, he is required to apply informally to the presiding officer during the pendency of the said proceedings for a reference to be made to the High Court to determine the question of the alleged violation

 

4.2    APPELLATE JURISDICTION

·       The HC has appellate jurisdiction, but this is not unlimited – it exists only where provided for in statute

·       Thus, a person convicted on a trial held buy a subordinate court of the first or second class may appeal to the HC on a matter of fact or law. However, no appeal is allowed where the accused person pled guilty and has been convicted on that plea, save to the extent or legality of the sentence imposed

·       The state – through the DPP – has a right of appeal to the High Court against the acquittal of an accused person, refusal to admit a complaint/formal charge, dismissal of charge, etc. by a subordinate court

·       In addition, a new appellate jurisdiction is conferred upon the High Court for the hearing of appeals from a decision of any tribunal appointed under the Constitution to consider the removal of a person from office (not extending to a tribunal formed to inquire into the President’s physical/mental capacity to perform the functions of office)

 

4.3    INTERPRETATIVE JURISDICTION

·       The HC has jurisdiction to hear any question concerning interpretation of the Constitution, including:

(i)            Whether any law is inconsistent with or contravenes the Constitution;

(ii)            Whether anything done under the authority of the Constitution or any law is inconsistent with or contravenes the Constitution;

(iii)            Any matter relating to the constitutional powers of State organs over county governments and to the constitutional relationship between the levels of government; and

(iv)            Any question relating to conflict of laws

·       However, not every question/allegation of constitutional interpretation qualifies for reference to the High Court à Odhiambo v Republic: ‘my own conception of a constitutional issue when it relates to the interpretation of a provision of the constitution is that there are posed to the Court, two or more conflicting interpretations of the constitution and the constitutional court is asked to pronounce on which is the correct one’

·       Where a question arises as to the interpretation of the Constitution in proceedings before a subordinate court and that court is of the opinion that the question involves a substantial question of law, that court may suo moto (and must, where a party to the proceedings so requests), refer the question to the High Court

4.4    SUPERVISORY JURISDICTION

·       The High Court ha supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function

·       The Constitution expressly excludes superior courts from the High Court’s jurisdiction since it would be untenable for it to

purport to supervise bodies of concurrent or superior jurisdiction

·       The rules currently in force relating to the High Court’s jurisdiction are the Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) High Court Practice and Procedure Rules 2006

 

5.       SUBORDINATE COURTS

·       Under the Magistrate’s Court Act, the Resident Magistrate’s Court has jurisdiction throughout Kenya:

o   It exercises power and jurisdiction in criminal proceedings as conferred on it by the CPC or any other written law

o   It is presided over by Magistrates of various ranks, starting from a Resident Magistrate all the way to Chief Magistrate

·       A District Magistrates Court exercises power and jurisdiction over any such class of cases designated by the Judicial Service Commission

o   It has jurisdiction throughout the district in which it is established, which may be extended by the Chief justice through notice in the Gazette

o   The decision of a District Magistrate Class II is amenable to appeal and reversal by a Resident Magistrate (Republic v Jotham Njoroge Kimani)

·       In exercising criminal jurisdiction, the controlling statute is the CPC – it states that all offences stipulated in the Penal Code and all other laws can be tried by the High Court or a subordinate court. Thus, an offence under any law other than the Penal Code shall be tried by such court as may be mentioned in that law. Where no law is mentioned, the same may be tried by the High Court or by a subordinate court

·       Unlike the High Court, the kind of sentence that may be imposed by a subordinate court depends on the class or rank of the officer presiding – the same rising in severity in proportion to the seniority of the presiding officer

 

Note: First Schedule, Penal Code – contains rank of presiding officers of the magistrate’s courts that have jurisdiction to try

specific offences under the Penal Code.

CHAPTER 3: SEARCHES

 

·       An important tool in the prevention, investigation and detection of crime and the gathering of evidence to be presented in a court of law in proof of the commission of an offence is the search

·       A ‘search’ is an attempt to find something, i.e. a careful examination to find hidden items

·       There are two types of searches recognised in law:

(i)            Search with a warrant; and

(ii)            Search without a warrant

 

1.       SEARCH WITH A WARRANT

·       A ‘search warrant’ is a written permit, issued by a court or magistrate, allowing a search upon proof on oath that a thing on, with or in respect of which an offence has been committed or which may be necessary for the investigation of an offence needs to be seized and taken before a court to be dealt with according to law

·       S. 118 CPC: the search warrant authorises a police officer or a person named within it to search a place, building, ship, aircraft, vehicle, box or receptable for the purposes of conducting an investigation or obtaining evidence

·       A police officer may lay any lawful complaint before a magistrate and may apply for a search warrant

·       The contents of a search warrant are:

(i)            The offence with which the person, place or thing being searched is related;

(ii)            The name of description of the person, place or thing to be searched;

(iii)            The person(s) to execute the search warrant;

(iv)            An order directed to the executor of the warrant to seize the products of the search and produce them in the Court issuing the warrant or any other court with jurisdiction, to be dealt with according to the law

• · The search warrant remains in force until it is executed or cancelled by the issuing court
• · The warrant may be directed to one or more police officers or all the police officers of the area within which the court has jurisdiction
• · The court may also allow the warrant to be executed by any person where a police officer is not available and it is necessary to execute the warrant immediately
• · The warrant may be executed at any place in Kenya, at any time between sunset and sunrise on any day, including Sundays or at any time the court authorises
• · A person who owns or resides in a building or place liable to a search must afford to the executor all reasonable facilities for a search therein (and the police officer on his part must produce the search warrant that validated his entry)

1.1    SEARCHES v PRIVACY

·       The conduct of searches consists a serious intrusion of privacy and property of a citizen and so must be employed carefully

·       Chic Fashions (West Wales) Ltd v Jones: ‘No man’s house is to be used as a hiding place for thieves or receptable for stolen goods. If there is a reasonable ground for believing that there are stolen goods in the house, information can be laid before a magistrate on oath and the magistrate can then issue a warrant authorising a constable to enter the house and seize the goods’

·       Under the Constitution, every person has the right to privacy, which includes the right not to have:

(i)            Their person, home or property searched;

(ii)            Their possessions seized;

(iii)            Information relating to their family or private affairs unnecessarily required or revealed; or

(iv)            The privacy of their communications infringed

·       However, this right is not absolute and may be limited in the interest of public safety and/or public order – thus, the search warrant amounts to judicial certification of derogation to an individual’s right to privacy

·       In addition, any limitation of a right or fundamental freedom is to be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors (including):

(i)            The nature of the right or fundamental freedom

(ii)            The importance or the purpose of the limitation;

(iii)            The nature and extent of the limitation;

(iv)            The need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and

(v)            The relation between the limitation and its purpose, and whether there are less restrictive means to achieve the purpose

·       Therefore, the power to issue search warrants is vested only in the court or the magistrate (not left to the whim of police or investigative agencies)

·       Whereas in practice the courts do not insist on too high a threshold of proof before issuing search warrants, there must at least be a reasonable basis for the same  

·       Where a police officer enters a house, he may also seize other goods (outside of the warrant) which he believes on reasonable grounds to be material evidence on a charge of stealing or receiving against the person in possession of them or anyone associated with him

·       Previously, even where a search was improperly conducted, the fruits of the search were nonetheless admitted into evidence à However, there is a different school of judicial thought now which excludes all illegally and improperly obtained evidence  

·       This is now enshrined in Article 50(4), Constitution 2010: this provides for the exclusion of any evidence obtained in a manner violative of any right or fundamental freedom in the Bill of Rights (however, this is not an absolute bar – depends on whether it will have an unfair effect on the trial and administration of justice)

 

CASE	HOLDING
Vitu Limited v The Chief Magistrate at Nairobi & 2 Others	It is expected that when a police officer or any other investigator approaches the court for a warrant, he must show reasonable suspicion of an offence being about to be committed or having been committed
Pringle v Bremner and Stirling	When addressing the necessary extension of the parameters of a search warrant to render it efficacious, it was held that ‘if the man’s person is not so sacrosanct in the eyes of the law, how ca the good which he is reasonably suspected of having stolen be sacrosanct?’
Crazier v Cundey	A constable could properly seize other goods not mentioned in the warrant if they afforded useful evidence to substantiate the charge for which the warrant was issued
Hamis v DPP	The court held that admission of evidence obtained from an accused person by trick would be, ‘no doubt’, ruled out by a judge

 

1.2    SEARCHES ON A PERSON

·       A person may be searched upon reasonable suspicion of concealing about his person an article for which search should be made – if the person is a woman, the search must be made by another woman

·       Personal searches, e.g. pat downs or insertion of fingers/objects to retrieve drugs, due to their highly intrusive and humiliating nature, ought to be conducted only where there is reasonable and probable cause

 

1.3    PROFESSIONAL PRIVILEGE

·       A search even with a warrant, cannot be directed towards material which cannot be legally seized, e.g. correspondence between an accused person and his spouse, lawyers and doctors  

·       This applies to documents which are in the possession of the accused person himself and not a suspect or third party  

·       These documents are protected by professional privilege; however, such privilege may be lost where the person is suspected to have participated in a criminal act, e.g. a lawyer’s files can be searched and examined if he is a party to the criminal acts (Frank Truman Export Ltd & Others v Metropolitan Police Commissioner)

·       S. 121 CPC: where anything from the search has been seized and brought before a Court, it may be detained until the conclusion of the case or the investigation, reasonable care being taken for its preservation  

o   The evidence may further be detained for the purposes of an appeal or the trial

o   If no appeal is made or trial preferred, the court may direct that the evidence be restored to the person from whom it was taken or otherwise disposed of  

 

CASE	HOLDING
Dillon v   O’Brien and Davis	The interest of the State in the person being brought to trial in due course necessarily extends to the preservation of material evidence of his guilt or his innocence, as well as to his custody for the trial. His custody is of no value if the law is powerless to prevent the abstraction and destruction of the evidence, without which trial would be no more than an empty form
Ghani v Jones	The 3-stage test to justify the taking and retention of an article by the police is as follows: (i)             Reasonable ground to believe that a serious offence has been committed (or is about to be committed) (ii)            Reasonable ground to believe that the article taken is the fruit of crime, instrument by which the crime was committed, or material evidence to prove the commission of a crime (iii)            Reasonable ground to believe that the person in possession of it is involved in the crime, or at any rate, his refusal to hand it over is unreasonable In addition, the article must be kept for no longer than necessary for the purpose of investigation and evidence, and in the case of a document, the original should be returned if a copy will suffice

 

·       Due to the prior judicial permit, evidence obtained by a search warrant is more readily admitted by Courts than that obtained without a warrant

·       Furthermore, the officer is protected from any civil liability arising therefrom  

 

CASE

HOLDING

Pascal          Nkala Tubula v Republic

The court quashed a conviction where the appellant’s house had been searched, but it had not been shown whether the search was with warrant or not. Moreover, there was no other person in the house being searched except the police officers conducting the search. The court held that the way the search was conducted rendered it of no evidential value, regardless of whatever was alleged to have been found

 

1.4    CAN A SEARCH WARRANT BE USED MORE THAN ONCE?

 

CASE

HOLDING

Butler v Board of Trade

There is no express limitation of time for which a warrant remains in force; and the only restriction upon the power of search is that it must be executed between sunrise and sunset – during the day time. Parliament did not intend such warrant to subject the owner to an unlimited number of searches throughout an unlimited period of time. It was construed that a warrant only authorises a single entry, search and seizure. After that entry, search and seizure, the warrant is excluded and spent and a second warrant must be obtained to authorise the second entry

·       Further, it has been held that there is no restriction upon the evidence which may be adduced to prove a specific offence or the procedure for obtaining such evidence

·       Where the defence to any suit instituted against an officer is that the act complained of was done in obedience to a warrant purporting to be issues by a court, the court shall, upon production of the warrant, accept that warrant as prima facie evidence of the due making thereof and, upon proof that the act complained of was done in obedience of the said warrant, enter judgement in favour of such officer

 

2.       SEARCHES WITHOUT A WARRANT

·       A police officer, or other persons authorised in writing by the Commissioner of Police, may stop, search and detain any aircraft, vessel or vehicle in or upon which there is reason to suspect that anything stolen or unlawfully obtained may be found; or where there is reason to suspect that it has been used/employed in the commission/facilitation of an offence

·       Any stop, search and detention should be conducted by an authorised person, contrary to which an accused person may be acquitted

 

CASE	HOLDING
Atibu      Juma      v Republic	A police officer, as well as an administration police officer, may also search any person for whom a warrant of arrest has been issued or who may be reasonably suspected of having in his possession or conveying in any manner anything stolen or unlawfully obtained or of being guilty of a cognisable offence

 

·       Where a person in authority over a certain place or goods to be searched gives consent, the police officer may search such place without a warrant

·       The police officer is under no duty to tell the person being searched that he may refuse to be searched, and procuring consent to search through trickery does not invalidate the search

·       If an administration police officer reasonably suspects that a person in respect of whom a warrant of arrest is in force, or who is reasonably suspected of being guilty of a cognisable offence, is in any premises, he may demand that the person residing in/in charge of such premises allow him free access thereto and afford him all reasonable facilities for a search therein

·       This ‘delay principle’ also applies in matters where the search requires a warrant but any delay would defeat the purpose of the warrant, since evidence would have been destroyed or relocated elsewhere

·       This is also the case where the goods to be searched may pose a danger to the public

·       A search incidental to an arrest may be conducted without a prior warrant whenever a person is arrested with or without a warrant by a police officer making the arrest, or, the police officer to whom a person arrested by someone else is handed over

CHAPTER 4: ARRESTS

 

1.       GENERAL PROVISIONS RELATING TO ARRESTS

·       ‘Arrest’ refers to the lawful mechanism by which persons suspected of having committed criminal offences may be

apprehended, restrained and brought before court to be dealt with in accordance with the law

·       An arrest is therefore a restraint upon a person’s liberty and may take the form of physical confinement

·       It is the seizure of an alleged or suspected offender to answer for a crime

·       It involves placing a person in custody or under restraint, usually for the purpose of compelling obedience to the law

·       Hussein v Chang Fook [1972] 2 WLR 441: an arrest ‘occurs when a police offer states in certain terms that he is making an arrest; or occurs when an officer uses force to restrain the individual concerned; or occurs when by works 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 does not occur where he stops an individual to make inquiries’

·       Therefore, a police officer need not tell you that you are under arrest for you to be under arrest, so long as their conduct is indicative of the fact that you are under arrest

·       When making an arrest, the policeman or any person effecting the arrest may touch or confine the body of the person being arrested, unless the person being arrested voluntarily submits to custody by word or action

·       However, where a person forcibly resists the endeavour to arrest him, the person effecting the arrest may use all means necessary to do so (the force applied to effect the arrest must nonetheless be reasonable)

·       Therefore, the person effecting the arrest:

(i)            May, but need not, touch the person to be arrested; and

(ii)            May use all means necessary to affect the arrest, including reasonable force

·       The common terminology when it comes to arrests is as follows:

o   Committal: to convey an inmate from court to prison, i.e. act of carrying the party to prison

o   Malicious arrest: this is an arrest made wilfully and without probable cause, ordinarily when there is no lawful cause for the arrest

o   Parole arrest: this is arrest ordered by a judge or magistrate without written complaint of person before him

 

CPC PROVISION	WHAT IT STATES
S. 22(1)	Pursuant to an arrest warrant, the person affecting the arrest may enter any place where the person to be arrested is hiding or is reasonably suspected to have entered and concealed himself, and demand that the occupiers of that house allow him free access and reasonable facilities for the search
S. 22(2)(1)	Where reasonable access is not possible, a police officer is at liberty to immediately break open any outer or inner door or window of a house or a place to effect entry so long as he has a warrant. He may even break in without a warrant to prevent any pre-emptive escape of the person that would be afforded by the delay in obtaining a warrant. The ‘breaking action’ is only permissible if: (i)             Has made notification of his entry (ii)            Has stated his purpose; (iii)            Has made demand of admittance; and (iv)            Has been denied or is otherwise unable to gain admittance
S. 22(2)	Where the place is an apartment in the actual occupancy of a woman who, according to custom, does not appear in public, the person effecting an arrest must, before entering those premises, give notice to the woman to withdraw and must afford her every reasonable facility for withdrawing; whereupon he may break open the apartment and enter it
S. 23	A person effecting an arrest is authorised to break out of any house or place in order to liberate himself or any other person who, having lawfully entered for the purpose of making an arrest, is detained therein
S. 24	The person who is arrested should not be subjected to more restraint than is necessary to prevent his escape
S. 25	The person effecting an arrest is at liberty to search the person being arrested and place into safe custody all articles, other than the necessary wearing apparel they have on them

 

S. 26(1) & (2)	A police officer or any other person authorized in writing by the Commissioner of Police may stop, search and detain any aircraft, vessel or vehicle in or upon which there is reason to suspect that anything stolen or unlawfully obtained may be found; or is reasonably suspected to have been used or employed in the commission or to facilitate the commission of an offence. He may do the same to any person reasonably suspected of having in his possession or conveying anything stolen or unlawfully obtained
S. 26(2)	The State is fully immunized from liability for any loss or damage suffered by any person by reason of the detention of any aircraft, vessel or vehicle under the foregoing circumstances as such person is not entitled to damages or compensation
S. 27	As the body search of a person on arrest involves an intimate intrusion with great potential for indecency, when a police officer needs to search a woman, he has to ensure that the search is carried out by another woman, with strict regard to decency. The law presupposes that there is nothing objectionable about a police woman conducting a search on a man
S. 28	In case a search uncovers offensive weapons concealed about the person being arrested, the police officer shall deliver them to the court or the officer before which or whom the officer or person making the arrest is required by law to produce the person arrested

 

2.       ARREST WITHOUT A WARRANT

·       Under S. 29 CPC, there are instances when an arrest may be lawfully effected without a court order or direction, including apprehension of persons who:

(i)            Commit or are suspected to have committed cognizable offences, namely offences for which no warrant is needed in order for an arrest to be effected. In Republic v Hussen, murder was held to be cognizable offence, hence a police officer could arrest without a warrant;

(ii)            Commit a breach of the peace in the presence of a police officer;

(iii)            Obstruct a police officer in the execution of his duty;

(iv)            Escaped or attempt to escape from lawful custody;

(v)            Are in possession of anything suspected to have been stolen or are reasonably suspected of having committed an offence in respect of that thing;

(vi)            Are reasonably suspected of being deserters from the armed forces;

(vii)            Are found in a highway, yard or other place during the night and who are reasonably suspected of having committed or being about to commit a felony;

(viii)            Are found in a street or public place nocturnally and are reasonably suspected of being there for an illegal or disorderly purpose or who are unable to give a satisfactory account of themselves;

(ix)            Are reasonably suspected of having committed extraditable offences outside Kenya;

(x)            Are in procession of implements of house breaking for which they are unable to provide a lawful excuse; or

(xi)            Are reasonably suspected to be the subjects of a warrant of arrest

 

·       Thus, a police officer is entitled to effect an arrest without a warrant so long as he has reasonable grounds for entertaining the suspicion at that material time

·       Even if subsequent events show that the officer was in error at the time of the arrest, the arrest is not rendered unlawful

à Dillon v O’Brien and Davis: ‘in the case of an arrest, reasonable grounds for belief in guilty at the time of arrest are sufficient justification, though subsequent information or events may show those grounds to be deceptive’

 

CPC PROVISION	WHAT IT STATES
S. 30	An Officer in charge of a police station may also arrest or cause to be arrested without the requirement of a warrant any suspicious self-concealers; i.e. persons found within the limits of the station in circumstances suggestive that they are taking precautions to conceal their presence with a view to committing a cognizable offence
S. 31	Where an officer requires a subordinate to effect that arrest otherwise than in his presence, he shall do so by order in writing specifying the person to be arrested and the offence or other cause for which he is to be arrested

 

S. 32

A person who has committed or is suspected to have committed a non- cognizable offence may still be arrested without a warrant if he, when asked, refuses to give details of his name and place of residence; or gives a name or residence which the officer has reason to believe to be false. Such a person may be arrested until such information is ascertained whereupon he shall be released with or without condition to appear before a magistrate if so required. If the person is a non-resident of Kenya, his release is upon bond being secured by a surety or sureties’ resident in Kenya. If such information is not ascertained he must be arraigned in Court within a reasonable time

S. 33

The police officer who arrests without a warrant must, without any un-necessary delay, and subject to the provisions of bail in the Criminal Procedure Code, take or send the person arrested before a magistrate having jurisdiction in the case or before an officer in charge of a police station

 

2.1    CITIZEN’S ARREST

·       Under S. 34 CPC, a private person can also conduct a citizen’s arrest where:

o   He/she arrests one who commits a cognisable offence or one he reasonably suspects to have committed a felony;

o   Or, where damage to property has been committed and the owner of the property, or his servants, or any other person he authorises, may arrest the offender

·       The private citizen then needs to take the person arrested over to a police officer, or to a police station, expeditiously for the person to be re-arrested

·       The police officer may release the person where he deems that no offence has been committed

 

2.2    ARREST BY A MAGISTRATE

·       A magistrate may arrest, or order the arrest, and subsequent custody, of any person who commits an offence in his presence within the local limits of his jurisdiction

·       The magistrate may also arrest, or direct the arrest in his presence, within the local limits of his jurisdiction, of any person for whose arrest he is competent at the time and in the circumstances to issue a warrant

 

2.3    BROUGHT INTO CUSTODY

·       Where a person has been taken into custody without a warrant for an offence, the officer in charge of the police station to which the person has been brought, may release the person upon execution of a bond of reasonable amount or with sureties to appear before a magistrate at a future date (S. 36 CPC)

·       However, this release is subject to certain conditions:

(i)            The offence is not of a capital nature;

(ii)            It is not practicable to bring the person arrested before an appropriate subordinate court within 24 hours after he has been taken into custody; or

(iii)            The arrest itself is not of a serious nature

·       Alternatively, the officer in charge of the police station may also release a person suspected of having committed an offence if – after due police inquiry – he forms the opinion that there is insufficient evidence disclosed on which to proceed with the charge

·       In addition, the officers in charge of police stations are obliged to report all arrests to the nearest magistrate (within the limits of their respective stations), whether or not the arrested person has been admitted to bail – these reports are intended to curtail arbitrary arrest and detention of persons by police officers

 

2.4    PERSON’S ESCAPE FROM CUSTODY

·       If a person escapes or is rescued from lawful custody, the person who had apprehend him, whether or not he be a police officer and whether or not he has a warrant, is entitled to pursue and arrest him without a warrant and may, moreover, break into any house or place so as to seize and recapture and re-take him

·       There is a positive duty on all persons to assist police officers or magistrates who require their aid in taking or preventing someone from escaping and in suppressing any breach of the peace or any attempt at committing any injury to a railway, canal or public property

3.       ARREST WITH A WARRANT

·       An arrest warrant is a written order issued by a magistrate for the apprehension of a person who fails to appear in Court at an appointed time and in relation to an offence committed by him, or may even be issued for witnesses who fail to appear in court to give evidence

·       Global Enterprises PVT v Robsinson Malambo and Another [2006]: warrants of arrest are issued by a court for witnesses who are bonded but fail to turn up to give evidence and for those accused persons who have jumped bail or absconded

·       Warrants of arrest are directed to a police officer or any other person who will effect the arrest

·       It is important to remember the three preliminary factors when arresting an individual:

o   Only reasonable force is to be used;

o   The individual is to be informed of the reason for the arrest; and

o   The individual, once in detention, is allowed access to legal representation and visits by relatives

 

CPC PROVISION	WHAT IT STATES
S. 100	If summons have been issued directed at any person against whom an accusation has been laid, the Court may, before or after the time of hearing, issue a warrant of arrest against the person so summoned
S. 100	In obtaining a warrant of arrest, the police lay written information before the magistrate and on oath that a person has or is suspected of having committed an offence. As such, a warrant of arrest should not be issued unless the offence in question is indictable or is punishable with imprisonment. The court also ought to be satisfied that the person named in the warrant would not voluntarily appear in attendance as required, hence the necessity of the warrant
S. 101	If the accused does not appear at the time and place appointed in and by the summons, and his personal attendance has not been dispensed with, the court may issue a warrant to apprehend him and cause him to be brought before it, but no warrant is issued unless a complaint has been made upon oath   Abdi Alsafa v Republic: the court may also issue a warrant for the arrest of a person who fails to appear when required even for the mention of his case

 

3.1    VALIDITY OF WARRANTS

·       The formal validity of a warrant is satisfied when the warrant meets the following requirements, i.e. every warrant:

(i)            Must bear the signature of the judge or magistrate issuing it;

(ii)            Must bear the seal of the court;

(iii)            Must bear the name of the person or persons to whom it is directed;

(iv)            Must bear a précis of the offence with which the person against whom it is issued it charged;

(v)            Must bear the name or description of the person to be apprehended (the subject);

(vi)            Must order the person or persons to whom it is directed to apprehend the subject for the purpose of bringing him before the Court issuing the warrant, or before some other Court having jurisdiction in the case, to answer to the charge therein mentioned and to be dealt with further in accordance with the law

 

CPC PROVISION	WHAT IT STATES
S. 101	If the accused does not appear at the time and place appointed in and by the summons, and his personal attendance has not been dispensed with, the court may issue a warrant to apprehend him and cause him to be brought before it, but no warrant is issued unless a complaint has been made upon oath Abdi Alsafa v Republic: the court may also issue a warrant for the arrest of a person who fails to appear when required even for the mention of his case
S. 102(3)	The warrant remains in effect until it has been executed, lifted or cancelled by the officer of the law or the Court that issued it
S. 103	If the court issuing the warrant so directs by endorsement on the warrant, the subject thereof may be released if he executed a bond with sufficient sureties for his attendance before it at a subsequent specified time and thereafter until otherwise directed by the court. The endorsement must state: (i)             The number of sureties; (ii)            The amount in which they and the subject are to be bound; and (iii)            The time at which the subject is to attend before court

 

	This, however, does not apply to the offences of murder, treason or rape as per the statute (though it ought to exclude the exact list of non-bailable offences).
S. 103	The officer to whom the warrant is directed must forward the bond to the Court whenever security is thus taken
S. 104	The liability to execute a warrant is joint and several on the part of the persons to whom it is directed
S. 105	Where an escaped convict or a person accused of a cognizable offence has eluded pursuit, a magistrate may direct a warrant to a land holder, manager of land or farm manager who shall, on receipt of it, acknowledge it in writing and execute it if the subject enters upon his land or farm. The subject is then to be taken over with the warrant to the nearest police officer, who shall cause him to be taken before a magistrate unless the subject gives security
S. 106	A warrant directed at a police officer is transferrable for execution to another officer provided the officer, to whom it is directed or endorsed, endorses it to the next officer
S. 107 & S. 108	The officer or other person who finally executes a warrant is under a duty to notify the subject of the substance of the warrant and show him the warrant should the subject so require and shall then arrest and expeditiously bring the subject before the Court to which he is required to produce him
S. 109	A warrant of arrest may be executed at any place in Kenya
S. 110	Where it is to be executed outside the local limits of jurisdiction of the issuing court that court may forward it by post or otherwise to a magistrate in whose local limits of jurisdiction it is to be executed. The receiving magistrate will then endorse it and cause it to be executed as if he issued it himself
S. 111	Where a police officer receives a warrant directing him to execute it outside the local limits of his jurisdiction, he must take it to the magistrate in whose jurisdiction it is to be executed. This latter magistrate endorses his name on the warrant, which then constitutes sufficient authority for the police officer to execute it within those local limits and for the local police to afford him all the assistance he may need in executing it. The officer may, however, execute it without such endorsement if he has reason to believe that any delay may lead to the frustration or defeat of the execution of the warrant

 

3.2    IRREGULARITIES AND DEFECTS IN A WARRANT

·       Under the CPC, any irregularities or defects in a warrant do not vitiate or otherwise effect the validity of any proceedings at or subsequent to the hearing of the case

·       Defects include: form or substance, variance between the warrant and the written complaint, or variance between the warrant, complaint and prosecution evidence at trial

·       James Maina Njuguna v Republic: an appeal on the ground that the mode of arrest had no nexus to the crime or any sound like connecting the appellant to the crime was rejected, with the court going further to say that the evidence adduced was consistent with the warrant

·       If the court believes that the variance is such that the accused was deceived or misled, it may adjourn the proceedings to a future date but will not nullify or stop the proceedings

 

3.3    CAN A WARRANT OF ARREST BE USED MORE THAN ONCE?

·       The CPC is silent on this issue

·       However, the court in Dickenson v Brown doubted the legality of a second arrest of the plaintiff upon a warrant which had already been used to effect an arrest on an earlier occasion

·       It would amount to an abuse of the arrest warrant were it to be executed repeatedly for such a use of it would turn it into an instrument of oppression and would vitiate the need for police to go under oath to prove that a warrant should issue at all

 MAGISTRATE’S POWERS TO ENFORCE ATTENDANCE

(i)            Power to make bond for appearance: where a person for whose appearance or arrest the officer presiding in a court is empowered to issue summons or warrant happens to be present in court, the officer may, without having to issue a summons or warrant, require him to execute a bond with or without sureties for his appearance in that court

(ii)            Arrest for breach of bond: should a person who has been freed on a bond abscond or fail to appear before the court, the officer presiding may issue a warrant directing that such person be arrested and brought before him

(iii)            Power to issue production orders: where a person for whose appearance or arrest a court is empowered to issue summons or warrant is confined in a prison within the local limits of jurisdiction, the court may issue a production order to the officer in charge of that prison requiring him to bring the prisoner in proper custody, at a time to be named in the production order, before the court (the officer must provide for safe custody of the prisoner)

 

4.       RIGHTS OF ARRESTED PERSONS

·       One of the most significant criminal justice developments brought about by the adoption of the new constitution is the elevation of the rights of an accused person to constitutional status in clear response to a history of gross abuses

·       The current constitutional dispensation places a greater duty on law enforcement agencies to circumspect and have regard to the law when effecting an arrest

·       Article 49, Constitution 2010 affords accused persons the following rights:

(i)            Prompt information, in a language he understands, of:

§  The reason for the arrest;

§  The right to remain silent; and

§  The consequences of not remaining silent (namely that if he waives that right, anything he says will be taken down in writing and may be used in evidence.);

(ii)            Right to remain silent;

(iii)            Right to communication with an advocate and other persons whose assistance is necessary;

(iv)            Right against non- compulsion to self-incrimination;

(v)            Right to be held separately from convicts;

(vi)            Right to prompt production in court within twenty-four hours after being arrested; or before the expiry of the next court day if the twenty-four-hour period ends outside ordinary court hours;

(vii)            Right to be charged when first produced in court, or informed of the reason for continued detention, or to be released; and

(viii)            Right to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.

·       The Constitution has also outlawed the pre-trial detention of all persons charged with petty offences (i.e. imprisonment of not more than 6 months or a simple fine)

 

5.       CONSTITUTIONAL ISSUES RAISED BY ARRESTS

·       The personal and invasive nature of an arrest raises various issues implicating the Constitution

·       This is highlighted by the fact that law enforcement officers have exhibited a certain proclivity towards indiscriminate arrest without first going through the process of determining who is truly implicated

 

CASE	HOLDING
Mohammed v Republic	High Court stated that the police have no authority to hold in their custody persons who are only witnesses to the commission of a crime where such persons have been summoned to the police station or have taken themselves there to record statements. Moreover, witnesses to the commission of a crime should be released unconditionally from the police stations after they have recorded their statements. They can only be bonded later to attend court to give evidence.
Gachara v Republic	The Court said that liberty is one of the fundamental rights and freedoms of the individuals protected by the Constitution of Kenya but that it was subject to its not prejudicing the rights and freedoms of others or the public interest
Joseph Amos Owino v Republic	The Court said that the issue of violation of constitutional rights should be raised at the earliest opportunity only if it was dealing with a complaint of such a nature coming from an accused person who had been represented by an advocate either at his trial or on the first appeal. In such as case, the Court stated that it would assume that the accused was legally advised on his legal rights, and if he did

 

not raise such issues, then he would be considered to have waived them and would not be heard to reclaim the same on second appeal

 

·       The question as to the fate of the accused person who has been detained for longer than the expected constitutional period has given rise to a debate on what remedy is to be given by the court

·       The constitution, on a plain reading, provides for compensation from the person that unlawfully arrests or detains him

·       The immediate consequence of over-shooting the constitutional time limit is to require the prosecution to proffer an explanation for the delay – the explanation may be reasonable or not

·       Where the court is not satisfied with the explanation, the court may make note that the accused’s rights have been violated,

however, this does not affect the merits of the case against the accused person (which must run its full course)

 

CASE	HOLDING
Eluid Njeru Nyaga v Republic	The court was unable to hold that the prosecution had been given a reasonable opportunity to explain the delay but has failed to take advantage of the opportunity and there was no reasonable explanation for the delay. The court said: ‘even section 72(3) of the Constitution, which deals with the period of bringing an accused person to court, recognises that there can be a valid explanation for failure to bring an accused person to court as soon as reasonably practicable’
David              Waiganjo Wainina v Republic	‘We think it would be wrong for anybody to contend that where there has been inordinate delay in bringing an accused to Court, then without any further investigations such a person ought to be set free regardless of what had led to his arrest and incarceration’
Murunga v Republic	The court said it was the burden of the prosecution to raise the issue about the unlawful detention pf the accused in the custody of the police. The prosecuting authorities, after all, know the time and date when the accused was arrested. They also know when the arrested person is taken to court, and accordingly know or ought to know whether the arrested person has been in custody for longer than the expected period. The court stated: ‘under section 72(3) of the Constitution, the burden to explain the delay is on the prosecution, and we reject any proposition that the burden can only be discharged if the person accused raises a complaint. But in case the prosecution does not offer any explanation, then the Court as the ultimate enforcer of the provisions of the Constitution must raise the issue. . .That would help the High Court or any other Court to see if the explanation offered by the prosecution was reasonable in all the circumstances of the case’
Albanus       Mutua      v Republic	The court suggested examples of what might amount to an unacceptable explanation for the delay: (i)            It may be that upon arrest and being taken to the police station, the accused person fell ill, was taken to hospital and was admitted and kept there in excess of the period allowed; (ii)            The accused person was arrested on a Friday evening and because Courts do not operate on weekends he was not brought to court until the next working day; and neither was it possible to release the accused on bail at the material time; or (iii)            It may have been that the court house was fat from the police station; or (iv)            The station vehicle broke down and had no fuel

 

 

·       There is also a new line of jurisprudence which seems to suggest that any violation, no matter how slight, of an accused

person’s right to be arraigned in court in the constitutionally provided for period should lead to an automatic acquittal

·       For this line of thinking, the merits or evidential strength of the case facing the accused, as well as the seriousness of the offence with which he is charged, are absolutely of no monument

 

CASE	HOLDING
Ann Njogu and 5 Others v Republic	‘… in the absence of the authorities that are detaining, despite being duly served, there is no explanation, good or otherwise, as to why the applicants were not brought before court within 24 hours’.

 

	The learned judge went on to say that at the tick of the 60th minute of the 24th hour, if the applicants had not been brought before the Court, every minute thereafter of their continued detention was an unmitigated illegality as it was a violation of their fundamental and constitutional rights. There was as yet no known cure for the nullity that results from attempted prosecution of any person, in this country, once it is shown that his or her constitutional rights violated prior to the purported institution of the criminal proceedings complained against. Nor is there any room for the extension of the constitutionally provided for period of 24 hours. The Court went on to order the immediate release of the applicants.
Gerald                       Macharia Githuku v Republic	The appellant was arraigned in Court on a charge of robbery with violence. The date of his arrest was stated in the charge sheet to have been January 13, 1995 while the date of his first arraign- ment was stated as January 30, 1995, i.e. 17 days later. The appellant was tried, convicted and sentenced to death. After his first appeal to the High Court was dismissed, he brought a second appeal in which his counsel argued that the High Court had erred in affirming his conviction and sentence when his constitutional rights had been violated. The appeal Judges were unanimous in what they saw as a defence of constitutional rights. They stated that even though the delay of three days in bringing the appellant to Court did not cause him any prejudice and although the evidence showed that he was guilty as charged, nevertheless the failure by the prosecution to abide by the requirements of the Constitution could not be disregarded. The prosecution, on whom the burden of proof rested, had failed to satisfy the Court that the appellant, who was charged with a capital offence, had been brought before the Court as soon as was reasonably practicable.
Reoublic v Amos Karuga Karatu	‘A prosecution mounted in breach of the law is a violation of the rights of the accused and it is therefore a nullity. It matters not the nature of the violation. It matters not that the accused was brought to Court one day after the expiry of the statutory period required to arraign him to Court. Finally, it matters not that the evidence available against him is weighty and overwhelming. As long as that delay is not explained to the satisfaction of the Court, the prosecution remains a nullity’

CHAPTER 5: IDENTIFICATION PARADES

 

1.       INTRODUCTION

·       The Concise Oxford Dictionary defines an identification parade as an assembly of persons from whom a suspect is to be identified.

·       The Black’s Law Dictionary defines an identification parade as a police identification procedure in which a criminal suspect and other physically similar persons are shown to the victim or a witness to determine whether the suspect can be identified as the perpetrator of the crime

 

·       Therefore, Identification Parades are held where:

(i)            The police have sufficient information to justify the arrest of a particular person for suspected involvement in the offence; and

(ii)            An eye witness has identified or may be able to identify that person; and

(iii)            The suspect disputes his identification as a person involved in the commission of that offence

·       Njihia v Republic: the complainant stated that he had identified the appellant at an ID parade, but the Court of Appeal held that the ID parade conducted was not proper because contrary to the ratio of one suspect : eight police (i.e. 1 :8) officers (as stipulated in the Police Force Standing Orders), three suspects in this case were lined with eleven others

·       ID parades are important as without prior identification of a suspect who later becomes the accused person, there cannot be a proper conviction

·       Where there is no identification, the accused person cannot be convicted (in the absence of other factors connecting him to the offence)

 

2.       PURPOSE OF CONDUCTING ID PARADES

(i)             To enable the eye witness identify the suspect/suspects whom they allegedly saw prior to the trial being held

o   Ajode v Republic: a dock identification is considered generally valueless unless a properly conducted ID parade is held to justify the suspects being charged with the crime. In addition, a court should not place much reliance on dock identification unless the same is preceded by a properly conducted ID parade

o   Wafula & 3 Others v Republic: there was a failure on the part of the police to investigate the case properly, particularly a failure to conduct ID parades, resulting in a dock identification almost 14 months later

(ii)            To facilitate due process which is a fundamental requirement in criminal law

o   Article 50(2), Constitution 2010 cements the right to a fair trial, including the right to have an ID parade conducted in accordance with set down procedure prior to the accused being charged

o   John Musyimi Mutua & Wambua Muite v Republic: the witness identified one appellant in an ID parade two years after the crime, and no ID parade was conducted for the second appellant. The court held that the admissibility of such evidence was unreliable, and so the conviction of both were quashed

 

3.       EXCEPTIONS TO ID PARADES

(i)             Where the suspect does not consent

(ii)            Where it is impracticable to assemble people who resemble the suspect

(iii)            Where the eye witness cannot identify the offender

(iv)            Where the case is one of pure recognition of someone well known to the witness

 

4.       PRELIMINARY ISSUES

·       Evidence of identity (pertaining to the visual identification of the suspect) is often an expression of an opinion that a person seen at one time (in court) is the same person as was seen at some other time (during the commission of the crime)

·       Evidence of identity is admissible in trial, regardless of whether the identification took place during the crime or at an ID parade

·       Identification parades to establish the suspect(s) involved in the commission of the crimes is crucial and it is one of the most important processes in the conduct of investigations

·       If the police have arrested a suspect on the basis of other evidence, and there are witnesses who indicate that they might be able to make an identification of the suspect, then an ID parade should be conducted for positive identification

·       Where the witness states that he recognised the suspect during the commission of the crime, the ID parade is not conducted. However, while recognition may be more reliable than identification of a stranger, even a witness purporting to recognise close relatives and friends may sometimes make a mistake

 

5.       CONDUCT OF IDENTIFICATION PARADES

·        The conduct of an ID parade is provided for in the Police Standing Force Orders (‘PSFO’)

·       The court has always emphasised that the value of identification as evidence would depreciate considerably unless an identification parade was held with scrupulous fairness and in accordance with the instructions contained in the PSFO

·       Before conducting the identification parade, the witness should give the description of the accused to the police, which is to be recorded and later produced into evidence – it is on this basis that the parade is conducted

 

CASE

HOLDING

Ntelejo   Lokwan v Republic

The police identification was held three years after the robbery. The court held that in the absence of a description being given to the police when the first report was made after the robbery had taken place, it would be impossible for an independent tribunal evaluating the evidence to arrive at a determination that the complainants had in fact made a positive identification of the appellant, which identification was confirmed when they identified the appellant in an identification parade conducted by the police

 

 

ORDER	EXPLANATORY NOTE
Suspect must be informed of the reason for the parade	·    This offers the accused a certain level of security ·    The solicitor or friend, if chosen to be present, can take photographs of the identification parade procedure upon request from the police officer in charge of the parade ·    The advocate’s role is that of an observer – participation by the advocate may result in him/her playing the role of witness, giving rise to a conflict of interest
Suspect may be informed that he can have an advocate or a friend present
Investigating officer should not conduct the identification parade – though he may be present	·    The officer conducting the parade should state that he is independent and knows nothing about the case ·    This ensures fairness, as the officer in charge of the case – if he were to conduct the parade – would be prejudicial to the accused (due to the information he has in his possession)
The witness/witnesses should not see the accused before the parade	·    This may be prejudicial to the accused and may undermine the evidential value of the parade ·    Ajode v Republic: it would not be proper for a complainant to be a witness at an identification parade two days after the arrest for he had already seen the accused – i.e. once a witness has seen the suspect before the parade, he will be doing no more than demonstrating his recognition of the suspect and not identifying the suspect ·    Athumani Manzogo & Another v Republic: in cases where the witnesses say they do not know the suspects but are able to identify them, the suspects should not be shown to the witnesses immediately after the arrest or while in the police station before they are identified at a properly conducted parade
The accused should be placed amongst at least eight other persons	·    The correct ratio is one suspect to eight persons

 

Such persons should be of similar age, height, general appearance and class of life as himself	·    Njihia v Republic: the court held that the ID parade was improperly conducted because contrary to the ratio stipulated in the PFSO, the suspects had been lined up with eleven others ·    David Mwita Wanja & 2 others v Republic: the parade was held to be improperly conducted where the witnesses could readily tell by elimination that the two appellants were the only new faces in the parade
If the accused is suffering from any disfigurement, steps are to be taken to ensure that it is not apparent
The accused should be allowed to take any position in the line-up and allowed to change the same after the first identifying witness has left, if he so wishes	This ensures that the suspect does not feel ‘noticeable’ and for guaranteeing protection to the accused
Care should be exercised that witnesses do not communicate with each other	This is to ensure that the accused feels safe and protected from bias that is likely to arise from any information being exchanged
Every    unauthorised    person    should             be excluded	Unauthorised persons are likely to interfere with the psychology of the accused person or suspect, and so this ensures that they feel safe and protected from a likelihood of prejudice or bias
If the witness desires the accused to walk, speak or put on his hat, then he should do so – but the whole parade should do the same	·    This ensures that the suspect does not have an undue advantage in comparison to others ·    E.g. where the only person in the parade is wearing a scarf or is the only one asked to speak – this would be prejudicial
The conducting officer is to ensure that the witness identifies the person without the possibility of error	·    I.e. the witness has to touch the person he/she identifies ·    This ensures certainty and avoids confusion likely to arise due to any misunderstandings ·    E.g. where the police officer understands the witness pointing at the suspect as the witness pointing at someone else, and records this mistaken information
At termination/during the parade, the conducting officer should ask the suspect if he is satisfied with the manner in which the parade is being/has been conducted And make a note in writing of his reply	Jimmy Wanjiku v Republic: the court held that the parade was properly conducted as the accused signed the report indicating that he was satisfied with the manner in which it had been conducted
The witness should be told that he will see a group of people and the suspect may or may not be there	·    Ndiku & 2 Others v Republic: the court held that the ID parades were conducted unprocedurally because the police officer suggested to the witness the presence of the accused/suspected person in the parade ·    Oluoch v Republic: the court held that the evidential value of an identification parade may be depreciated by the fact that it was suggested to the witness that the person to be identified is believed to be present at the parade
The witness should not be told to pick out somebody, or be influenced in any way whatsoever
A careful note must be recorded after each witness has left, stating whether the witness identified the accused person and stating the circumstances of such identification	·    This has the effect of making the accused part of the process, with the ultimate goal of conducting the parade fairly ·    It also provides the accused person with an opportunity to object to how the parade process was conducted
The comments of the accused person should be recorded by the conducting officer, especially after he/she has been identified	This is done for the purpose of keeping proper records and to determine the question of positive identification
The parade must be conducted with scrupulous fairness, or else the value of the identification parade will be lessened or nullified	·    This point is well captured in R v Mwago s/o/ Manaa [1936] ·    It is also important to note that ID parades should be conducted with as much privacy as possible – they should not, unless unavoidable, be held in the view of the public, but rather in a closed compound/yard from which spectators and unauthorised persons are excluded
Police officers should not make up the parade, unless they are accused

 

6.       SECURITY FOR THE VICTIM/WITNESS

·       The PFSO also provide that where a witness desires to keep his identity secret, and the circumstances are such that the officer in charge of the case deems such a course advisable for security reasons, arrangements will be made for the witness to view the parade from a concealed vantage point (e.g. through a window, from behind a screen, etc.)

·       If the witness identifies one or more persons on the parade, the persons so identified will be removed from the parade and brought before the witness, who will be asked to confirm their identity in the normal way (i.e. by touching the person)

 

7.       FACTORS INFLUENCING THE IDENTIFICATION PARADE

·       These are factors that the court will take into account in determining whether the accused is the perpetrator of the crime

– i.e. does the identification place the accused at the scene of the crime?

·       These factors are also referred to when an issue arises regarding the conduct of the ID parade

 

7.1    CIRCUMSTANTIAL EVIDENCE

·       The prosecution should not rely wholly on circumstantial evidence, unless there are no existing circumstances that would weaken or destroy such inferences being drawn

·       The guilty of the accused must not be based on suspicion – suspicion, however strong, is not a basis for inferring guilt

·       R v Manyara: ‘it must be remember that it is not enough for the police to round up as many suspects as possible when a serious crime occurs and arraign them in court without having carried out sufficient investigations as would reveal the involvement of each and every accused person in the commission of the offence as charged with’

 

7.2    POSITIVE IDENTIFICATION

·       If a witness is unable to identify the accused person at the ID parade, they cannot purport to identify them at the dock

·       Positive identification will be said to have taken place where the complainants attend several different ID parades but are unable to point out any person other than the alleged perpetrator of the offence

 

7.3    INITIAL REPORT

·       The initial police report should contain an accurate description of the accused

 

7.4    NATURE OF THE LIGHT

·       The question here is whether there was sufficient light to enable identification of the assailant, which determines whether the witness had an opportunity to sufficiently observe the perpetrators so as to be able to confirm their identity subsequently

·       Maitanyi v R: ‘it is at least essential to ascertain the nature of the light available. What sort of light, its size, position relative to the suspect, are all important matters helping to test if one of these matters are unknown because they were not inquired into by the trial magistrate’?

·       Muiruri & 2 Others v R: a correct ID of the attackers was facilitated by the fact that the torchlight was adequate since the inner walls of the house of the witnesses were painted white, causing the light to reflect on the attackers’ face

·       This question can also be answered by determining whether the witness spent any time with the attacker and/or was alter during the whole ordeal

 

7.5    CONDITIONS PRESENT DURING THE COMMISSION OF THE OFFENCE

·       It is vital whether the commission of the offence took place at night or during the daytime – e.g. the issue of light will then come into question when determining the accuracy of the description of the attackers

·       Evidence of identification at night must be tested with the greatest care

·       The appearance of the perpetrators, whether they had concealed their identity, the length of time spent with them, whether the witness had a conversation with the alleged perpetrator, etc. are also important factors in determining the validity of any subsequent identification

·       R v Turnbull: ‘when the identification is made after a long period of observation, or in satisfactory conditions by a relative, neighbour, close friends, workmate, the jury can be safely left to assess the value of the identification evidence even though there is no other evidence to support it; provided always, however, that an adequate warning has been given about

the special need for caution … if the identifying evidence depends on a fleeting glance or a longer observation in difficu lt

conditions [an error exists]’

 

7.6    DEMEANOUR OF WITNESS

·       This refers to the ability of the witness to identify the accused easily and without hesitation – it should be based on integrity, honesty and truthfulness of a witness Jimmy Wanjohi v R)

·       It is possible for a witness to believe he has been attacked by someone he knows, yet be mistaken

·       The difficulty comes in when witnesses want to be helpful and pick out somebody, and instead create a fictional person

 

7.7    DIFFICULT CIRCUMSTANCES

·       The presence of difficult or hectic circumstances can lead to a mistaken identity, e.g. where a witness was extremely frightened, scared or shocked (Toroke v R)

·       R v Manyara: there existed difficult circumstances where people ran helter-skelter and there was total chaos. It was at night, there was no indication of sufficient light being present and there was a lack of a distinguishing mark to identify the accused. Thus, mistaken identity could not be ruled out

·       Muiruri v R: where the witness has become used to the circumstances, they cannot be said to have been under extreme fright so as not to be able to observe their attacks well

 

7.8    SINGLE WITNESS IDENTIFICATION

·       Abdalla Bin Wendoh & Another v R: ‘a fact may be proved by the testimony of a single witness. The evidence must be tested with the greatest care. The possibility of error must be carefully scrutinised and excluded’

·       Whether the identification by a single witness is sufficient to sustain a conviction depends on the circumstances of the case, especially where an ID parade was not conducted to test the veracity of the witness’s assertion

 

7.9    REASONABLE TIME

·       Nicodemus Mwita & Another v R: it was stated that it was doubtful that the witness could retain in their minds a clear description of the robbers whom they had not known before, for such a long time and in the absence of any special outstanding features in their bodies – this is because the ID parades were conducted 10 months after the first robbery and 8 months after the second robbery

·       For instance, in John Mulinge v R, the assailants were identified 2 weeks after the commission of the crime and the witnesses were able to identify them separately without hesitation

 

8.       VISUAL IDENTIFICATION

·       The visual identification of suspects by witnesses has for many years been recognised as problematic and potentially unreliable – it is easy for an honest witness to make a confident, but false, identification of a suspect

·       There are many reasons this may happen, among them:

(i)            Some people have difficulty distinguishing between different subjects of only moderately similar appearance;

(ii)            Witnesses to crime are able to see the perpetrators fleetingly, often in stressful circumstances;

(iii)            Visual memory may fade with time and may become confused or distorted;

(iv)            There is evidence that ‘unconscious transference’ may occur – where a witness confuses a face he recognises from the scene of the crime;

(v)            Witnesses rarely remember more than portions of events and their recollection may change through self-interest or suggestion;

(vi)            Witnesses are not always articulate and descriptive;

(vii)            Though understandable, but often misguided, many witnesses are eager to help police by making positive identifications

 

9.       DOCK IDENTIFICATION v IDENTIFICATION PARADES

·       Dock identification occurs where a witness/witnesses point out the accused standing at the dock and identify him/her as the culprit who committed the crime

·       Courts generally avoid convictions based on dock identifications because such evidence without corroboration is of a lesser value or worthless

·       Gabriel Njoroge v Republic: the court held that the dock identification of a suspect is generally worthless unless other evidence is adduced to corroborate it

·       Amolo v Republic: ‘the reason for the courts reluctance to accept a dock identification is part of the wider con cept, or principle of law, that it is not permissible for a party to suggest answers to his own witnesses or, as it is sometimes put, to lead his own witness’

·       Thus, it is generally believed that if an accused sits in the dock while the witness gives evidence in a criminal case against him, undue attention is drawn towards him – i.e. his presence may in certain cases prompt a witness to point him out as the person he identified at the scene of the crime even though he might not be sure of that fact

·       It is important to note, however, that there the witness/complainant is personally known to the suspect, the evidence after dock identifications is admissible in court

 

10.    PRODUCTION OF ID PARADE EVIDENCE

·       The report filed by the police officer conducting the parade shall be admitted to court as evidence

·       This report addresses the issues of:

(i)            The number of witnesses and members of the parade present;

(ii)            The police officer in charge of the parade;

(iii)            The position of sanding of the suspects subsequently identified;

(iv)            Any objections raised; and

(v)            If the accused/witness are satisfied with the manner in which the parade was conducted

·       Once the suspect is arraigned (after the parade), the evidence on identification of the suspect produced in court is:

(i)                   The testimony of the ID parade officer who conducted the ID parade;

(ii)                 The production of the ID parade form as an exhibit in court; and

(iii)                The evidence of the arresting and/or investigating officer of the case

 

11.    THE TURNBULL DIRECTION

·       “Whenever the case against an accused person depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the court should warn itself of the special need for caution before convicting the accused in reliance on the correctness of the identifications”

·       The court should emphasise on the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one

·       Secondly, the court should examine closely the circumstances in which the identification by each witness came to be made

(i)            How long did the witness have the accused under observation?

(ii)            At what distance?

(iii)            In what light?

(iv)            Was the observation impeded in any way?

(v)            Had the witness seen the suspect before?

(vi)            How often?

(vii)            If occasionally, had he any special reason for remembering the accused?

(viii)            How long lapsed between the original observation and the subsequent identification to the police?

(ix)            Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance?

CHAPTER 6: PREPARATION OF FILES FOR TRIAL

 

1.       INTRODUCTION

·       A file is a folder that holds loose papers together for organisation and protection

·       Folders usually consist of a sheet of heavy paper stock or other thin, but stiff, material which is folded in half, and used to keep paper documents (often used in conjunction with a filing cabinet for storage)

·       Successful practitioners need to have the ability to think on their feet, muster the art of persuasive talking and impress by their charisma

·       However, one has to effectively prepare for the task of representation for them to exude the confidence expected of a practitioner – this preparation entails: knowing the facts of the case thoroughly, considering the relevance of all the facts in their legal context, considering possible responses to any points made, planning, and thinking through arguments beforehand

·       However, for effective preparation, the prosecution and defence have to maintain a file with the basic documentation

 

2.       POLICE FILE/PROSECUTION FILE

 

MARKING	SUB-FILE	EXPLANATORY NOTE
A.	CUSTODY RECORD	·    This explains the reason why the suspect was arrested, place of arrest, time and date ·    It indicates the time when the suspect arrived at the station and his condition on arrival ·    A detention decision is then made to keep the suspect in police custody possibly to await arraignment or pending further investigation ·    The comment by the suspect on being informed of detention is also recorded ·    It contains the name of the officer opening the custody record ·    The accused person’s personal details like names, postal and residential addresses, age, occupation and ethnic/racial group are recorded ·    The name and rank of the arresting officer and officer in charge of the investigation are also noted ·    The detained person’s rights are read recorded and an interpreter is engaged, in case the suspect does not understand the language
B.	SKETCH PLANS AND DOCUMENTARY EXHIBITS	·    Photographs, sketches, plans and such other material referring to the scene of crime, together with copies of any other documentary exhibits should follow the reports ·    Photographs should be mounted on foolscaps – in case they are not mounted on foolscaps, then they should be placed in envelopes of a suitable size and the contents thereof clearly listed on the outside
C.	COPIES OF REPORTS [EXPERT REPORTS]	·    E.g. the post mortem, ballistic report, finger print, expert report, handwriting expert and all other expert reports ·    Contents of medical reports and such other experts whose language is technical must be supported by a statement from the expert setting out in detail and simple language the contents of the report
D.	STATEMENTS OF PROSECUTION WITNESS(ES)	·    The prosecution files must have prosecution witness statements ·    The complainant’s statement that forms the substratum of the charge must be on the file ·    The arresting office, investigation officer, as well as all expert witnesses’ statements and all material witnesses’ statements should be in the police file ·    Every statement recorded by police will: i.            Show the date, time and place it was taken; ii.            Bear the full names age, registration and full address and all other available information; iii.            Identify particulars relevant to the individual making the statement; iv.              The language used by the person making it will be indicated at the head of the statement (if other than in English);

 

		v.            If an interpreter is used, a certificate shall be completed by the interpreter; vi.            The statement must be endorsed to the effect that the author has been invited to effect corrections he wishes to make after reading it; vii.            The statement must be signed by the witness or if illiterate thumb printed; and viii.            If the witness declines to authenticate the statement, then the reason thereof is recorded, if given by the witness ·    Copies of all other prosecution witness statements will then follow à including evidence of the identification parades which follow the main identifying witness ·    The statement of the Police Officer conducting the ID parade will be cross referenced with statements of each identifying witness for ease of reference, and will itself include as an addition to the statement a copy of police form P. 156
E.	CHARGE, STATEMENT UNDER INQUIRY, STATEMENTS                               OF ACCUSED PERSON	The investigating officer will interrogate the suspect on the alleged offence and any statement made will be kept in this sub-file.
F.	INVESTIGATION DIARIES	Investigation diaries of all police officers conducting the investigation, which must be full and accurate, i.e. setting forth times, dates and places visited and action taken, should be marked in the ‘F’ file.
G.	CHARGE SHEET AND RELATED DOCUMENTS	·    The documents that will be read in court to the accused person should follow ·    Upon completion of investigations, the Investigation officer will prepare the charges in a charge sheet and place in this file ·    During the trial, the charge sheet maybe amended or substituted and such copies will be kept in the sub file ·    Section 214 CPC allows the prosecution to amend or substitute the charge sheet any time before the close of the prosecution case
H.	LIST OF WITNESSES, EXHIBITS, PRISONER’S PROPERTY, ACCUSED’S PREVIOUS CRIMINAL RECORD & STATISTICS FORMS	·    The fingerprint form of the accused will be placed in this sub file ·    The accused person’s record will also be in this file ·    The prisoner’s personal effects will be listed in this sub file, e.g. the documents, watch, wallet, shoes and money ·    Inventory of items recovered from accused or his home or place of arrest that relate to the case or are deemed to be stolen items will be in this file ·    This file also contains the list of the witnesses to testify
I.	COVERNG REPORT	·    The document that follows thereafter is the covering report drawn up by the officer in charge of the investigation, setting forth in detail the prosecution case as it stands ·    This report is by the Officer in charge of investigations giving the chronology of events and conduct of investigations culminating to the decision to charge the suspect and arraign him in court with specific charges ·    The Investigation officer in giving the findings will cross reference with relevant witness statement and exhibit. ·    Reference must be made to the contents of the file e.g. F1 for quick reference
J.	CORRESPONDENCE OR MINUTE-SHEET	·    On the left-hand side of the police file cover, a correspondence sub-file will be kept ·    The sub-file contains correspondence between police personnel with regard to the case ·    Correspondence between the Investigation officer & officer in charge of the Station, the State Counsel, Attorney General’s office, DPPs office ·    This sub-file deals with requests for advice from the IO to the officer in charge or any other correspondence on the matter ·    The sub-file also contains instructions from gazetted officers/state counsels to IOs ·    Commendatory remarks and other matters on interest arising out of the case are also recorded in the sub-file

N.B.: the police/prosecution file is ordinarily prepared in accordance with the PFSO.

3.       ADVOCATES FILE

·       The advocate has a pivotal role in the trial – he is the central figure who communicates his client’s story to the court

·       “Just as the quality of a story depends on the authority, the persuasiveness of a case depends on the author too”

·       A case presented in court is as much a product of the lawyer’s conceptual skills as it is a re-capitulation of evidence

·       Making a compelling case requires work – the advocate will marshal evidence to prove facts that support the ultimate findings and make it understandable and convincing to the court

·       Preparation is essential to success in litigation – an advocate cannot rely on natural ability and charm to produce a winning case, not expect fate to produce the winning point in an inspired cross-examination

·       To adequately prepare for trial, an advocate must know the case itself as much as possible, including what other parties to the suit are using to build their case à e.g. what the court and police files have, and based on this, to build a comprehensive defence file

MARKING	SUB-FILE	EXPLANATORY NOTE
A.	INSTRUCTION NOTE	·    It contains a note of the exact action required of the advocate ·    It contains the advocate’s name, name and address of the person giving the instructions, as well as the retainer agreement
B.	CLIENT ATTENDANCE FORM	·    This form indicates the name of the client, the date of attendance, the length of time spent attending to the client/their representative, the purpose of the attendance, etc.
C.	COURT ATTENDANCE FORM	·    Date of attendance ·    Length of attendance ·    File reference ·    Name of client ·    Case number and parties ·    Name of advocate in attendance + counterpart in attendance ·    Name of judicial officer ·    Purpose of court attendance + instructions for the said attendance ·    What transpired in court ·    Further instructions as a consequence of the court attendance
D.	CHARGE SHEET	Th advocate will be given a copy of the charge sheet after their client takes a plea (not guilty)
E.	BAIL/BOND DOCUMENTATION	If the offence is bailable, then the advocates file will have the necessary copies of the necessary document for the admittance of the client to bail (the original versions of the documents are deposited in court)
F.	LEGAL OPINION/ BRIEF	It is also important for the advocate to render a preliminary legal opinion to the client on the strengths and weaknesses of the case as this may be important when it comes to considering a potential out-of-court settlement
G.	WITNESS STATEMENTS                            AND DOCUMENTARY EXHIBITS	On attending court, after taking plea, the advocate would ordinarily apply to court for copies of the statements and documentary exhibits to be relied upon during the trial
H.	LEGAL RESEARCH	After the lawyer has gathered the necessary evidence, legal research is conducted and a list of cases to be relied on during the trial are placed in the file
I.	CASE CONCEPT/ BATTLE PLAN	·    The advocate’s file will contain notes on the fact/case analysis of the evidence gathered and the legal principles that are applicable ·    The outcome will be the strategy which will be the case concept/battle plan for the trial process
J.	DEFENCE CASE	Copies of reports such as post mortem, ballistic report, finger print evidence, expert reports, and all other expert reports should be placed on the defence sub-file
K.	DEFENCE                     WITNESS STATEMENTS	·    Defence files must have defence witness statements ·    List of defence witnesses and exhibits should also be on the file ·    The advocate should have a list of authorities that he intends to rely on while submitting

4.       COURT FILE

·       The court file is opened when the suspect is arraigned in court

·       The case is given a number serially (in tandem with the current year), and the charge sheet from the police station is placed in the court file

 

COVER                  PAGE (TOP OF FILE)	i.             Court of arms ii.            Court name and location iii.            Case number and year iv.            Name of the suspect(s) v.            Name of the case (i.e. the charge(s))
FIRST                  PAGE (INSIDE FILE)	i.             The date ii.            Names and rank of judicial officer to conduct the trial iii.            Names and rank of the prosecutor iv.            Names of the Court Clerk v.            Name of the various counsel/advocates vi.            Names of the interpreter (if present/needed) vii.            Language used in the proceedings
CHARGE SHEET	·       This is the foundational document which initiates criminal proceedings before the court – S. 89(4) CPC
BAIL/BOND DOCUMENTS	·       Bail consists of the temporary release of an accused person from imprisonment on finding sureties or security to appeal for trial ·       The accused is to make a written promise that in return for his temporary release, he will appear in court at a specifies time and date ·       It is an agreement between the accused and the court that the accused will pay a certain sum of money fixed by the court if he/she fails to appear to attend trial on a certain date ·       The object of bail is to ensure that the accused will attend his trial without his/her being detained in prison on remand
PARTICULARS OF          SURETY DOCUMENTS	·       A surety is a pledge by another person guaranteeing that if the accused person does not appear before the court at the specified time and on the specified day, he/she will pay a certain sum of money to that court
RELEASE ORDER OF SUSPECT	·       If the suspect/accused person’s request for temporary release pending hearing is granted, a release order will be made and will appear in the court file
COURT EXHIBIT LIST	·       It is unlikely that at the initial stage there will be any exhibits ·       However, if there are, there will be an Exhibit List enumerating them ·       If they come subsequently, similar listing will apply
COURT LIST OF WITNESSES	·       The police charge sheet has a column for names of witnesses ·       Unless there is good reason not to disclose them, it is expected that this list of witnesses will be fully named and shown on the charge sheet
HIGH       COURT ORDERS	·       Examples of situations where a Magistrate’s Court file may house High Court Orders include cases where a reference has been made to the High Court for certain directions BY the Magistrate’s Court ·       Where such directions or orders are given, they would be transmitted to the Magistrates’ Court and housed in the Magistrates’ Court file
HEARING PROCEEDINGS	·       Criminal proceedings commence from when a suspect is arraigned in court and takes plea ·       The plea taking process is recorded ·       When the hearing starts, the proceedings are recorded of all that is said by each witness, cross examination thereof and comments made during the proceedings ·       All pages of the proceedings are marked serially except the court rulings and judgment that are marked separately ·       During trial the exhibits are marked and produced but are kept separately from the court file, the documentary exhibits are kept in the registry, and the physical exhibits in the exhibits’ store

4.1    APPLICATIONS

·       Related to the court file, the accused person/suspect may have some applications or complaints to make:

(i)            If he/she has been in custody, he/she may apply, through counsel or on their own, for bail pending trial;

(ii)            He/she may complain about torture, other ill-treatment or neglect while in police custody;

(iii)            Suspect’s/accused’s advocate may address the court regarding the suspect’s/accused’s complaints;

(iv)            After due inquiry, the court makes necessary rulings and gives appropriate orders;

(v)            The court orders may relate to bail/bond for the suspect/accused; may direct medical examination and treatment of the suspect/accused; may fix mention and/or hearing dates; etc.

·       All this information will be found in the court file

CHAPTER 7: COMPLAINT AND CHARGE

 

1.       INSTITUTION OF CRIMINAL PROCEEDINGS

 

CPC PROVISION	WHAT IT STATES
S. 89(1)	Proceedings may be instituted in court either by the making of a complaint or by bringing before a magistrate a person who has been arrested without a warrant
S. 89(2)	A person who believes on reasonable and probable cause that an offence has been committed by another person may make a complaint thereof to a magistrate having jurisdiction
S. 89(3)	The complaint may be written or oral, and where it is oral, it is reduced to writing by the magistrate. In either case, the complainant and the magistrate both sign the complaint
S. 89(4)	The magistrate then draws up, or causes to be drawn up, and signs a formal charge containing a statement of the offence with which the accused is charged, unless the charge is signed and presented by a police officer
S. 89(5)	If the magistrate is of the opinion that the complaint/formal charge does not disclose an offence, he may make an order refusing to admit the complaint and must record his reasons for the order
S. 90(1)	Once he has received and signed the charge, the magistrate may then issue either a summons or a warrant to compel the attendance of the accused person before a subordinate court having jurisdiction to try the offence alleged to have been committed
S. 90(2)	The validity of proceedings undertaken in pursuance of a complaint or charge are not affected either by a defect in the complaint or charge or by the fact that summons or warrant were issued without a complaint or charge (summons or warrant may be issued on any day, including Sunday)

 

·       The fact that there is a different criminal procedure given by the law to remedy a situation does not mean that where investigations have been undertaken and a criminal offence disclosed, the person found to have contravened the criminal law cannot be charged with a criminal offence (Kinyanjui v Republic)

·       S. 193A, CPC 2003 makes provision for the existence of these concurrent criminal and civil proceedings

 

2.       THE CHARGE SHEET

·       ‘Charge’ is used to refer to the statement of the offence or offences which a person is accused of and the particulars thereof

(no case may proceed without a charge)

·       The charge states concisely the offence which the accused person is alleged to have committed, and is the process by which the accused and the magistrate/judge are informed of a suspected offence

·       Martino Judago v West Nile District Administration: the failure to frame a charge in the subordinate court was a fundamental and fatal mistake; the trial was declared a nullity and a re-trial ordered

 

3.       JOINDER OF COUNTS

·       ‘Joinder of counts’ refers to the charging together of a number of offences – be they felonies or misdemeanours – in the same charge sheet

·       S. 135(1) CPC: joinder is permissible if the offences charged are founded on the same facts or form or are part of a series of offences of the same or a similar character

·       The rule is that where an accused is alleged to have committed more than one offence, he may be charged in the same proceedings with all the offences

·       From a practical stand point – joinder of counts is both convenient and expedient – it saves time and avoids a multiplicity of trials revolving around the same set of facts

·       It is advantageous for the accused, not only in that it saves him legal costs, but it affords him the opportunity of serving concurrent sentences in the event of conviction

·       However, under S. 275(4) CPC: where the court is of the opinion that the accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same charge sheet, or that for any other reason it is desirable that the accused should be tried separately, the court may order a split trial – also known as a ‘separation of trials’ respecting any counts or counts of the information

 

CASE	HOLDING
Ngibuini v Republic	Where there is a single complex of offences connected in kind and time, it is undesirable, although not unlawful, for the accused to be arraigned on separate trials. It is also undesirable to have separate trials as it denies the court the opportunity to look at the accused vis a vis the series of offences as a whole when sentencing
Godfrey Mandengwa v Republic	However, the manner in which the charges are framed should not embarrass the accused or render his appeal nugatory. The Court of Appeal stated that appellate courts have the jurisdiction to re-evaluate facts of a case and the evidence to satisfy themselves that the accused has not been prejudiced or embarrassed in answering the charge framed
Mwero v Republic	Where offences which are not founded on the same facts or do not form part of a series of the same or similar character are charged in the same charge sheet or information, the same will be ruled improper as it amounts to misjoinder
Republic                      v Gulamhussein Jetha	The appellant was convicted of one count for obtaining money by false pretences, and on another of giving false information. The facts alleged were that the appellant had obtained money by false pretences with intent to defraud on 27 June; and that on July 8; he made a false report that his house had been burgled and the money stolen. Ten days had lapsed between the obtaining of the money and the alleged false report of the burglary. The Court of Appeal held that it was doubtful whether the charge in respect of the false report could be said to have been founded on the same facts as the other charge and that it might, therefore, have been more properly made the subject of a separate trial
Velezi               Kashizhs       v Republic	A charge of murder ought not to be laid with a count of another, lesser offence. The basis for this distinction where murder is concerned must lie in the fact that it is the most serious offence there could ever be, attracting the ultimate penalty and it ought, therefore, to stand singly

 

4.       JOINDER OF PERSONS

·       This refers to the joining together of two or more accused persons within the same charge or information and trying them together within the same proceedings

·       The following persons may be so joined:

(i)            Persons accused of the same offence, committed in the course of the same transaction;

(ii)            Persons accused of an offence and persons accused of abetment, or of an attempt to commit the said offence;

(iii)            Persons accused of two or more offences of the same kind, committed jointly within a period of 12 months;

(iv)            Persons accused of different offences committed in the course of the same transaction;

(v)            Persons charged with offences relating to theft or fraudulent acquisition of property between who possession or retention of the said property has been transferred; or

(vi)            Persons accused of an offence relating to counterfeit coin, or of abetment or attempting to commit any such offence

 

CASE	HOLDING
Republic v Ndungi and Others	Some herdsmen were convicted of contravening the Disease of Animals Ordinance prohibiting the movement of cattle in a proclaimed area. It was held that to try five persons together for different offences committed at different times and places is an irregularity vitiating the trial
Republic v Hassan wa Saleh and Another	It was held that two persons accused of raping two different women separately albeit at about the same time and place could not be tried at the same trial, the transaction not being the same
Malebe v Republic	Three appellants faced separate counts of stealing by servant in one charge sheet. The particulars stated that the offences were committed on separate dates. The items alleged to have been stolen were different. They were not charged as having had a common intention. They appealed against their convictions and sentences. It was held by the High Court that a joint charge against several accused persons alleged to have committed separate offences on different dates amounts to a misjoinder and such a charge is defective. There should have been a separate charge for each person and separate count for each alleged offence committed on a different date

 

5.       RULES FOR FRAMING OF CHARGES

·       Article 50, Constitution 2010: the accused should be charged with an offence known to law

·       The offence charged should be disclosed and stated in a concise, clear and unambiguous manner (i.e. ordinary language) to enable the accused understand it and plead thereto from a point of knowledge

·       This also helps the accused person to prepare a defence

 

5.1    STATEMENT OF OFFENCE

·       A count of a charge must commence with a statement describing the offence charged – i.e. the statement of offence

·       The statement of offence should offer a brief description of the offence in an ordinary language, i.e. avoiding as far as possible the use of technical terms

·       It is not necessary to put all the elements of the offence within the statement, but courts have taken the view that where the offence charged is a technical one, they should be stated

·       If the offence charged is one created by a statutory enactment, it must contain a reference to the section of the enactment creating the offence à the correct procedure is to state the section of the statute that prescribes the punishment for the offence

·       The court must ensure that the accused person fully understands the charge being read to him, ordinarily ensures by having someone explain the same to the accused (which requirement is more stringent for more serious offences)

 

CASE	HOLDING
Republic  v  George Samuel Sowe	It would be preferable that the offences with which the accused is charged should be written out by the magistrate in all cases. Such a course should certainly be adopted in cases where a heavy sentence may be imposed
Mwangi              and              & Another v Republic	To increase clarity and banish confusion, it is desirable that where different offences are committed, to draft the charges in relation to those offences under separate and distinct paragraphs or counts so that the accused person knows precisely what he is to defend himself against

 

5.2    PARTICULARS OF OFFENCE

·       Particulars of the offence should be given in an ordinary language

·       Essential ingredients of the offence, e.g. date, place, time and circumstances in which it was committed must be stated

·       Where there are two or more accused jointly charged, the courts must frame the charges against with sufficient particulars as to the part played by each accused

 

CASE

HOLDING

Tembere v Republic

The accused was charged with the offense of handling stolen property. The particulars of the charge merely stated that he handled. It did not state the nature of handling whether by receiving, retaining, etc and more importantly, it did not state that the possession or receipt was dishonest. The High Court held that the charge did not disclose the offence of handling stolen property and the facts stated did not contain all the elements of the offence. As a result, the accused did not validly plead guilty to the charge of handling

 

5.3    FORMS

·       The Second Schedule, CPC contains forms setting out the manner in which various offences should be charged – this is a guide to the manner in which the offences should be stated in the charge sheet

·       The framing of charges should be in accordance with the said forms or forms conforming thereto as nearly as may be, but the statement of offence and particulars of offence may be varied according to the circumstances of each case

·       The use of the forms is expressed in obligatory terms and any variation from the wording contained thereto may be fatal

 

5.4    COUNTS

·       Where more than once offence is charged in a charge sheet, a description of each offence so shared must be set out in a separate paragraph – each of these paragraphs is a ‘count’

·       Where a charge sheet contains more than one count, the counts must be numbered consecutively

 

CASE

HOLDING

Mwaitige v Republic

The appellant was charged on four counts with illegally selling over five tons of coffee to a dealer. The charge set out in a single statement brief particular of the alleged statutory offence alleging a contravention of a certain Agricultural Order, followed by particulars of the four counts in succession. This was set out in detail followed by particulars of the four occasions on which it was alleged that the order had been contravened. The four separate sets of particulars in the counts were not preceded by statements of the offence. This was held by the Court of Appeal to have been irregular as each count is a distinct offence and should contain a statement of the offence of its own.

 

6.       DUPLICITY

·       Any count that charges within it more than one offence is said to be bad for duplicity

·       This is a fundamental offence and not normally curable, as when an accused person goes through trial, the fairness of the process is compromised as it will not be clear to him what the exact charges that confront him are. Therefore, he may not be able to prepare a proper defence and this is clearly prejudicial

 

CASE	HOLDING
Laban Koti v Republic	The Court held that in deciding whether there is duplicity in a charge, the test is whether a failure of justice has occurred or the accused has been prejudiced
Omboga v Republic	The court held that injustice will be occasioned where evidence is called relating to many separate acts all contained in one count because the accused cannot possibly know what offence exactly he is charged with
Saina v Republic	The accused person faced a single count of house breaking, theft and handling stolen property. On appeal, the High Court was of the view that that charge was an incurable illegality
Republic  v  Sowedi Kauta	The court held that a charge alleging the murder of two persons in one count was bad in law. There should have been two separate counts
Mwangi v Republic	HOWEVER: the accused was charged with being in possession of fire arms and ammunition in the same count. The Court found it not to be bad for duplicity because the two offences were so intimately linked to each other that they could not be separated

 

7.       OVERLOADED CHARGES

·       A charge is said to be overloaded when multifarious counts are brought against an accused person involving different aspects of the criminal law (Kinyanjui v Republic)

·       The test to be applied in determining whether a charge is overloaded is whether the counts preferred against the accused prejudice or embarrass him in the presentation of his defence by their sheer numerosity

·       Where a person is charged with too many counts on the same charge sheet, the prosecution should elect the counts it prefers to deal with at a particular trial

 

CASE	HOLDING
Ochieng’ v Republic	The accused was charged with 44 counts of motley offences. He was acquitted of a few and convicted of the rest. At the High Court, where he first appealed, he was acquitted of two more counts and his conviction in respect of the rest affirmed. He appealed again. The Court of Appeal held that it was undesirable to charge the accused with so many offences on the same charge sheet, as it may occasion prejudice or embarrassment. It went on to state the there should be no more than twelve counts on the same charge
Ganzi & 2 Others v Republic	Where a person faces a number of capital charges in the same charge sheet, it is preferable to proceed with only one of the charges and leave the rest in abeyance, even if the charges appear inter-linked. When the prosecution decides to proceed with all the charges simultaneously, and a person is convicted of several capital charges, it is good practice to pass the sentence of death on one count only and leave the sentences in other charges in abeyance

 

7.1    ALTERNATIVE CHAGRES

·       S. 137(b)(i) CPC: Where an enactment constituting an offence states the offence to be the doing of or the omission to do any one of any different acts in the alternative, or the doing of or the omission to do any act in any one of any different capacities, or with any one of different intentions, or states any part of the offence in the alternative, the acts, omissions, capacities or intentions, or other matters stated in the alternative in the enactment, may be stated in the alternative in the count charging the offence

·       Where the exact acts or omissions with which an accused person is charged may constitute more than one offence, it is permissible, even advisable, that the offences be laid out in the alternative as opposed to consecutively or cumulatively

·       Where charges are preferred against an accused person in the alternative, a conviction should be entered on only one and no finding should be made on the alternative count (i.e. the judge/magistrate should not ‘acquit’ on the alternative charge, but should make ‘no finding’)

 

7.2    DESCRIPTION OF PROPERTY

·       The description of property in a charge or information must be in ordinary language, and must indicate with reasonable clarity the property referred to à a failure to describe the property is fatal to the charge and/or subsequent conviction

·       Once so described, it is unnecessary (except when required to describe the offence) to name the person to whom the property belongs or the value of the property

·       Where the property is vested in more than one person, it is sufficient to describe the property as owned by one of those persons by name with the others; and if the persons owning the property are a body of persons with a collective name, it shall be sufficient to use the collective name without naming any individual

 

7.3    DESCRIPTION OF PERSONS

·       The description or designation in a charge sheet of the accused person, or of another person to whom reference is made therein, must be reasonably sufficient to identify him

·       It is not necessary to state is correct name, abode, style, degree or occupation

·       If the name of the person is not known, if it is reasonably impracticable to get those details in the circumstances, he can

be referred to as a ‘person unknown’

 

7.4    DESCRIPTION OF DOCUMENT

·       Where it is necessary to refer to a document or instrument in a charge sheet, it must be described by any name or designation by which it is usually known, or by the purport thereof, without setting out a copy

 

7.5    STATEMENT OF INTENT

·       Where the statute creating an offence does not make intent an essential ingredient thereof, it is unnecessary to state intent to defraud, deceive, injure or such other intent in the charge

 

7.6    MODE OF CHARGING PREVIOUS CONVICTIONS

·       Where a previous conviction of an offence is charged in a charge sheet, it shall be charged at the end of the charge sheet by means of a statement that the accused person has been previously convicted of that offence at a certain time and place without setting out the particulars of that previous offence

 

7.7    GROSS SUM IN CASE OF STEALING

·       Where persons employed in the public service, clerks and servants, directors or officers of companies, as well as agents are charged with the offence of stealing, it shall suffice to specify the gross amount of the property in question and the dates between which it is alleged to have been stolen, without specifying particular times or exact dates

 

7.8    GENERAL RULE AS TO DESCRIPTION

·       It is sufficient to describe a place, time, thing, matter, act or omission to which it is necessary to refer in a charge or information in ordinary language, so as to indicate with reasonable clearness what is being described

8.       DEFECTIVE CHARGES

 

CPC PROVISION	WHAT IT STATES
S. 275(1)	Every objection to charge sheet by reason of a formal defect on the face thereof shall be taken immediately after the information has been read over to the accused person and not later
S. 137	Even then, once the rules for framing of charges have been observed, the charge or information should not be open to objection in respect of its form or contents. General rule à no objections are allowed in case of any defect in the form of charges
S. 90	The validity of proceedings undertaken in pursuance of a complaint or charge shall not be affected either by a defect in the complaint or charge or by the fact that a summons or warrant was issued without a complaint or charge. A defect in a charge does not lead to the quashing of an accused person’s conviction or order unless the defect has occasioned a failure of justice or has prejudiced the accused
S. 89(5)	It would appear, then, that as a general rule, objections to charges are more likely than not to fail unless they are based on the ground that the formal charge or information as framed does not disclose an offence so that the magistrate is invited not to admit the same

 

CASE	HOLDING
William Dubi Ikiwo v Republic	The appellant was charged with two offences under section 105 (b) of the Penal Code. The charge sheet read that he was charged with the offence of personating a police officer contrary to section 105 (d) of the Penal Code. The quoted provision deals with persons who falsely represent themselves to be employed in the public service, and assume to do any act or attend any place for the purpose of doing any act under the purported employment. The Court noted that the offence the accused was charged with did not exist. There was no amendment to the charge. Hence the Court held that the appellant had been tried and convicted for non - existent offence and proceeded to quash the conviction
Sigilai and Another v Republic	A court may not, on its own motion, decide that the omissions made in a charge sheet are remediable by taking judicial notice of the omitted matters

 

9.       AMENDMENT OF CHARGES

·       S. 214 CPC: where, at any stage of a trial before the close of the prosecution case, 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:

o   Either by way of amendment of the charge; or

o   By substitution or addition of a new charge

·       Where a charge is so altered, the court must call upon the accused person to plead to the altered charge

·       The accused has a right to demand that any or all the witnesses who had already testified be re-called and give their evidence afresh or be further cross-examined by him or his advocate, and the prosecution has the right to re-examine such witnesses on matters arising out of their further cross-examination

·       Any variance between the charge and the evidence adduced in support of it with respect to the time at which the alleged offence was committed is not material and the charge need not be amended for the variance if it is proved that the proceedings were in fact instituted within the time (if any) limited by law for the institution thereof

·       Where an alteration of a charge is made and there is a variance between the charge and the evidence, the court must, if it is of the opinion that the accused has been thereby misled or deceived, adjourn the trial for such period as reasonably necessary to afford the accused make full and proper preparation of his defence

 

10.    QUASHING CHARGES

·       Section 276 CPC: If a charge sheet does not state, and cannot by amendment 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 on a motion made in arrest of judgment

·       A written statement of every such motion must 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

·       It is an open question whether in view of its location in the Criminal Procedure Code and reference to being delivered to the Registrar, such a motion is available to the subordinate court or limited only to the High Court

CHAPTER 8: PLEAS

 

1.       TAKING A PLEA

·       ‘Arraignment’ – once an accused person has appeared/been brought to court under arrest, the next step is for him to be informed of and called upon to answer the criminal charged preferred against him

·       The charge is read over to him in open court with the statement of offence and the particulars of each count to which he is required to respond – this is taking a plea

·       In answer to a charge, an accused person may:

(i) Plead guilty;

(ii) Plead not guilty;

(iii) Say nothing – i.e. refuse to plead, assuming that he understands the proceedings;

(iv) Plead:

• Autrefois acquit;
• Autrefois convict
•  Pardon 

NB: Where the accused takes any of these 3 pleas, the court must conduct a voir dire à if the court holds that the evidence adduced in support of the plea does not sustain it, or if it finds that the plea is false, the accused will be required to plead to the charge.

(v) Say that the court has no jurisdiction over him; or

(vi) Plead guilty subject to a plea agreement



2.    RECORDING OF PLEAS

(i)            The substance of the charge must be stated to the accused person by the court, and he must be asked whether he admits or denies the truth of the charge

o   The charge must be explained and interpreted to the accused person

o   It is a fatal omission not to explain to the accused person all the ingredients of a charge (Chargo v Republic)

o   Save for simple and straight forward charges, it is not appropriate for the magistrate to delegate this duty to the Court Clerk

(ii)            Where the accused does not understand the language of the court, it is mandatory that an interpreted be availed to translate the charge and the proceedings for the benefit of the accused and the court

o   Such interpreter should first be sworn to faithfully and accurately discharge the task

o   A plea taken through an unofficial, unsworn interpreted cannot be regarded as unequivocal (Republic v Abdi Ali)

(iii)             The accused person should plead personally and not through his advocate (Ganji v Republic)

o   It is only in situations where a statute allows an advocate to plead on his client’s behalf, such as in cases involving minor traffic infractions, that this rule is qualified

(iv)             The plea should be recorded as nearly as possible in the accused person’s own words (Wamithandi v Republic)

(v)            It is desirable that, in addition to every constituent of the charge being explain to the accused, he should be required to admit or deny every constituent part thereof and what he says should be recorded in a form that would satisfy an appeal court that he fully understood the charge and pleaded guilty to every element of it unequivocally

 

3.       RECORDING A PLEA OF GUILTY

·       Whereas there is no reason why a court should not accept a plea of guilty from an accused person, the consequences of it (i.e. the fact that the accuse forfeits his right to a trial where he can confront his accusers and challenge the evidence) counsels caution and circumspection in the manner in which such pleas are taken

·       Adan v Republic set out the safeguards that must be borne in mind when recording a plea of guilty:

(i)            The person pleading guilty must fully understand the offence with which he is charged à the court record must reflect that the substance of the charge and every element/ingredient constituting the offence has been read to the accused in a language he understands, and out of his own free will he admitted the charge

(ii)            Where the offence is one punishable by death, the court record must show that the person pleading guilty understands the consequences of his plea;

(iii)            The prosecution should immediately state the facts after the plea is taken, and the accused should be given an opportunity to dispute or explain the facts or to add any relevant facts;

(iv)            If the accused does not agree with the facts or raises any question of his guilt, his reply must be recorded and a change of plea entered; and

(v)            If there is no change of plea, a conviction should be recorded and a statement of the facts relevant to the sentence

as well as the accused’s reply should be recorded

 

CASE	HOLDING
Republic v B.M. Patel	The Court said that it is not desirable that a plea of guilty should be accepted where the plea contains no other word than “Guilty” in cases where the accused may not have understood exactly the ingredients of the charge.
Njuki v Republic	The High Court stated: “It has been said time and again that the pleas recorded in the words such as ‘I admit’, ‘I accept it’, ‘I plead guilty’, ‘It is true’, ‘I am guilty’ and so on cannot be considered as unequivocal pleas”
Olel v republic	The High Court stated that if a plea of guilty is not voluntary or is obtained by force or threats or torture or even deception, it cannot be said to be unequivocal. It would, in these circumstances be a nullity. The plea must be free and voluntary. It is inappropriate for the judge or magistrate to advise an accused person as to whether to plead guilty or not guilty. His function is only to explain the charge and make sure the accused understands it
Boit v Republic	The Court stated that there is no law in Kenya which would prevent a person charged with an offence punishable by death from pleading guilty to such a charge. That being so, the Courts have always been concerned that before a plea of guilty to such a charge is accepted and acted upon, certain vital safeguards must be complied with and it must appear on the record of the Court taking the plea that those safeguards have been strictly complied with. These safeguards are: 1.       As with all other offences, the person pleading guilty must fully understand the offence with which he is charged as provided for under the Constitution. The person should be told in detail and in a language familiar to him the substance of the offence; the elements or ingredients which constitute it, the date and the approximate time on which the offence was committed and the person against whom the offence was committed. 2.       Where the offence is one punishable by death, the Court recording the plea must show in its record that the person pleading guilty understands that as a consequence of his plea he will face a sentence of death. If an accused person is fully informed of all these matters, and in particular is cautioned that by pleading guilty he forfeits the right to a trial and that the offence attracts a mandatory penalty of death but has nevertheless chosen to plead guilty, then there cannot be any genuine complaint thereafter

 

 

·       A charge and all its essential ingredients must be explained to the accused in his vernacular or some other language that he understands, and the accused person’s own words in reply should be correctly translated into English and then carefully recorded

·       Where a plea of guilty is entered on behalf of an accused person who is represented during the proceedings, both the trial and the appellate courts will more readily presume that the said plea was voluntary, unequivocal and well advised (Nyachuma v Republic)

·       Once an accused person pleads guilty, the prosecutor is required to state the facts upon which the charge is based – it is not enough for the prosecutor to state ‘facts as per charge sheet’, the statement of facts must be explained to the accused (Ombena V Republic)

·       Similarly, the use of short cuts and abbreviations in the recording of proceedings, and in particular in recording of the words spoken, is unacceptable (Catherine Nkerote v Republic)

·       Even where an accused person accepts the facts stated by the prosecution as true, the court is under a duty to satisfy itself that such admission amounts to an unequivocal admission of the offence charged

·       The court should also be satisfied that the accused wishes to admit, without any qualification, each and every ingredient of the offence charged – if so satisfied, the court is to record that the accused has been convicted on his or her own plea of guilty

 

NO APPEAL ON A PLEA OF GUILTY

·       Section 348 & 379(3) CPC: the general rule is that no appeal is allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea, except as to the extent or legality of his sentence

·       However, in Ndede v Republic the court said that it has inherent and/or residual powers to entertain appeals against guilty pleas where the proceedings are found to be a nullity:

(i)            Because a plea of guilty has been entered as a result of undue pressure;

(ii)            Where there was doubt as to whether the accused has complete freedom of choice whether to plead guilty or not guilty;

(iii)            Where there has not been a free plea because the plea has been made under threats or pressure from the court; or

(iv)            Where an accused has pleaded guilty to an offence that does not, in fact exist or the facts do not disclose any offence

·       The court went on to state that where, at the time of taking the plea, there appears to be an unusual circumstance, e.g. injury to the accused, or the accused is confused, or there has been inordinate delay in bringing the accused to court from the date of arrest, then an explanation as to the circumstance must form an integral part of the facts to be stated by the prosecution to the court

·       After a plea of guilty has been entered and the accused has been convicted on his own plea, the court will pass sentence or make an order as against him

·       Before doing so, however, the court may permit (or require) the complainant to give an outline found in the charges. The prosecution, in giving the said outline, is under a duty not to embellish or exaggerate it

 

3.2    PLEA OF GUILTY IN THE ABSENCE OF THE ACCUSED

·       Article 50(2), Constitution: the trial of an accused person should take place in his presence

·       In some minor offences, the personal attendance of the accused may be dispensed with

·       If the offence involved is not a felony and is punishable only by a fine or imprisonment not exceeding a period of three months, or both, the court may dispense with the personal attendance of the accused if he pleads guilty in writing or if he appears by advocate

 

CASE	HOLDING
Narotthands      Vithlam      v Republic	The Court held that a trial held, even partly, in the absence of the accused person is a nullity. However, if the accused conducts himself in such a way as to render continuation of the trial in his or her presence impossible, such accused person may be removed from Court and the trial may proceed in his or her absence

 

Manager,     Tank                     Building Contractors v Republic

The court said that before the advocate can plead guilty for the client, the issue of the appearance of the accused should be dispensed with first

 

4.       RECORDING A PLEA OF NOT GUILTY

·       The court enters a plea of ‘not guilty’ where:

(i)            The accused does not admit to the charge;

(ii)            The accused does not admit the statement of facts; or

(iii)            The accused refuses to plead

·       If an accused person does not admit the truth of the charge, the court proceeds to hear the complainant, his witnesses and other evidence (if any)

·       The accused person or his advocate may put questions to each witness produced against him

·       Where an accused person in an answer to a charge at his arraignment makes an inculpatory statement even as he pleads not guilty, such a statement should not be used against him when the court considers the case

 

5.       REFUSAL TO TAKE PLEA

5.1    IN THE HIGH COURT

·       If an accused person, when arraigned, stands mute out of malice, or neither will nor by reason of infirmity can, answer directly to the information, the court may order the Registrar or other officer of the court to enter a plea of ‘not guilty’ on behalf of the accused person

·       A plea so entered has the same force and effect as it the accused person had actually pleaded it

·       The Court may also proceed to try whether the accused person is of sound or unsound mind, and, if he is found of sound mind, it proceeds with the trial. If he is found of unsound mind, and consequently incapable of making his defence, the Court shall order the trial to be postponed and the accused person to be kept meanwhile in safe custody in such place and manner as the Court thinks fit, and shall report the case for the order of the President

 

5.2    IN SUBORDINATE COURTS

·       If the accused person refuses to plead, the court shall order a plea of ‘not guilty’ to be entered for him

 

CASE				HOLDING
Wachira Republic	and	Others	v	When charged, the accused person refused to plead. He proceeded to create an uproar in Court raising doubts as to his sanity. After medical examination, a psychiatrist gave evidence that the accused person was mentally normal and was merely simulating disease of the mind. The accused continued to cause disturbance such that it was not possible for the trial to be conducted in his presence. A plea of not guilty was entered, the accused was removed and most of the trial took place in his absence. The Court of Appeal held that the course adopted by the trial court was strictly correct

 

6.       PLEAS OF SEVERAL ACCUSED

·       Where there are two or more accused persons, each accused person pleads separately to the charge or charges

·       The plea of each accused person should be recorded separately and as far as possible exactly in his or her own words

·       It is a matter of discretion whether or not the magistrate convicts the person who pleads guilty before hearing the case of the others who pleaded not guilty

 

CASE	HOLDING
Karuma Bukenya v Republic	The court said that where an accused pleads guilty, an he is convicted, it is desirable that he be sentenced before the court proceeds with the trial of his co-accused and calling him as a witness. There can be no suspicion that his evidence is coloured by the fact that he hopes to get a lighter sentence
Republic v Payne	This is the English position à where there are two or more accused persons and one of them pleads guilty, he should not be sentenced until the trial of the others is concluded, when the

 

position of the accused person can be considered and their relative degrees of guilt assessed for the purpose of sentence

 

7.       PLEAS TO SEVERAL CHARGES AGAINST AN ACCUSED

·       Where the accused is charged with more than one count, the court should record a plea on each count separately

·       The same is to ensure that if there is a plea of guilty, it is unequivocal

 

8.       PLEAS OF AUTREFOIS ACQUIT AND AUTREFOIS CONVICT

·       A person who has been tried by a court of competent jurisdiction for an offence and convicted or acquitted of that offence, while the conviction or acquittal has not been reversed or set aside, is not liable to be tried again on the same facts for the same offence

·       However, such convicted or acquitted person may afterwards be tried for another offence:

(i)            With which he might have been charged on the former trial under S. 135 CPC – such offence, whether a felony or a misdemeanour, is one which might have been charged together in the former charge sheet having been founded on the same facts, or formed/was part of the same serious of offences of the same/similar character;

(ii)            Causing consequences which constitute a different offence from that for which he was convicted or acquitted. Such a person may afterwards be tried for the last-mentioned offence, if the consequences had not happened or were not known to the court to have happened at the time when he was acquitted or convicted; or

(iii)            Constituted by the same acts which he may have committed, if the court by which he was first tried was not competent to try the offence with which he is subsequently charged

 

8.1            PLEA OF AUTREFOIS ACQUIT

·       It is a fundamental principle of law that a man may not be put twice in jeopardy for the same offence

·       ‘Autrefois acquit’ means that if a man has been tried and found not guilty of an offence by a court competent to try him, the acquittal is a bar to a second charge for the same offence

 

CONDITIONAL DISCHARGE	Prosecution requests that the charge be withdrawn at any time before the accused is called upon to make his defence, and the magistrate discharges him	Such a discharge does not operate as a bar to subsequent proceedings and he may not plead autrefois acquit
ABSOLUTE DISCHARGE	The magistrate finds the accused person guilty and considers that the case is such that he wishes to award nu punishment and discharges the accused person merely by cautioning him	The discharge is absolute and the accused may pleas autrefois convict to a subsequent charge on the same facts

 

8.2            PLEA OF AUTREFOIS CONVICT

·       The rule against double jeopardy applies with equal, if not more, force to convictions

·       The test is not whether the facts relied upon in the two trials are the same, but whether the accused has been convicted of an offence which is the same as that with which he is subsequently charged

·       A person convicted or acquitted of an offence constituted by any acts may, notwithstanding the conviction or acquittal, be subsequently charged with and tried for another offence constituted by the same acts if the court by which he was first tried was not competent to try the offence with which he is subsequently charged

 

CASE

HOLDING

Republic v Thomas

The accused was convicted of wounding his wife with intent to murder her and sentenced to seven years’ imprisonment. Within a year and a day, the wife died of the wounding. The Court of Criminal Appeal held that although the accused had been convicted and sentenced for the wounding, he could properly be tried for the murder and could not plead autrefois convict. This is the very principle that underlies section 140 of the Criminal Procedure Code, under which supervening consequences or those not known at the time of the former trial are excluded from the operation of double jeopardy

9.       PROCEDURE IN CASE OF PREVIOUS CONVICTION

·       Where a charge sheet contains a count charging an accused person with having been previously convicted for an offence, the procedure is as follows:

(i)            The part of the charge sheet stating the previous conviction shall not be read out in court, nor shall the accused be asked whether he has been previously convicted as alleged in the charge sheet, unless and until he has either pleaded guilty to or been convicted of the subsequent offence;

(ii)            If he pleads guilty to or is convicted of the subsequent offence, he shall then be asked whether he has been previously convicted as alleged in the charge sheet;

(iii)            If he answers that he has been so previously convicted, the judge may proceed to sentence him accordingly

à but if he denies that he has been convicted as such, or refuses to answer the question, the court shall then hear evidence concerning the previous conviction

·       In addition, if upon the trial of a person for a subsequent office that person gives evidence of his own good character, the prosecutor – in answer thereto – may give evidence of the conviction of that person for the previous offence or offences before a verdict of guilty is returned

 

10.    OBJECTION TO JURISDICTION

·       An objection to the jurisdiction of the court can be taken as a preliminary point

·       Objections to the jurisdiction of the court ought to be raised at the earliest point because jurisdiction is the foundation on which the validity of the proceedings is based

 

CASE

HOLDING

Mukisa                 Biscuit                 v Western Distributors

‘A preliminary objection constitutes a pure point of law which has been pleaded or which arises by clear implication out of the pleadings, and which if argued as a preliminary point, may dispose of the suit … A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law, which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or what is sought is the exercise of judicial discretion’

 

11.    CHANGE OF PLEA

·       The court has discretion at any time to allow, before sentence, an alteration of pleas (Republic v Mwangi s/o Kamuhi)

·       This power is discretionary and it is not necessarily a wrong exercise of discretion for a magistrate to refuse to allow an

accused person to change his plea from ‘guilty’ to ‘not guilty’ just before the magistrate is about to pass sentence

·       The accused person may also change his plea from ‘not guilty’ to ‘guilty’ for a lesser cognate offence

 

CASE	HOLDING
Kioko v Republic	An accused person may apply to change plea after the prosecution has opened its case and at any time before sentencing; and that it was within the discretion of the Court, taking into account the demands of justice, to decide whether to allow or disallow the application
Chacha v Republic	If, after pleading guilty to a charge, discussion follows and the accused is intending for any reason to amend his plea, the charge should be read to him afresh whereupon his new plea shall be recorded
Kamundi v Republic	It was initially held that once an accused person entered a plea of guilty, the plea could not be changed because the court became functus officio à however, the Court of Appeal in this case held that a magistrate has discretion to allow a change of plea before passing sentence or making an order finally disposing of the case

 

12.    RETRACTION OF PLEAS

·       Republic v Fulabhai Patel and Another: the court said that once sentence has been passed upon an accused person who has unequivocally pleaded guilty to a charge, he cannot be allowed to retract that plea (unless he pleaded guilty to a charge which in fact disclosed no offence)

13.    PLEA BARGAINING

 

CASE

HOLDING

R v Turner

Guidelines on Plea Bargaining: 1.       It may sometimes be the duty of counsel to give strong advice to the accused that a plea of guilty with remorse is a mitigating factor which might enable the Court to give a lesser sentence; 2.       The accused must ultimately make up his mind as to how to plead; 3.       There should be open access to the trial judge and counsel for both sides should attend each meeting, preferably in open Court; and 4.       The judge should never indicate the sentence which he is minded to impose, nor should he ever indicate that on a plea of guilty he would impose one sentence, but that on a conviction following a plea of not guilty he would impose a severer sentence

 

·       The judge can say what sentence he would impose on a plea of guilty without mentioning what he would do if the accused were convicted after pleading not guilty

·       In a properly functioning system, plea bargaining constitutes mutuality of benefits in that it guarantees the interests of the state in ensuring that offenders are punished while also according the accused an opportunity to bargain for some leniency

·       S. 137 CPC: in Kenya, a prosecutor and accused person/his representative may enter into an agreement in respect of:

(i)            Reduction of a charge to a lesser offence; or

(ii)            Withdrawal of the charge or a stay of other charges or the promise not to proceed with other possible charges

·       An offer for a plea agreement may be initiated by either of the two parties, and the court needs to be notified of the intention to negotiate a plea agreement (though the court must not participate, so as to preserve impartiality)

·       A plea agreement is entered into after an accused is charged, but before judgment

·       Where a prosecution is undertaken privately, no plea agreement can validly be entered into without the written consent of the Attorney General (in deference to his over-arching powers of control over all criminal proceedings)

·       A plea agreement on behalf of the Republic is entered into by the AG, the DPP or other officers authorised by the AG, as well as by any other person authorised by written law to prosecute

·       A prosecutor can only enter into a plea agreement:

(i)            After consultation with the police officer investigating the case;

(ii)            With due regard to the nature of and circumstances relating to the offence, the personal circumstances of the accused person and the interests of the community; and

(iii)            After affording the victim/his personal representative the opportunity to make representations to him regarding the contents of the agreement

·       A plea agreement must:

(i)            Be in writing and accepted by the accused person, or explain to him in a language he understands;

(ii)            If the accused has negotiated with the prosecutor through an interpreter, contain a certificate by the interpreter to the effect that the interpreter is proficient in that language and that he interpreted accurately during the negotiations in respect of the contents of the agreement;

(iii)            State fully:

§  The terms of the agreement;

§  Substantial facts of the matter;

§  All other relevant facts of the case and any admissions made by the accused person

(iv)            Be signed by the accused person or his legal representative

(v)            Be signed by the complainant if a compensation order has been included in the agreement

 

13.  1 RECORDING OF PLEA AGREEMENT BY COURT

·       Before the court records a plea agreement, the accused person is placed under oath and the court addresses him personally in court

·       He is informed of, and the court determines that he understands:

o   The right to –

§  Plead not guilty, or having already so pleaded, to persist in that plea;

§  Be presumed innocent until proved guilty;

§  Remain silent and not to testify during the proceedings;

§  Not be compelled to give self-incriminating evidence;

§  A full trial;

§  Be represented by a legal representative of his own choice, and where necessary, have the Court appoint a legal representative;

§  Examine in person, or by his legal representative, the witnesses called by the prosecution before the Court and to obtain the attendance and carry out the examination of witnesses to testify on his behalf before the Court on the same conditions as those applying to witnesses called by the prosecution;

o   That by accepting the plea agreement, he is waiving his right to a full trial;

o   The nature of the charge he is pleading to;

o   Any maximum possible penalty, including imprisonment, fine, community service order, probation or conditional or unconditional discharge;

o   Any mandatory minimum penalty;

o   Any applicable forfeiture;

o   The Court’s authority to order compensation, restitution, or both;

o That by entering into a plea agreement, he is waiving the right to appeal except as to the extent or legality of sentence; and

o   The prosecution’s right, in the case of prosecution for perjury or false statement, to use against the accused any statement that the accused gives in the agreement

·       The prosecutor must lay before the court the factual basis of a plea agreement and the court must determine and be satisfied that there exists a factual basis for the plea agreement

·       i.e. the court is not bound to accept any and all plea agreements negotiated by the parties

 

13.  2   REJECTION OF PLEA AGREEMENT

·       Where the court rejects a plea agreement:

(i)            It must record the reasons for such rejection and inform the parties accordingly;

(ii)            The plea agreement becomes null and void and no party is bound by its terms;

(iii)            The proceedings giving rise to the plea agreement become inadmissible in a subsequent trial or any future trial relating to the same facts; and

(iv)            A plea of not guilty is entered accordingly

·       S. 137J CPC: upon rejection of a plea agreement, there must not be any further plea negotiations in a trial relating to the same facts

·       Where a court rejects a plea agreement, no party can appeal against or apply for a review of the order

 

14.    WITHDRAWAL OF PLEA

·       An accused person may withdraw a plea of guilty pursuant to a plea agreement:

o   Prior to acceptance of the plea by the court, for any reason; or

o   After the court accepts and convicts on the plea, but before it passes a sentence, if the accused person can demonstrate a fair and just reason for requesting the withdrawal (to the satisfaction of the court)

CHAPTER 9: BAIL AND BOND

 

1.       DEFINITION

·       Bail is the release from custody, pending a criminal trial, of an accused person on the promise that the money will be paid if he absconds

·       To refuse bail to an accused person might involve depriving someone of liberty who is subsequently not found guilty or, even if convicted, is given a non-custodial sentence. On the other hand, to allow liberty to an accused person pending trial might be to allow him to abscond, interfere with witnesses, tamper with evidence, commit more crimes, or engage in other conduct prejudicial to the cause of justice

·       Thus, the object of bail is to ensure that the accused person will attend his trial without being detained in prison on remand

·       There is a general presumption in favour of bail, which can be overturned if one or more indices of suspicion exist

·       Even where bail is granted, it may be subject to certain conditions to promote public safety and the interests of justice

 

2.       BAILABLE AND NON-BAILABLE OFFENCES

·       The question of bail is often a very emotive one, especially where the persons seeking or obtaining it are facing charges which the community feels strongly about

·      

·

E.g. where a person is charged with violent or destabilising offences, he becomes the subject of great social revulsion or even violence, and public opinion is overwhelmingly weighted against his being allowed to walk in society freely

·       In the case of Margaret Magiri Ngui v Republic: the could held that bail, as a general rule, should not be granted where the offence charged carries a mandatory death penalty, because the temptation to abscond in such cases is very high (it was noted that this is the practice in England and Wales) à However, note that this was under the repealed constitution

·       Under the repealed constitution, read together with the CPC, bail may be denied for offences such as:

(i)            Murder

(ii)            Treason                                                         As under S. 72(5) repealed constitution

(iii)            Robbery with violence

(iv)            Attempted robbery with violence

·       Article 49(1)(h), Constitution 2010 states that a person who has been arrested has the right to be released on bail or bind pending charge or trial. The terms of the bond or bail are to be reasonable without classification or distinction between bailable and non-bailable offences

 

CASE

HOLDING

Republic v Taiko Kitende Muinya

The accused, who was charged with murder, applied to be admitted to bail. The High Court stated that under the Constitution and as of 27 August 2010, there was no longer a category of offences characterized as non- bailable, but went on to say that the right of an accused person to be released on bail, although a constitutional right, was not absolute and: ‘the court may decline to release him in appropriate cases and the appropriateness or otherwise is no longer pre-determined by statute, as was the case before the promulgation of the new constitution, when all persons charged with offences attracting death sentences could not be granted bail or bond pending trial’.   The judge in this case set out 4 reasons which he considered compelling enough to refuse bail: i.             Seriousness of the offence and gravity of the sentence (which may incline the accused to abscond); ii.            The relationship between the accused and potential witnesses (his influence over whom might cause him to interfere with them); and iii.             His antecedents or prior conduct

·       On proper analysis and its own textual command, the Constitution does not grant an unqualified right to bail – it permits judges to exercise denial discretion where compelling reasons are extant

·       In essence therefore, the right to be released on bond or bail is not automatic except if the offence with which an accused person is charged is punishable only be a fine or by imprisonment for no more than 6 months

·       In Republic v John Kahindi Karisa & 2 Others, the court held that each case of bail is to be determined on its own facts and circumstances, and further that he right to bail is not absolute à in this case, Ibrahim J (as he then was) said that ‘an accused person should make some effort and show or give the court some reasons to dispel the apprehension that he would abscond. The present accused persons have not told the court the following:

a)       What they do for a living, i.e. occupation;

b)       Their marital status;

c)        Whether they have children;

d)       Whether they are Kenyan citizens or not;

e)       Any references from their Church, Mosque, Temple or Synagogue; and

f)        Any leadership or other position in society which makes them dependable’

·       It is therefore safe to assume that the grant of bail in capital cases, given all the factors and considerations to be borne in mind when considering bail applications, is a rare feature in our criminal justice system and is unlikely to become common

·       Moreover, accused persons arrested and arraigned in court are under suspicion to have trampled on the rights of other persons, which provides justification for the temporary curtailment of their right to liberty

·       Bail may be granted to an accused person conditionally or unconditionally, and it may be applied for at any time during the proceedings

·       Moreover, the application may be made many times

·       Bail is intended to allow the accused to lead their normal lives outside while waiting for the trial of their case

·       The High Court has power to grant bail where the subordinate court has refused it, and may reduce the amount required or imposed by such court or police officer

·       Such bail is fixed with due regard to the circumstances of each case and should not be excessive or it would defeat the purpose of the bail itself

 

CASE	HOLDING
Patrick Irungu Maina v Republic	The accused had been admitted by a magistrate’s court to a bail of Ksh.150 000 for the offence of obtaining money by false pretence, which attracted a maximum penalty of three years imprisonment. The High Court found that the imposed Kshs. 150 000/= was excessive considering that the total amount alleged to have been obtained by the applicant was Kshs. 98 000/=
Republic v Jamal Din	Withholding bail by the court is wrong – when an accused person appears in court for his hearing, he is entitled to have his bail money returned to him

 

3.       THE NATURE OF BAIL

(i)            The refusal for bail is not a punishment and must never be used as such. This is particularly important to remember when granting or refusing bail prior to verdict or finding of guilt

(ii)            Prior to conviction, prima facie an accused person is entitled to bail, especially before trial, unless there is some reason to believe that he might run away, get at the witness or commit further offences

(iii)           

In granting or refusing bail, you are bound to come to a decision on probabilities. To deprive a man liberty pending trial or even pending sentence is to deprive a certain number of persons of liberty who are going to be acquitted, or upon whom no custodial sentence is going to be passed

4.       CLASSIFICATION OF BAIL

4.1       BAIL PENDING TRIAL

·       Bail pending trial may be granted:

o   By the police at the police station; or

o   By a magistrate in court

 

(i)             Bail from the Police Station

 

CPC PROVISION	WHAT IT STATES
S. 36	If a person arrested is not released on bail, he must be brought to court without delay
S. 37	The officer in charge of the station is required to make apprehension reports to the magistrate. Officers in charge of police stations must report to the nearest magistrate the cases of all persons arrested without warrant within the limits of their respective stations, whether or not those persons have been admitted to bail or not
S. 123	A person who is arrested and is at the police station for a non-capital offence, and is ready to give bail, may be admitted to bail

 

·       The release may be upon the person arrested executing a bond of reasonable amount, with or without sureties, to appear at a specific time and in a specific court

·       If a person is arrested on a warrant, the warrant states whether he is to be held in custody or released on bail. But if the individual is arrested without a warrant, the police have to decide whether or not to release the suspect after they have charged him

·       The police officer must determine whether the detention is necessary to secure or preserve evidence relating to an offence for which he is under arrest or to obtain such evidence by questioning him

 

CASE	HOLDING
Hussen v Republic	The Court said that the officer in charge of a Police Station is required to inquire into the case before he exercises his discretion to release the person on bail. He may release the accused if in his opinion there is insufficient evidence to proceed with the charge

 

(ii)            Bail decisions by Court

·       The presumption in favour of bail works solely to the grant of bail by a court post-charge and prior to conviction at all stages of the proceedings, and the presumption continues post-conviction where a court adjourns in preparation of post- sentencing reports

·       Under English law, where prosecution seeks to rebut the presumption by objecting to the accused person being granted bail, the court invited both the prosecution and defence to make submissions on the matter

·       Moreover, when the court adjourns a case, it has to decide whether the accused person should be released on bail or remanded in custody

 

CASE

HOLDING

George Ng’ang’a v Republic

Principles that the court should consider when granting bail: a)       That in view of the presumption of innocence, bail should generally be granted unless the prosecution shows substantial reasons that: i.             The accused will fail to turn up for trial or surrender to custody ii.            The accused will obstruct the cause of justice iii.            The accused will commit similar offences b)       The primary consideration is whether the accused is likely to enter into trial. So, the Court should consider: i.             The nature of the offence ii.            The severity of punishment iii.             The strength of the prosecution’s case iv.             Antecedent character of the accused

 

v.       Likelihood of interfering with witnesses c)        Each accused person’s application must be considered on its own: i.             Facts ii.            Circumstances iii.             Merits d)       The granting of bail to one accused and denial of the co-accused of bail is not discriminatory within the meaning of section 82 of the Constitution.   ‘Even without the constitutional provisions, generally in principle and because of the presumption that a person charged with a criminal offence is innocent until his guilty is proved, an accused person who has not been tried should be granted bail, unless it is shown by the prosecution that there are substantial grounds for believing that he will abscond’

 

·       There are situations where two or more accused persons approach the court for bail, yet the court may grant bail to some and refuse bail in respect of others. This must be so considering that the propensity to abscond is to be determined by individual circumstances and being charged with the same offence as others does not equalise those circumstances

·       Courts are traditionally slow to dismiss objects to bail that the prosecution raises in the event that the fears of the prosecution, e.g. of the accused taking flight, actually materialise

 

CASE	HOLDING
Republic v Danson Mgunya and Another	The Court held that if the prosecutor objects to the release of the accused person from detention pending trial, then at the first instance, the burden should be on the prosecution and not the accused person to prove or at least demonstrate the existence of compelling reasons which must be stated, described and explained

 

4.2    BAIL PENDING APPEAL

·       Unlike pre-trial bail, bail-pending-appeal does not exist as of right and is issued only in exceptional circumstances

·       In an application for bail pending appeal, the presumption of innocence in favour of the accused is no longer operative – the burden at this stage is that the accused was properly convicted and the burden is on him to show why he should get bail pending appeal

·       In addition, an application for bail pending appeal can only be made in respect of an offence which was originally bailable

·       S. 356(1) CPC: the High Court or the subordinate court that convicted or sentenced a person may grant bail or may stay execution of a sentence or order pending the entering of an appeal on such terms of surety as may seem reasonable to the High Court or subordinate court

·       The main consideration for bail pending appeal is that the applicant must show overwhelming chances of the appeal succeeding – if that be so, there will be no justification for depriving the applicant his freedom

 

CASE	HOLDING
Kivutha   Kibwana  (scholarly writing)	It must be remembered that a person has been convicted by a properly constituted Court, and is undergoing punishment because of that conviction which stands until it is set aside. It is not wise to intervene either from the point of view of the welfare of the appellant or the state, unless there is a real reason why the Court should hold that he should not be deprived of his liberty. The best test for that consideration is whether the appellant can show an overwhelming chance of establishing his right to be set at liberty. If he does not do so, the law should take its ordinary course
Abdi v Republic	An application for bail pending appeal is to be granted in rare and exceptional circumstances. To admit an applicant to bail is a discretion of the court which must be judiciously exercised keeping in sight all the facts relating to the application, all the matters material to the trial at the lower court, the grounds submitted in the petition and the chances of success. The time it would take for the appeal to be prosecuted and determined is by itself not a sufficient ground. However, such time which may, in effect, mean that a person may well have served his entire term before the appeal is heard, is a major consideration when coupled with a meritorious appeal with overwhelming chances of success since to deny bail would be tantamount to rendering the potentially successful appeal merely nugatory or illusory

 

Opondo v R	Where the accused has been sentenced to a term of imprisonment, for bail pending an appeal to be granted, there must be an overwhelming possibility of success of the appeal, so that there is no justification for the deprivation of the applicant’s liberty
Nathan                 Browne Birundu v Republic	Other secondary considerations include: the medical condition of the applicant, the nature of the offence, the sentence imposed & the likely delay in the preparation of the appeal record (and hearing of the same)

 

·       After the entering of an appeal by a person entitled to appeal, the High Court or subordinate court which passed a sentence/convicted the accused person, may order that he be released on bail with or without sureties

·       If he is not released on bail, the could may order that the execution of the sentence or order appealed against be suspended pending the hearing of the appeal

·       Where an application for bail is made to the subordinate court and refused, no further application for bail shall lie to the High Court, but a person so refused bail by a subordinate court may appeal against the refusal to the High Court

·       S. 356(2) CPC: If the person in whose favour bail or stay of execution is granted is ultimately liable to a sentence of imprisonment, the time during which the person has been released on bail, or during which the execution was stayed will not be considered during the computation of his sentence unless the High Court or the subordinate Court passing the sentence so orders

 

4.3    ANTICIPATORY BAIL

·       ‘Anticipatory bail’ is an order to admit a person to bail, issued before the person is arrested

·       It is bail in anticipation of arrest – i.e. any person who suspects that he is about to be arrested on false or trumped-up charges, due to personal or political enmity or vendetta with someone, or who fears that a false case is likely to be built up against him, may move to court for grant of bail in the event of his arrest and the court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail

·       Under the Constitution 2010, the right to anticipatory bail may be inferred from Article 22, which gives every person the right to institute court proceedings claiming that a right or fundamental freedom has been denied, violated or threatened

·       However, the granting of anticipatory bail does not give the person immunity from appearing before the police or any authority who would wish to question him in connection with the commission of a certain offence à he would still be required to report to the police and cooperate with the law enforcement agencies as they conduct investigations (but would simply be safe from arrest)

 

4.3.1      CONDITIONS IMPOSED BY COURT WHEN GRANTING ANTICIPATORY BAIL

·       When granting anticipatory bail, and in recognition that such bail is an unusual truncation of the investigatory process, the court may impose conditions in light of the facts of the particular case, including:

(i)            A condition that the person shall make himself available for interrogation by the police officer as and when required;

(ii)            A condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer; and

(iii)            A condition that the person shall not leave the jurisdiction without prior permission of the court

·       Anticipatory bail is not a blanket order

·       The applicant must show, by disclosing special facts and events, that he has reason to believe that he may be arrested for a bailable offence(s), so that the court may take care to specify the offence or offences in respect of which the order will be effective (i.e. it is not a blanket order covering all offences)

·       The applicant remains free on bail as long as the same is not cancelled

·       The court may direct that any person who has been released on bail be arrested and commit him to custody on an application moved by the complainant or prosecution

5.      

FACTORS TO BE CONSIDERED BEFORE BAIL IS GRANTED

 

 

5.1       LIKELIHOOD OF APPEARANCE AT TRIAL

·       This is the ‘mother factor’ – is the accused is not able to attend and take his trial, bail will subvert the administration of justice

·       Republic v Selwyn & 5 Others: the test to govern the discretion of the court in deciding whether to grant or refuse bail is the probability of the accused appearing to stand his trial. In applying the test, the court will not look to the character or behaviour of the accused at any particular time, but will be guided by the nature of the crime, severity of the punishment imposed therefore and the probability of a conviction

·       In determining whether the accused will turn up, his status and social connection must be considered

·       If he is a non-resident and he faces a serious charge, there is the chance that he will be tempted to flee à in such cases, the court may order the accused to bring sureties to court who will be ordered to forfeit the recognisance they promised the court in the event the accused absconds

 

5.2       LIKELIHOOD OF INTERFERENCE WITH INVESTIGATIONS & WITNESSES

·       This is especially where investigations are ongoing when the accused is presented in court, and particularly necessitated by the complex nature of some cases

·       The accused is denied bail where there is a real likelihood of him interfering with investigations by concealment, destruction or tampering with evidence

·       The court will also deny bail to an accused person who is in a position to interfere with witnesses, whether by violence or threats and intimidation (or even bribery and other forms of negative influence) à e.g. so that the witness does not turn up to testify, or subsequently alters their testimony

·       The relationship (if any) between the accused person and the witness is a prime factor to consider before awarding bail

 

5.3       NATURE OF THE OFFENCE ACCUSED IS CHARGED WITH

·       The more serious the offence the accused is charged with, the more likely it is that he will abscond and not attend trial, and therefore more likely that he will be denied bail

·       Watoro v Republic: the court held that the seriousness of the offence has a clear bearing which the court ought to bear in mind as being one of the factors influencing the mind of an accused when deciding whether it would be a good thing to skip the trial or not

·       To determine how serious the offence is, the courts look at the sentence provided at the end of the rope, i.e. the sentence that is likely to be meted out to the accused in the event of conviction

·       John Kahindi Karisa case: ‘murder is a serious offence and attracts the death penalty. Self-preservation is a natural reaction or response of any human being. Whatever the court will decide, the fear and anxiety exerting on an accused’s mind during the trial in a murder case cannot be ignored. The possibility of thinking of flight by an accused person facing capital offence is real and cannot be wished away’

 

5.4       LIKELIHOOD OF COMMISSION OF MORE OFFENCES

·       Where a person is on bail and is charged with another similar offence alleged to have been committed when on bail, the court may be entitled to refuse bail

 

5.5       SAFETY OR SECURITY OF THE ACCUSED

·       The accused person should not be granted bail if the court is satisfied that he should be kept in custody for his own protection – e.g. where he poses a danger to himself or is charged with an offence that excites considerable public revulsion

·       It is also in the best interests of a suspect to be denied bail and kept in safe custody if he is a child or a young person without a family

 

5.6       ACCUSED SERVING A CUSTODIAL SENTENCE

·       An accused person who is already serving a custodial sentence for another offence cannot expect to be granted bail in connection with new matters and should not expect success on a bail application in such circumstances

·       Once the prior custodial sentence is served, there is no bar to the making of an application for bail in the current case

 

5.7       BREACH OF BAIL TERMS

·       Where, having previously been released on bail in connection with the same offence, the accused person absconds or otherwise breaches or violates the terms and conditions upon which the bail was granted, he would not be eligible for bail

 

5.8       RELATIVE STRENGTH OF PROSECUTION CASE

·       If the trial court starts and it is of the opinion that the prosecution case is not very promising, it may use its discretion to grant bail to the accused

·       However, the court may also cancel bail if, during any stage of the trial, the risk of the accused absconding arises

 

5.9       PAUCITY OF INFORMATION

·       The accused may not be granted bail where the court is satisfied that it had not been practicable to obtain sufficient information to enable it to make a decision in relation to bail

·       E.g. where the police arrest a suspect but have insufficient details as to his identity and address, the court may refuse bail

 

5.10    CIRCUMSTANCES OUT OF WHICH CHARGE AROSE

·       The court is entitled to look at the totality of the circumstances out of which the charges facing the accused arose

·       Wainana v Republic: the High Court held that magistrates are entitled to take into account the circumstances out of which the charges arose and weigh them in deciding whether or not the applicant should be granted bail

 

5.11    DEPOSIT IN LIEU OF RECOGNISANCE

·       The court may require a person to execute a bond or deposit money or some property as a condition for his release

·       When such a person executes a bond, he essentially promises the court that he will appear in court when required (he may be required to make a deposit of money in addition to executing a bond)

·       When money is deposited by the accused person or by some other person on his behalf under these circumstances, it is referred to as ‘cash bail’

·       The court has power to issues a warrant of arrest directing that a person released on bail be brought before it, and may order that such person find sufficient sureties of the bail imposed in the first instance is found to have been insufficient due to mistake, fraud or some other reason

6.       SURETIES

·       S. 124 CPC: the court may require that the accused person provide a suitable surety or sureties before granting him bail

·       A surety is a person who promises to forfeit a sum of money fixed by the court and known as a recognisance if the accused person fails to attend court as and when required as directed

·       The amount of recognisance is determined by the court and should not be excessive – if the accused absconds, the surety is liable to forfeit all or part of his recognisance

·       The court conducts an examination of the sureties before admitting them as such à such persons would be needed to appear before court and give evidence on oath, confirming among other things, their financial resources, their character, including any previous convictions, and their relationship and proximity to the accused

·       Before the court finds that a proposed surety is suitable, it has to be satisfied that the surety understands his obligation to ensure that the accused attends court and that in default of such attendance, the surety may be liable to forfeit the property he deposits as security

 

6.1      DISCHARGE OF SURETIES

·       A failure to abide by any condition of bail can lead to an accused person’s arrest and reappearance before the Court that

granted him bail

·       A power of arrest is available where a police officer has reasonable grounds for believing that an accused person has broken or is about to break a condition of bail

·       Although the accused person does not commit a further offence by breaking a condition of his bail, the Court may decide that the accused person has had his chance and shall therefore be remanded in custody for the duration of the proceedings

·       A person may apply to the magistrate to discharge a surety or a surety may apply to be discharged from his duty due to suspicion of the accused person wanting to abscond or due to misunderstanding between the accused person and himself

à Indeed, a surety is free at any time to apply to be discharged for any reason or none at all, including for personal reasons, for instance, where he may wish to free the property deposited as security for his other purposes

 

6.2      FORFEITURE OF RECOGNISANCE

·       S. 131(1) CPC: where it is proved that an accused person has absconded, the court will issue a notice to any person bound by the recognisable to pay his penalty or to show cause why he should not pay

·       If sufficient cause is not shown and the penalty is not paid, the court may issue a warrant of attachment of sale of the moveable property belonging to the surety (or his estate, if he is dead)

·       If the penalty cannot be recovered by attachment of sale, the court will order the imprisonment of such surety for a term not exceeding six months

CHAPTER 10: THE TRIAL PROCESS

 

1.       APPEARANCE OF PARTIES

·       After an accused person appears in court in obedience so summons or under arrest and pleads not guilty to the charge, the stage is set for the court to hear the case with a view to determining or establishing whether the complaint against the accused is true

·       Where the complainant, having had notice of the time and place appointed for the hearing, does not appear, the court must acquit the accused (unless for some reason it thinks it proper to adjourn the hearing)

·       If the court adjourns the hearing, it may release the accused person on bail, remand him in prison, or take security for his appearance as it thinks fit

·       Since an acquittal under Section 202 CPC is a penal default mechanism leading to the dismissal of the prosecution case for non-appearance, it ought to be used sparingly

 

CASE

HOLDING

Attorney General v Shimanyula

Once a court decides to proceed with a matter on the hearing date, it cannot proceed to acquit an accused under section 202 of the Criminal Procedure Code because witnesses did not turn up. Rather, it must ask the prosecutor to tender evidence in support of the charge, and to proceed to acquit the accused for lack of evidence under section 210 of the Criminal Procedure Code, if he fails to tender any evidence in support of the charges. It is a jurisdictional question and it would follow that for a case that is already part-heard, with some prosecution witnesses having previously testified, the absence of a prosecutor and/or witnesses can only lead to a ruling on whether or not a case has been established under section 210 and never an acquittal, under section 202

 

2.       ADJOURNMENTS

 

CPC PROVISION	WHAT IT STATES
S. 205	The court may, before or during the hearing of a case, adjourn the hearing to a certain time and place (this is to the discretion of the court – any such time and place must be appointed and stated in the presence and hearing of any party or parties or their respective advocates
S. 205(1)	Such adjournment must not be for more than 30 days, or, if the accused has been committed to prison, no more than 15 clear days o    However, the practice which has emerged in the case of a remanded accused is for the case to be mentioned in court every fortnight o    The purpose of the mention is to enable the court to keep track of the case and to see the accused person o    The mention also affords accused persons an opportunity to air any grievances and for the court to make necessary orders o    However, mentions appear to be of doubtful utility in cases other than where the accused is in remand – i.e. with so many cases being mentioned, the court rooms, corridors and registries are already full and this results in a waste of time
S. 206(2)	Should the court proceed and convict the accused person in his absence, it may set aside the conviction upon being satisfied that his absence was from causes over which he had no control
S. 206(4)	The accused person who has not appeared is charged with a felony, or if the court refrains from convicting the accused in his absence, the court must issue a warrant for the apprehension of the accused person and cause him to be brought before the court

 

·       In case of an adjournment, the court may allow the accused person to go at large, commit him to prison, or release him upon his entering into a recognisance (with or without sureties)

·       The right to adjournment is available to both the prosecution and the defence. For the defence, the legal basis for adjourning the proceedings is the constitution, which guarantees the accused ‘adequate time and facilities for the preparation of his defence’

·       Neither the prosecution nor the defence is entitled to indefinite adjournments as this would undermine the right to trial within a reasonable time and would be contrary to the public interest need for an end to litigation

·       Where a case has been adjourned to a date agreed upon between the parties, the hearing date ought not to be altered without the involvement and consent of all parties (Ruhi v Republic [1985])

·       If the accused person does not appear before the court which made the order of adjournment, the court may, unless the accused person is charged with a felony, proceed with the hearing or further hearing as if the accused were present  

o   It is, however, rare for the court to proceed with a hearing in the absence of the accused person

o   Ordinarily the court issues a production order for an accused who is in remand, or a warrant against an accused who is out on bond (and also calls upon his surety, if any), to produce him in court

o   It is only once all the above methods of reaching the accused are exhausted that the court embarks on a default hearing of the matter  

·       Similarly, hardly would a court dismiss a case and acquit an accused person on account of the complaina nt’s absence, unless the same appears to be deliberate and repeated – the court would first give the prosecution and investigator sufficient opportunity to seek and produce the complainant  

·       A proper reading of both S. 205(1) and 206(1) CPC reveals that the court, in adjourning a hearing, is at perfect liberty to appoint a place, other than a court house, for hearing – hence deliberate use of the expression ‘a certain time and place’

 

3.       CASE FOR THE PROSECUTION

·       S. 300 CPC: when both parties are present and the trial commences, the prosecutor opens the case against the accused person before proceeding to call witnesses and adduce evidence in support of the charge

·       The prosecution starts because it bears the onus of proof

·       The opening takes the form of a brief address by the prosecutor in which he provides an outline of and guide to the case, as well as presents a summary of the facts and theory of the prosecution case à the summary helps clarify matters for the benefit of all parties

·       After the opening address, the prosecution calls each witness sequentially – usually beginning with the complainant and concluding with the Investigating Officer (the prosecutor determines the order of witnesses)

·       Each witness called is first sword or affirmed, and then led in testimony by the prosecutor, after which the witness is subject to cross-examination by the accused person or his advocate, and is finally re-examined by the prosecutor

 

4.       MODE OF TAKING AND RECORDING EVIDENCE

 

CPC PROVISION	WHAT IT STATES
S. 197(1)	The evidence of each witness is taken down in writing or on a typewriter in the language of the Court by the magistrate or in his presence and hearing and under his personal direction and superintendence. It must be signed by the magistrate and it forms part of the record. Such evidence is taken down in narrative form, but the magistrate may take down or cause to be taken down any particular question and answer
S. 197(2)	Notwithstanding the long-hand requirement, a record of any proceedings at a trial or before a magistrate may be taken in shorthand if the magistrate so directs and a transcript of the same shall be made and form part of the record, if the magistrate so orders
S. 197(3) + 198(4)	A witness has a right to ask that his evidence be read over to him and the magistrate must cause that evidence to be read over to him in a language which he understands, and not merely in the language of the court, which is strictly English for the High Court and either English or Swahili for the subordinate courts
S. 198(1)	Whenever any evidence is given in a language not understood by the accused, and he is present in person, it must be interpreted to him in open Court in a language which he understands
S. 198(3)	When documents are put in for the purpose of formal proof, it is in the discretion of the Court to interpret as much of them as appears necessary
S. 199	When a magistrate has recorded the evidence of a witness, he may also record such remarks as he thinks material respecting the demeanour of such witness whilst under examination

 

·       It is not necessary for the prosecution to call a multiplicity of witnesses, some of whom may be cumulative and repetitive

·       It is sufficient to call such number as are sufficient to prove its case

·       Where, however, the prosecution fails to call a material witness without an apparent reason, the court is entitled to presume or infer that the evidence which that witness would have given would be unfavourable or adverse to that party

 

5.       CLOSE OF THE PROSECUTION CASE

·       Once the prosecution has called all the witnesses and tendered all the evidence it intended to, it closes its case, whereupon the court has to determine whether a prima facie case has been established

 

CASE	HOLDING
Ramanlal Bhatt v Republic	A prima facie case is one on which a reasonable tribunal, properly directing its mind to the law and the evidence would convict if no explanation is given by the defence

 

·       Where the prosecution closes its case early (e.g. due to refusal of an adjournment to call further witnesses), it is desirable to note that fact on the record

·       S. 210 CPC: if, after considering the arguments and submissions, the court finds that the prosecution has not made out such a case against the accused person to require that he be put on his defence, the court shall make a finding of not guilty, dismiss the case and acquit the accused person

·       The determination to acquit is a judgment in law, hence it must be in writing and state the reasons for such decision

·       A failure of the court to make a ruling on whether or not an accused person has a case to answer at the close of the prosecution case is an incurable defect (Wanjiku v Republic)

·       If the court finds that a prima facie case has been made out against the accused person sufficiently to require him or her to make a defence, the stage is set for the hearing of the defence case

·       When the evidence of the witnesses for the prosecution has been concluded, the court shall (if it considers necessary) hear arguments that the prosecution or defence may want to submit, before recording a finding of ‘not guilty’ (i.e. no case to answer) à the case is subsequently dismissed and the accused acquitted

 

6.       CASE FOR THE DEFENCE

·       S. 211 CPC: once the court determines that a prima facie case is established, it must explain the substance of the charge to the accused one more time and:

(i)            Inform him of his right to give evidence on oath from the witness box on his own behalf and that if he does so he will be liable to cross examination;

(ii)            Inform him of his alternative right to make an unsworn statement from the dock;

(iii)            Ask him whether he has any witness to examine or other evidence to adduce in his defence; and

(iv)            Remind him that he is under no obligation to say anything

·       Where the accused opts to give an unsworn statement, his or her statement should be recorded in full by the court and should not be cut in short – the court should not prompt the accused person to either add or subtract from an unsworn statement

·       If the accused person does not intend to give evidence/make an unsworn statement, the prosecution may sum up the case against the accused person. However, where the accused says that he intends to give evidence/make an unsworn statement, the court shall call upon him to enter his defence (S. 306(3) CPC)

·        The accused/his advocate may then open the accused’s case, stating the facts or law on which he intends to rely, and

making such comments as he thinks necessary on the evidence for the prosecution

·       The accused person may then give evidence on his own behalf and he/his advocate may examine his witnesses (if any), and after cross-examination and re-examination (if any) may sum up his case

·       Where the accused elects to call other witnesses, he has to give his evidence first, followed by the witnesses

·       Where the witnesses of the accused are not available in court, the court may adjourn to allow them to appear later, unless it considers that their absence is due to any fault or neglect of the accused person

·       Where the only witness to the facts of the case is the person charges, he shall be called as a witness immediately after the close of the evidence for the prosecution

 

7.       COMPETENCE AND COMPULSION OF WITNESSES

·       The capacity of a witness to give evidence at trial is governed by the rules of competence and compellability:

o   Competence is the ability of a person to give evidence in a court of law – persons are considered competent unless they are prevented from understanding questions put to them or giving rational answers thereto, by reason of tender years, extreme old age, disease or any similar cause

o Compellability refers to the ability to summon a witness to court to give evidence or else suffer a form of punishment upon refusal à if the court is satisfied that a person will not attend court unless compelled to do so, it may at once issue a warrant for the arrest and production of the witness before court

·       A witness is not excused from answering any questions as to any matter relevant to the fact in issue in criminal proceedings on the ground that any answer tendered may incriminate such witness

·       The law deals with such concerns by providing that no answer a witness gives shall subject him to arrest or prosecution

 

8.       ISSUE OF COMMISSION FOR EXAMINATION OF A WITNESS

 

CPC PROVISION	WHAT IT STATES
S. 54(1)	Whenever, in the course of a proceeding, the High Court or a magistrate is satisfied that the examination of a witness is necessary for the ends of justice, and that the attendance of the witness cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable, the Court or magistrate may issue a commission to any magistrate within the local limits of whose jurisdiction the witness resides, to take the evidence of the witness
S. 155(1)	The parties to a proceeding in which a commission is issued may respectively forward any interrogatories in writing which the Court or magistrate directing the commission may think relevant to the issue, and the magistrate to whom the commission is directed shall examine the witness upon those interrogatories
S. 155(2)	Any such party may appear before the magistrate by advocate, or, if not in custody, in person, and may examine, cross-examine and re-examine (as the case may be) the witness

 

9.       SWEARING AND AFFIRMATION

·       Every witness in a criminal cause or matter must be examined upon oath, and the court before which any witness shall appear shall have full power and authority to administer the usual oath

·       A witness who submits to the oath has to be sworn on a Holy Book (and the fact that a witness had no religious belief at the time of taking the oath does not affect its validity)

·       Where a witness objects to being sworn either on the basis of the lack of religious belief or that the taking of an oath is contrary to his or her religious belief, such witness shall be permitted to make a solemn affirmation instead

 

10.    EXAMINATION

·       A court may, at any stage of a trial or other proceeding, summon or call any person as a witness

·       It may examine any person in attendance though not summoned as a witness; or recall and re-examine a person already examined if the evidence of such person appears to it essential to the just decision of the case

·       At the commencement of the trial, it is advisable to request both the prosecution and defence witnesses who are yet to testify to stay outside the court while a witness testifies

·       There are three stages of examining a witness:

(i)            Examination-in-chief: the direct examination of a witness by the party who calls him

(ii)            Cross-examination: the examination of a witness by the adverse party

(iii)            Re-examination: where a witness has been cross-examined and is then examined by the party who called him

 

10.1        EXAMINATION IN CHIEF

·       The object of examination-in-chief is to obtain testimony in support of the version of facts in issue or relevant to the issue for which the party calling the witness contends

·       The witness is asked questions relevant to the issue before court in their natural sequence

·       Questions regarding his personal opinion or points of law may not be asked

·       Leading questions (i.e. questions which obviously suggest the desired answer or assume the existence of disputed facts which the witness has been called to testify about) are also normally not allowed during examination-in-chief

10.2        CROSS EXAMINATION

 

CPC PROVISION	WHAT IT STATES
S. 302	All witnesses are subject to cross examination by the adverse party or his advocate
S. 208(3)	Where the accused is not represented by an advocate, the court has a positive duty to invite the accused to cross-examine the witnesses of the prosecution and the court is required to record the answers he gives à this is intended to level the playing field and its efficacy must lie in the court’s ability to appreciate its fair trial implications

 

·       Cross examination is one of the principles of fair hearing and a denial of this right to the accused will vitiate any resultant conviction

·       The purpose of cross-examination is to elicit information concerning the facts in issue and that is favourable to the party on whose behalf the cross examination is being conducted as well as to cast doubt upon the accuracy of the evidence in chief against such party

 

CASE	HOLDING
Godhana               v Republic	The appellant had not been given the opportunity to cross examine his co accused and other prosecution witnesses. On appeal, the Court of Appeal at Mombasa held this to be a fatal misdirection
Kiarie and Another v Republic	The appellants were tried and convicted in a magistrate’s court for shop breaking. The only evidence against the second appellant was that of his co-accused, a tailor, who stated that he had brought the stolen property to him for the purpose of making clothes. On appeal, the High Court held that there was a fatal failure on the part of the trial magistrate to inform and accord the 2nd appellant of his right to cross examine the 1st appellant which resulted in a miscarriage of justice

 

10.3        RE EXAMINATION

·       After a witness has been cross examined, the party calling that witness may put questions to him

·       There are strict limits to the type of questions which may be put in re-examination

·       Leading questions may not be put and it must be confined to matters that arose during cross examination (new matters can be introduced with leave of the court)

·       When the evidence of both the accused and the prosecution has been adduced and their witnesses called, submissions are allowed wherein both sides are to summarise their cases

 

11.    DIFFICULT WITNESSES

11.1        HOSTILE WITNESS

·       A hostile witness is one who gives evidence that is contrary to that which the party that called him wishes to rely on to support their case

·       Coles v Coles: a hostile witness is one who, from the manner in which he gives evidence, shows that he is not desirous of telling the truth to the court. It is for this reason that under the Evidence Act, the party calling such witness may put questions to him which might ordinarily have been put in cross examination (‘declaring a witness hostile’)

 

CASE	HOLDING
Alowo v Republic	The basis of leave to treat a witness as hostile is that the conflict between the evidence which the witness is giving and some earlier statement shows him to be unreliable and this renders his evidence of negligible value
Batala v Uganda	Leave enables the party calling the witness to cross-examine him and destroy the evidence. If a witness is unreliable, none of his evidence can be relied on when given before or after he was hostile and can be given little or no weight
Shiguye v Republic	After having declared Shizya a hostile witness, the effect would be that Shizya was an unreliable witness, whose evidence would not be accepted by Court. All parts of the evidence of a witness declared hostile would be rejected as untrustworthy, not only some parts. purpose of having a witness declared hostile by the party who calls him is to discredit him completely

11.2        REFRACTORY WITNESS

·       This refers to any person who, appearing either in obedience to a summons or by virtue of a warrant, or being present in court and being verbally required by the court to give evidence, without offering sufficient excuse for uncooperative conduct or neglect –

a)       Refuses to be sworn; or

b)       Having been sworn, refuses to answer any questions put to him; or

c)       Refuses or neglects to produce any document or thing which he is required to produce; or

d)       Refuses to sign his deposition

·       In dealing with such a witness, the court may adjourn the case for any period not exceeding 8 days, and in the meantime commit him to prison

·       If the person being brought before the court again refuses to do what is required of him, the court may keep adjourning the case and committing him to prison until the person consents to do what is required of him

 

12.    PENALTY FOR NON-ATTENDANCE OF A WITNESS

·       A person summoned to attend as a witness who, without lawful excuse, fails to attend as required by the summons or who, having attended, departs without having obtained the permission of the court, or who fails to attend after adjournment of the court after being ordered to attend, shall be liable by order of the court to a fine not exceeding five thousand shill ings

·       The fine shall be levied by attachment and sale of movable property belonging to the witness within the local limited of the jurisdiction of the court

 

13.    SPECIAL WITNESSES

13. 1 DEAF AND DUMB WITNESS

 

CPC PROVISION	WHAT IT STATES
S. 126(1)	A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, e.g. by writing or by signs – but such writing must be written, and the signs made, in open court
S. 126(2)	The evidence given by such a witness is deemed to be oral evidence

 

13.  2 CHILDREN

·       A child of any age may be sworn as a witness in a criminal case provided that he appears to possess sufficient intelligence to understand the nature and obligation of the oath, for his competency depends on his understanding, not his age

·       A magistrate must satisfy himself of this by conducting a voir dire à if the magistrate is of the opinion that the child does not understand the oath, he may give an unsworn testimony if he possesses sufficient intelligence to understand what he is doing

 

CASE	HOLDING
John Otieno Oloo v Republic	The Court of Appeal stated that the trial court, before swearing a child of tender years, should out of caution form an opinion on a voir dire examination whether the child understands the nature of an oath or not. Failure to do so could occasion a miscarriage of justice had that been the only witness on the issues that were before the Court
Gabriel v Republic	The Court of Appeal held that it is always the duty of the Court to ascertain the competence of a child to give evidence; it is not sufficient to ascertain that a child has enough intelligence to justify the reception of the evidence, but also that the child understands the difference between truth and falsehood

 

·       Where a child does not understand the nature of an oath, they may nonetheless give unsworn evidence

 

CASE

HOLDING

Musikiri v Republic

It is clearly the duty of the Court in the determination of whether a child tendered as a witness understands the nature of an oath, if the finding on this question is a negative, to satisfy itself that the child is possessed of sufficient intelligence to justify reception of the evidence and understands the duty of speaking the truth. It is said that this is a condition precedent to the proper reception to the unsworn evidence of a child and it ought to appear on the face of record that this evidence was combined

·       The general rule is that an accused may not be convicted of an offence charged against him unless the evidence of a child is corroborated by some other material evidence implicating him

·       The position is different where the evidence given is that of a victim child of tender years à such evidence need not be corroborated if the court is satisfied that the child is telling the truth (Mohammed v Republic)

 

13.  3 LUNATICS

 

CPC PROVISION	WHAT IT STATES
S. 162(1)	When in the course of a trial the court has reason to believe that the accused is of unsound mind and consequently incapable of making his defence, it shall inquire into the fact of unsoundness
S. 162(2)	Where the court is of the opinion that the accused is of unsound mind and consequently incapable of making his defence, it shall postpone further proceedings in the case
S. 162(3)	If the case is one in which bail may be taken, the Court may release the accused person on sufficient security being given that he will be properly taken care of and prevented from doing injury to himself or to any other person, and for his appearance before the Court or such officer as the Court may appoint in that behalf
S. 162(4)	For a case involving a non-bailable offence or if sufficient security is not given, the Court shall order that the accused be detained in safe custody in such place and manner as it may think fit, and shall transmit the Court record or a certified copy thereof to the Minister for consideration by the President
S. 162(5)	Upon consideration of the record the President may by order under his hand addressed to the Court direct that the accused be detained in a mental hospital or other suitable place of custody, and the Court shall issue a warrant in accordance with that order

 

14.    TRIAL OF CHILDREN

·       Modern developments in the law relating to children have brought to the fore the unique vulnerabilities of the young and led to the enactment of several child-centric international and municipal laws

·       In Kenya, the controlling statute is the Children Act No. 8 of 2011 which removes children in conflict with the law from the jurisdiction of ordinary courts and places them under special courts known as Children’s Courts

·       The Children’s Courts have jurisdiction to hear any criminal charge against a child, other than a charge of murder or a

charge in which the child is charged together with a person or persons of or above the age of 18 years

·       Under the Children’s Act, there are special procedural provisions that are intended to afford children extra fair trial guarantees and safeguards

·        Where any conviction or sentence made or passed by a Court other than a Children’s Court is appealed against or is brought before the High Court for confirmation or revision and it appears that the person convicted was at the time of the commission of the offence under eighteen years of age, the High Court shall have power to substitute for the conviction a finding of and substitute for the sentence any other order

 

15.    TRANSFER OF CASES – OFFENCE COMMITTED OUTSIDE JURISDICTION

 

CPC PROVISION	WHAT IT STATES
S. 78(1)	Where a court is bereft of jurisdiction by reason of the complaint having arisen outside the local limits of its jurisdiction, it will transfer the case to the proper court
S. 78(2)	The transferring court will cause the accused person to be placed or continued in custody and delivered to the proper court, which shall treat him as if the complaint and other process had been taken before it
S. 79	A magistrate holding a subordinate court of the first class – a)       May transfer a case pending before him to any other magistrate in the same local jurisdiction; or b)       May direct or empower a magistrate within his local limits to transfer a case pending before such magistrate for trial before another magistrate or to himself
S. 80	If in the course of any trial before a magistrate the evidence appears to warrant a presumption that the case is one which should be tried by some other magistrate, he shall stay proceedings and submit the case with a brief report thereon to a magistrate holding a subordinate Court of the first class empowered to direct the transfer of the case

16.    PRINCIPLES GOVERNING A FAIR TRIAL

·       The desiderata for a fair trial are to be found at Article 50, Constitution 2010 within the Bill of Rights

·       These principles may be seen as the application of natural justice or due process to the criminal justice system and are a defining feature of a free and democratic society

·       So important is the right to a fair trial that it is one of the four non-derogable rights which cannot be limited or alienated under any circumstances

·       The High Court in Eric Cheriuiyot Kotut v Republic stated that it had a supervisory jurisdiction under Section 62 (currently Section 165(6)) of the old Constitution and was entitled to move on its own motion to stop any unfair trial taking place in the lower courts

·       The principles of fair trial were summarised in Republic v Subordinate Court of the 1^st Class Magistrates and Another as:

(i)            Right to equality before the law;

(ii)            Right to presumption of innocence;

(iii)            Right to a fair hearing;

(iv)            Right to equality of arms in adversarial proceedings; and

(v)            Right to be tried by a competent, independent and impartial tribunal established by law

 

PRINCIPLE	WHAT IS STANDS FOR	CASE LAW (IF ANY)
TRIAL BY AN INDEPENDENT AND IMPARTIAL COURT – Article 50(1)	·       At the heard of an effective adjudicatory system is the imperative of an independent and impartial court system ·       It is trite that if the public generally loses confidence in the judiciary, the seeds of anarchy are sowed within society and it becomes a slippery descent into lawlessness ·       The primary duty of the court is to ascertain the truth, and so its role is not restricted to that of arbiter – it may put questions to the witnesses to clarify any point or resolve contradictions ·       The court retains residual discretion to control and regulate the conduct of the trial, i.e. admissible and inadmissible evidence, relevant or irrelevant information, what questions can be put at each stage, etc.	Murimi v Republic: the power vested in the Court to call witnesses must be read in conjunction with the requirement of the law that the prosecution must prove its case beyond reasonable doubt. It concluded that the above provision was not designed and should not be used to empower the trial Court upon the close of the prosecution case, to call a witness in order to establish a case against the accused person, except where the evidence is of a purely formal nature
RIGHT                            TO EXPEDITIOUS JUSTICE – Article 50(2)(e)	·       Unreasonably prolonged court proceedings in a criminal case are not consistent with the requirements of a fair hearing ·       The trial must begin and conclude without unreasonable delay	Republic v Attorney General and Another: the High Court stated that if a prosecution does not afford an individual ‘a fair hearing within a reasonable time by an independent and impartial court’, it should be halted
RIGHT TO A PUBLIC TRIAL	·       Because the public has a definite interest in the outcome of criminal trials (as the same affect the life and liberty of citizens), the constitution requires the same to be held in public ·       Court premises and proceedings should be open to all members of the public who may wish to attend and press who would make them available to the wider public ·       However, this does not prevent the exclusion of the press/members of the public if the exclusion is necessary in a free and democratic society to protect witnesses, vulnerable persons, mortality, public order or national security
PRESUMPTION    OF INNOCENCE                                    – Article 50(2)(a)	·       One is presumed innocent until he is proven or has pleaded guilty ·       A full and proper appreciation of this ought to lead to a more humane and dignified treatment of accused persons by the police and the courts as persons deserving of appropriate respect

 

RIGHT TO BE INFORMED OF THE CHARGE                        WITH SUFFICIENT DETAIL TO ANSWER IT – Article 50(2)(b)	·       An accused person is to be informed, as soon as reasonably practicable, in a language that he understands and in detail, of the nature of the offence with which he is charged ·       This is meant to eliminate ambushes and undue secrecy in the criminal justice system ·       It also provides enough and unambiguous information that would enable the accused make a full answer thereto	Kanda v Government of Malaya: If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused person to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them
RIGHT                            TO ADEQUATE TIME AND FACILITIES FOR PREPARATION     OF DEFENCE – Article 50(2)(c)	·       This may take the form of reasonable adjournments where needed and reasonably sought, as well as opportunity to receive and view beforehand the evidence that the prosecution intends to adduce against the accused ·       The right to pre-trial discovery is now well established and the giving of the charge sheet, witness’ statements, investigation diaries, expert reports, copies of documents and exhibits is basic to every trial nowadays ·       Furthermore, every citizen has the right of access to information held by the state and information held by another person and required for the exercise or protection of any right or fundamental freedom
RIGHT TO CHOSEN COUNSEL – Article 50(2)(g)	·       An accused person must be permitted to defend himself before the court in person or by a legal representative of his own choice, and to be informed of this right promptly ·       The right to an advocate may be lost if not exercised reasonably, e.g. an accused person is not entitled to indefinite adjournments of the trial to enable him to instruct an advocate	Lima and Another v Republic: every accused has the undoubted right to be defended by counsel. If an accused is deprived of that right through no fault of his own or of his counsel and a conviction follows, the conviction will be quashed on appeal.   Ruhi v Republic: the trial Court, in the absence of some of the advocates for the accused and of unrepresented accused persons, changed and brought forward the date fixed for further hearing of the case. In response the advocates withdrew from the case and some of the accused persons declined to participate further in the trial. Upon appeal, the ensuing conviction was quashed inter alia on the basis that the Constitution guaranteed an accused person the right to counsel, which had been breached
RIGHT TO ASSIGNED COUNSEL	·       In recognition of the gravity of the offence and severity of the penalty, the Judiciary provides the indigent accused person with an advocate under the pauper brief system ·       This applies only to capital trials at the High Court and capital appeals at the Court of Appeal ·       This is an attempt to level the playing field somewhat but it remains wholly gratuitous and does not proceed from obligation ·       This view is informed by the fact that every criminal defendant potentially faces a sentence on conviction that would impact on his life or liberty and for him to face trial unrepresented would result in substantial injustice
RIGHT TO SILENCE – Article 50(2)(i)	·       Every accused person has the right to remain silent, and not to testify during the proceedings

 

	·       This is in keeping with the time-honoured principles of innocence until proven guilty and its corollary, that the burden to prove criminal cases beyond reasonable doubt always rests with the prosecution and never shifts
RIGHT TO ADDUCE AND CHALLENGE EVIDENCE	·       An accused person has the right to adduce and challenge evidence ·       He shall be afforded facilities to examine in person or by his legal representative the witnesses called by the prosecution before the court	Henry Kimathi v Republic: the Court of Appeal held that the failure by a trial judge to assist the appellant in calling a witness in support of his alibi defence clearly amounted to a violation of his rights guaranteed by the constitution
RIGHT OF NON-SELF INCRIMINATION                            – Article 20(2)(l)	·       An accused person has the right to refuse to say anything, disclose any information, produce any document or answer any question if such disclosure, production or answer would tend to incriminate him ·       This right may be raised in the course of police interrogation as well as in the course of testimony ·       This is an extension of the right to silence both at the time of the arrest and during the trial
RIGHT                            TO INTERPRETER                              – Article 50(2)(m)	·       The accused is permitted to have, without payment, the assistance of an interpreter if he cannot understand the language used at the trial of the charge ·       In addition, whenever information is required to be given to the interpreter as part of the fair- hearing guarantee, the same shall be in a language that he understands	Abdalla v Republic: the Court of Appeal held that it is a fundamental right of the accused charge with a criminal offence to have the assistance of an interpreter
RIGHT                  AGAINST RETROSPECTIVE OPERATION OF LAW – Article 50(2)(n)	·       No person shall be held to be guilty of a criminal offence on account of an act or omission that did not, at the time it took place, constitute an offence in Kenya not constitute a crime under international law ·       However, with the incorporation of general rules of international law as well as any treaties or conventions ratified by Kenya by virtue of article 2 of the Constitution, it would seem that it is possible for persons to be accused and prosecuted for crimes under international law notwithstanding that they may not have been legislated against in Kenya as at the date of commission
RIGHT                  AGAINST DOUBLE JEOPARDY – Article 50(2)(o)	·       No person who shows that he has been tried by a competent court for a criminal offence and either convicted or acquitted shall again be tried for that offence or for any other criminal offence of which he could have been convicted at the trial of that offence ·       Such person would have the right to plead autrefois acquit or autrefois convict
RIGHT                            OF EXCLUSION                            OF EVIDENCE – Article 50(4)	·       Evidence obtained in a manner that violates any right or fundamental freedom in the Bill of Rights shall be excluded if the admission of that evidence would otherwise render the trial unfair, or would otherwise be detrimental to the administration of justice ·       This is a categorical departure from the closed-eye policy of the judiciary which was unconcerned about how evidence was obtained and so would suppress admission of the same on the ground that it was fruit of a poisoned tree
RIGHT    TO              LEAST SEVERE SENTENCE – Article 50(2)(p)	·       An accused has the right, where the sentence prescribed for an offence has been changed from the time he committed the offence to the time of sentencing, to receive the benefit of the least severe sentence Essentially, if the punishment for an offence is enhanced by legislation during the pendency of proceedings, the accused on conviction will have the former, lesser sentence imposed

 

RIGHT TO RECORDS – Article 50(5)	·       Every accused person, except one charged with any offence triable by summary procedures, is entitled during and in the course of the trial to a copy of the record of proceedings of that trial whenever he requests for the same ·       This means that the record ought to be available to an accused person or his legal representatives on a daily and continuous basis and is an essential prop to the right of adequate facilities
RIGHT TO   APPEAL OR REVIEW – Article 50(2)(q)	·       Every person who is convicted of an offence has a right to appeal to, or apply for review by, a higher court as prescribed by law ·       This is clearly in recognition of human fallibility which calls for a fresh and exhaustive review of the law and evidence
RIGHT     TO               NEW TRIAL – Article 50(6)	·       The new constitution provides that a person who is convicted of a criminal offence may petition the High Court for a new trial notwithstanding the dismissal of his appeal by the highest court to which he is entitled to appeal, or notwithstanding his failure or omission to mount an appeal within prescribed time ·       However, this new right is exercisable only within narrow strictures of discovery of new and compelling evidence
RIGHT                            TO INTERMEDIARY	·       The constitution recognizes the right of an accused person, as well as a complainant, to communicate with the court with the aid or assistance of an intermediary where the interest of justice so requires ·       There may be instances where certain witnesses are in positions of such vulnerability as to be unable to effectively communicate ·       An intermediary is a person who, on account of his or her own expertise or experience, is allowed by the court to give evidence on behalf of a vulnerable witness and may include a parent, relative, psychologist, counsellor, guardian, children’s officer or social worker

CHAPTER 11: JUDGMENT AND SENTENCING

 

1.       JUDGMENT

·       A judgment is the final decision of the court as pertains the guilt or otherwise of the accused person – it is entered and rendered by the court once all evidence has been adduced by both sides

·       When delivering the judgment, the court need not read the entire judgment and may pronounce and explain the substance only

·       However, if either the prosecution or the defence requests the whole judgment to be read out by the presiding judge or magistrate, it shall be so read (S. 170 CPC)

·       In addition, on the application of the accused person, a copy of the judgment, or a translation of the same in his own language (if he so desires and if practicable), shall be given to him without delay (S. 170 CPC)

·       The presence of the accused person at the pronouncement of judgment is vital and he must, if in custody, be brought before the court

·       If he is not in custody, the accused person will be required by court to attend, unless his personal attendance has been dispensed with and the sentence is one of a fine only or a matter in which he is acquitted

·       A judgment delivered by a court is not invalidated by reason of the absence of a party or his advocate on the day of delivery of the judgment

 

1.1    FORM OF JUDGMENT

 

CPC PROVISION	WHAT IT STATES
S. 169(1)	In order to satisfy the requirements as to formal validity every judgment must: (i)             Be written by or under the direction of the presiding officer of the court; (ii)            Be in the language of the court; (iii)             Contain the point or points for determination, the decision thereon and the reasons for the decision; (iv)             Be dated; and (v)            Be signed by the presiding officer in open court at the time of pronouncing it
S. 169(2)	In the case of a conviction, the judgment must specify the offence with which and the law under which the accused person is convicted and the punishment to which he is sentenced
S. 159(3)	In the case of an acquittal, the judgment must state the offence of which the accused person is acquitted and must direct that he be set at liberty

 

CASE	HOLDING
Republic v Gikunju Karingu	The Court held that the practice of adding notes to a signed judgment is not one to be encouraged; hence a judgment should contain within itself all the reasons which have acted on the magistrate’s mind in coming to his conclusion
Lokwacharia                    v Republic	The judgment of the High Court appealed from was dated but not signed by one of the two judges who delivered it. The Court of Appeal held that in such a case there was actually no judgment of the superior Court. The Court said that it was therefore precluded from hearing the merits and demerits of the said judgment. That being the position, the appellant’s appeal was allowed and a further order made directing that the appeal to the High Court be heard de novo before a different bench

 

1.2    CONTENT OF A JUDGMENT

(i)            A brief statement of the offence with which the accused is charged – the opening paragraph should contain an accurate statement of precisely what offence the accused person is alleged to have committed

(ii)            It should contain a summary of the prosecution’s evidence in narrative form

(iii)            It should contain a summary of the defence case and be clear about where the defence case differs from that of the prosecution – the magistrate must refer to the contested and uncontested elements of the charge

(iv)            It should contain the points of determination – having considered both sides of the case, the magistrate must set aside irrelevant considerations and go to the crux of the matter

(v)            Having made clear exactly what needs to be decided, the magistrate renders his decision, immediately followed by the reasons therefore (he can make reference to witnesses and their demeanour if there is anything to be deduced from this)

(vi)            A separate paragraph may be necessary in the judgment if there are some unusual features of evidence, procedure or criminal law that arose during the trial

(vii)            To allay all doubts, the concluding paragraph should contain a single sentence clearly stating whether the accused is found guilty and convicted or not guilty and acquitted of the offence with which he is charged

 

1.3    CONVICTIONS FOR OFFENCES OTHER THAN THOSE CHARGED

·       There are instances when it is permissible, necessary even, for the court to convict an accused person for offences other than the one or those with which he was charged

·       In so convicting, the court is deemed to be exercising powers that are additional to and not in any way derogatory of the other provisions of the CPC

·       These situations include the following:

(i)            Person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and that combination is proved but not the remaining particulars;

(ii)            The person is charge with an offence and facts are proved which reduce it to a minor offence;

(iii)            When a person is charged with an offence, he may be convicted of having attempted to commit that offence;

(iv)            When a woman is charged with the murder of her child who is younger than 12 months, and the court is of the opinion that she caused the death but had not fully recovered from post-partum and lactative disturbance, she may be convicted of the offence of infanticide;

(v)            When the court is charged with the murder or manslaughter of a child or with infanticide, or with an offence relating to the procuring of abortion and the court is of the opinion that he is not guilty of that offence charged but of the offence of killing an unborn child;

(vi)            When a person is charged with killing an unborn child and the court is of the opinion that he is not guilty of that offence but of an offence relating to the procuring of an abortion;

(vii)            When a person is charged with the murder or infanticide or killing an unborn child and the court is of the opinion that he is not guilty of any of those offences, and it appears in evidence that the child had recently been born and that the person endeavoured to conceal the birth of that child, he may be convicted of the offence of endeavouring to conceal the birth;

(viii)            When a person is charged with manslaughter from his driving of a motor vehicle and the court is of the opinion that he is not guilty thereof, he may be convicted of an offence of causing death by driving or obstruction;

(ix)            Where a person is charged with an offence related to the administration of unlawful oaths to commit other offences, and the court is of the opinion that he is not guilty of that offence but of a different offence under the same paragraph, he may be convicted of that other offence;

(x)            When a person is charged with rape and the court is of the opinion that he is not guilty thereof but that he is guilty of an offence under the Sexual Offences Act, he may be convicted of that other offence;

(xi)            When a person is charged with the defilement of a girl under the age of fourteen years and the court is of the opinion that he is not guilty but that he is guilty of an offence under the Sexual Offences Act, he may be convicted of that other offence;

(xii)            When a person is charged with an offence relating to burglary, housebreaking and similar offences, and the court is of the opinion that he is not guilty of the particular offence but that he is guilty of a different related offence, he may be convicted of that other offence;

(xiii)            When a person is charged with stealing anything and the facts proved amount to an offence of handling, having or conveying stolen property, having obtained the same by false pretences with intent to defraud, he may be convicted of the offence of obtaining by false pretences;

(xiv)            When a person is charged with falsely obtaining property with intent to defraud and it is proved that he stole the same, he may be convicted of the offence of stealing; and

(xv)            When a person is charged with the offence of stock theft and the court is of the opinion that he is not guilty thereof but that he is guilty of illegal possession of stock, he may be convicted of the latter offence

 

2.       SENTENCING

·       Once the court finds that an accused person is not guilty of the offence charged, it acquits him and he is set at liberty

·       S. 218 CPC: the production of a copy of the court order of acquittal, certified by the clerk or other officer of the court, shall without other proof be a bar to a subsequent information or complaint for the same matter against the same accused person (autrefois acquit)

·       However, where the court finds the accused guilty, the stage is set for the court to impose a penalty and pass a sentence upon the convicted offender

 

2.1    PRINCIPLES OF SENTENCING

·       Any court may pass a lawful sentence, combining any of the sentences which it is authorised to pass

·       The High Court has jurisdiction that is unlimited and may therefore pass any sentence that the law authorises, while subordinate courts pass such sentences as are conferred upon their class and seniority

·       The court has jurisdiction to pass the full sentence of imprisonment provided, in addition to any term of imprisonment which may be awarded in default of payment of a fine, costs or compensation

·       When a person is convicted at one trial of two or more distinct offences, the court may sentence him for those offen ces to a combination of several punishments prescribed therefor

·       Under the CPC, punishment or sentences constating of imprisonment should run consecutively unless the court directs that they run concurrently

 

 

CASE	HOLDING
Republic v Jagani and Another	The High Court stated that the purpose of a sentence is usually to disapprove or denounce unlawful conduct as a means to deter the offender from committing the offence, to separate offenders from society if necessary, to assist in rehabilitation of offenders and in retribution by providing for reparation for harm done to victims in particular and generally to society. It is also seen as promoting a sense of responsibility in offenders
Republic                v Yonasani               and Others	The previous position was that every sentence should run (unless otherwise provided for by the Penal Code) from the date of pronouncement which precluded any court from antedating the commencement of sentence. This changed, however, when the Criminal Procedure Code was amended so that the period of time spent in custody is taken into account as part of time served
Njoka v Republic	The High Court stated that it lies in the discretion of the court to order whether sentences should run concurrently or consecutively. Thus, where offences are committed in one transaction, as it was in this case where the accused had been charged with the offences of burglary and stealing, the sentences ought to run concurrently even when laid in separate counts

 

2.2    THE SENTENCING PROCESS

·       S. 216 CPC: before passing sentence or making an order against an accused person, the court should receive such evidence as it thinks fit in order to inform itself as to the sentence or order properly to be passed or made

·       The matters the court should consider in determining proper sentencing include:

o   Intrinsic value of the subject matter;

o   Antecedents of the accused;

o   Age of the accused;

o   Conduct of the accused at trial (particularly with regard to his plea); and

o   Prevalence of the particular crime in society

·       After convicting the accused, the court must call upon the prosecution to give a factual statement on the accused à in particular: any previous convictions, and if so, the nature of the conviction, the date of the sentence, and the date the accused was released from prison

·       When something alleged by the prosecution is denied or disputed, the court will make a finding on its truth by following the normal procedure for trial

·       Where the prosecution alleges a previous conviction, the court should specifically ask the accused whether he admits or denies the previous convictions. However, the prosecution should not allege or imply that the accused has committed offences for which he has not been convicted (i.e. no prejudicial statements to influence a harsher sentence)

·       Wanjiku v Republic: in sentencing the accused, a court should not take into account extraneous matters that were neither in evidence not proved

3.       MITIGATING CIRCUMSTANCES

·       The accused should, following the prosecution’s factual statement, be given an opportunity to deny or qualify the

information presented by the prosecutor and to state further facts in mitigation

·       Under common law, this is a right accorded to the accused to address the court personally before sentencing

o   This allows the court to identify the defendant as the person adjudged guilty

o   He can be given an opportunity to plead for mercy or pardon, move for an arrest of judgment, or indicate why sentence ought not to be pronounced

·       If facts relied upon in mitigation are disputed by the prosecution, evidence must be heard and a finding made on the disputed facts

·       In the absence of evidence to the contrary, the court ought not to ignore mitigating circumstances put forward by the accused

 

 

CASE	HOLDING
Republic   v    Nasanairi Nsubuga	It is not mandatory for the court to receive such information but it is desirable to do so
Edwin                  Otieno Odhiambo v Republic	The Court of Appeal held that on matters of sentencing, if a court failed to take into account mitigating circumstances, the chances of not coming up with an appropriate sentence were enhanced
Criminal Appeal No. 359 of 2006	Courts are free to ignore mitigating circumstances when the gravity of the offence or the need for deterrence is so compelling as to outweigh the individual circumstances of the accused

 

4.       VICTIM IMPACT STATEMENT

·       These were introduced by the Criminal Law (Miscellaneous Amendments) Act No. 5 of 2003

·       This brought in Victim Impact Statements in a deliberate move to acknowledge victims of crime and move them from the shadowy peripheries of the criminal justice process

 

CPC PROVISION	WHAT IT STATES
S. 329A	‘Victim impact statement’ means a statement containing particulars of: a)       In the case of a primary victim, any personal harm suffered by the victim as a direct result of the offence; or b)       In the case of a family victim, the impact of the primary victim’s death on the members of the primary victim’s immediate family
S. 329B	They apply in relation to an offence that is being dealt with by any court, where the offence results in the death of or actual physical bodily harm to any person
S. 329C (1)	A court may receive and consider a victim impact statement, which it may acknowledge and make any comment thereon as it may consider appropriate, at any time after it convicts, but before it sentences, an offender
S. 329C (3)	For it to be considered, a victim impact statement must have been filed by the victim or the prosecutor or on their behalves and one filed by a family victim will be considered only if the court deems it appropriate
S. 329C (4)	The Court may avail a victim impact statement to the prosecutor, the offender or to any other person on such conditions (which shall include conditions preventing the offender from retaining copies of the statement) as it considers appropriate
S. 329D	The giving of a victim impact statement is not mandatory and none will be received or considered by a Court if the victim or any of them to whom it relates objects to its being given to the Court but the absence of a victim impact statement does not give rise to any inference that the offence had little or no impact on a victim
S. 329E (1)	A victim impact statement must be in writing and must comply with such other requirements as are prescribed by rules of the court

5.       COMMITTAL TO A HIGHER COURT FOR SENTENCING

·       S. 222(1) CPC: Where a person is convicted by a subordinate court of an offence which is punishable by either that court or a subordinate court of higher class or the High Court, and the court, after obtaining information as to his character and antecedents, is of the opinion that greater punishment should be inflicted than it has power to inflict, it may, instead of dealing with him itself, commit him in custody to the court of higher class or the High Court for sentence

·       The court of higher class or High Court shall then inquire into the circumstances of the case, and may deal with the offender in any manner in which he could be dealt with if he had been convicted by itself

·       If the court of higher class or the High Court passes a sentence which the court convicting him had not the power to pass, the offender may appeal against the sentence to the High Court or to the Court of Appeal (as the case may be) on sentence only

 

6.       FACTORS TO BE CONSIDERED BEFORE SENTENCING

·       The issue of sentencing in Kenya is still highly discretionary, with the result that there are sometimes scandalous variances between sentences imposed for the same offences by different magistrates

·       Republic v Malakwen Arap Kogo: The High Court held that there are a number of factors that determine where in the scale of sentencing an offence lies:

(i)       Intrinsic value of the subject matter;

(ii)     Antecedents of the accused

(iii)    Youth of the accused;

(iv)    Conduct of the accused at the trial, in particular whether he pleaded guilty or not guilty;

(v)     Prevalence of the particular crime in the neighbourhood

(vi)    The fact that the appellant pleads guilty and has no previous conviction; and/or

(vii)  The period of detention before trial

·       The types of sentences that may be imposed are found in Chapter VI Penal Code (Cap. 63)

 

DEATH SENTENCE	·       Where any person is sentenced to death, the form of the sentence shall be to the effect only that he is to suffer death in the manner authorised by law ·       Sentence of death must not be pronounced on or recorded against any person convicted of an offence if it appears to the court that at the time when the offence was committed, he was under the age of 18 years à such a person is normally detained during the President’s pleasure at such a place and in such conditions as the President directs ·       The death sentence cannot be imposed on a pregnant woman, and she too would be detained at the President’s pleasure
IMPRISONMENT	·       A sentence of imprisonment for any offence may be accompanied by hard labour as may be required or permitted by the law under which the offence is punishable ·       Save as expressly provided by the law, a person liable to imprisonment for life or any other period may be sentenced to a shorter term ·       Bakari and Another v Republic: where there is a heavy minimum sentence prescribed for an offence, the lower courts should be particular to see that each ingredient in the charge is reflected in the particulars of the offence and is properly proved ·       A person liable to imprisonment for an offence may be sentenced to pay a fine in addition to or in substitution for imprisonment (lest the law provides for a minimum sentence of imprisonment)
PAYMENT OF FINE	Where a fine is imposed under any law, then in the absence of express provisions relating to that fine, the following rules apply: (i)       Where no sum is expressed, the amount of the fine which may be imposed is unlimited but shall not be excessive; (ii)     Where an offence is punishable with a fine or a term of imprisonment, the same shall be a matter of discretion for the court; (iii)    In the vase of an offence punishable with imprisonment as well as a fine, in which the offender is sentenced to a fine with or without imprisonment, and in every case of an offence punishable with a fine only in which the offender is sentenced to a fine, the court passing sentence may, in its discretion:

 

	o   Direct that in default of payment of the fine the offender shall suffer imprisonment for a certain term, which shall be in addition to any other imprisonment to which he may have been sentenced or to which he may be liable under a commutation of sentence; and o   Issue a warrant for the levy of the amount on the whole immovable and movable property of the offender by distress and sale under warrant o   Note: the imprisonment which is imposed in default of payment of a fine terminates whenever the fine is paid or levied by process of law
FORFEITURE	·       When any person is convicted of an offence the court may, in addition to or in lieu of any penalty which may be imposed, order the forfeiture of any property which has passed in connection with the commission of the offence ·       If the property cannot be found, forfeiture of such sum as the court shall assess as the value of the said property (which forfeiture is enforced in the same way as payment of a fine) ·       Where the offence arose out of, or was committed in the course of, any trade or business, the court may, in addition to any other penalty, order the prohibition or disqualification of such person from such employment, business or trade (failure to comply will attract penalties)
PAYMENT                         OF COMPENSATION	·       The court has jurisdiction to address victims by ordering that a person convicted do make compensation to any person injured by his offence ·       The compensation may be in addition to, or substitution for, any other punishment
COSTS	·       Subject to the limitations imposed by the CPC, a court may order any person convicted of an offence to pay the costs of and incidental to the prosecution or any part thereof
FURNISHING SECURITY TO KEEP PEACE AND BEING OF                   GOOD BEHAVIOUR	·       A person convicted of an offence not punishable with death may, instead of, or in addition to any punishment to which he is liable, be ordered to enter into his own recognizance, with or without sureties, in such amount as the Court thinks fit, conditioned that he shall keep the peace and be of good behaviour for a time to be fixed by the Court, and may be ordered to be imprisoned until such recognizance, with sureties, if so directed, is entered into
	In Mwagoma and 3 Others v Republic, the High Court reiterated the procedure to be followed before an order to keep peace and execute bond is issued: (i)       The first step is to examine the informant on oath (ii)     The second step is that, where the magistrate deems it necessary to require a person to show cause why they should not be bound over, he should make an order in writing setting out matters such as: a.        The substance of the information received; b.       In the case of a restriction order, the district to which the person concerned is to be restricted for a period of three years; and c.        In any other case where the amount of bond is to be executed, the term for which it is to be in force and the number, character and class of securities, if any, required (iii)    After this order has been made, the third step is for the magistrate to hold an inquiry into the truth of the information upon which the action has been taken (iv)    The final step is to make an order to execute a bond if upon inquiry, it is proved that it is necessary for keeping peace or maintaining good behaviour that the person should execute a bond
ABSOLUTTE AND CONDITIONAL DISCHARGE	·       Where the Court is of the view, having regard to all the factors, that it is inexpedient to inflict punishment and that an order of probation would not be suitable, it may discharge the convict absolutely or upon the condition that he shall not commit another offence in a period not exceeding 12 months from the date of the order ·       The Court has to explain to the offender in a language he understands that if he commits any other offence within the specified period, he will, in addition, be sentenced for the original offence
COMMUNITY SERVICE	·       The court may make an order that a convicted offender to perform community service for offences punishable by imprisonment for not more than three years and for which probation is not an appropriate sentence (S. 3(1) Community Service Orders) ·       Community service comprises unpaid public work within a community and includes, but is not limited to, the following:

 

(i)       Construction or maintenance of public roads or roads of access; (ii)      Afforestation works; (iii)    Environmental conservation and enhancement work; (iv)    Projects for water conservation, management or distribution and supply; (v)      Maintenance work in public schools, hospitals and other public social service amenities; (vi)    Work of any nature in a foster home or orphanage; (vii)  Rendering specialist or professional service in the community and for the benefit of the community ·       Where a court determines that a community service order should be made, it may, before making the order, direct a community service officer to conduct an inquiry into the circumstances of the case and of the offender and report the findings to the court ·       An inquiry may be conducted in any such manner and the report may be in such form and cover such matters as may be prescribed ·       A court shall not make an order in respect of an offender unless the offender is present and the court is satisfied that adequate arrangements exist for the execution of the order, and also that the offender is a suitable person to perform community service under the order

CHAPTER 12: APPEALS AND REVISIONS

 

1.       APPEALS

·       The general rule is that any person convicted of a criminal offence in a magistrate’s court has a to appeal the said convicti on to the High Court against such conviction, and the magistrate is required to inform him of this right

·       The court in Republic v Jagani & Another said that a court of appeal will only interfere with the sentencing decision of the trial court where:

(i)            The sentence was imposed against legal principles; or

(ii)            Relevant factors were not considered; or

(iii)            Irrelevant and/or extraneous matters were considered; or

(iv)            The sentence is manifestly excessive in view of the circumstances of the case

 

CASE	HOLDING
Macharia v Republic	An appellate court will not review or alter a sentence imposed by the trial court on the mere ground that if it had tried the appellant it would have passed a somewhat different sentence. It would be slow to interfere unless the trial judge acted on some wrong principle or overlooked some material facts or issued a sentence that was manifestly excessive
Odhiambo v Republic	An appellate court is not under any obligation to allow an appeal simply because the State is not opposed to it. It is under a duty to ensure that it subjects the entire evidence tendered before the trial court to a close, fresh and exhaustive scrutiny and reassess it to reach its own determination based on the evidence and nothing else. It has to consider all the submissions that are made before it by both the appellant and the state

 

1.1    APPEALS FROM SUBORDINATE COURTS

·       S. 347(1) CPC: an appeal lies from the magistrate’s court to the High Court on matters of fact and law

·       The High Court is entitled and duty bound to reconsider the evidence, evaluate it itself and draw on its conclusions on whether the judgment of the trial court should be upheld

 

CASE	HOLDING
Amolo v Republic	An appellate court is not entitled to alter the sentence on appeal unless convinced that the trial court erred in principle in imposing it, except where the sentence was so manifestly harsh or excessive as to be evidence that the trial court erred
Kinyanjui v Republic	1.        It is mandatory to look at the evidence before the trial magistrate afresh, re-evaluate and re- examine the same and reach its own independent conclusion whether or not to uphold the conviction of the appellant. In reaching its decisions, the High Court has to bear in mind the fact that it did not have an opportunity of seeing the witnesses as they testified and therefore is not be expected to make any findings as to the demeanour of the said witnesses 2.       The High Court is mandated to consider the grounds of appeal put forward by the appellant in reaching its judgment
Patrick and Another v Republic	it is not the function of the appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; it must make its own findings and draw its own conclusions. An appellant on first appeal is, therefore, entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court’s own decision on the evidence

 

1.2    NUMBER OF JUDGES ON APPEAL

 

CPC PROVISION	WHAT IT STATES
S. 359(1)	Appeals from subordinate courts are heard by two judges of the High Court, except when it any particular case the Chief Justice, or a judge to whom the Chief Justice has given authority in writing, directs that the appeal be heard by one judge
S. 359(2)	If on the hearing of an appeal the court is equally divided, the appeal is reheard before three judges

·       Nzingo v Republic: The Court of Appeal nullified the conviction of an applicant, whose first appeal had been heard by one Commissioner of Assize. There was no evidence on the face of the record to show that the Chief Justice had directed the appeal to be so heard and the single judge, therefore, did not have jurisdiction

 

1.3    TIME OF APPEAL

·       An appeal is entered within fourteen days of the date of the order or sentence appealed against, unless the court to which the appeal is made for good cause admits the appeal out of time

·       The court may do this if satisfied that the delay was caused by the inability of the appellant or his advocate to obtain a copy of the judgment or order appealed against and a copy of the record within a reasonable time

 

1.4    PETITION OF APPEAL

 

CPC PROVISION	WHAT IT STATES
S. 351	An appeal is made in the form of a written petition, signed by the appellant or his advocate, and must be accompanied by a copy of the judgment or order appealed from. It must be signed by the appellant if he is unrepresented, or alternatively by his advocate
S. 352	The petition must contain the matters of law or fact that the trial court is alleged to have erred in, and must also indicate the appellant’s address of service
S. 352	An appellant may not rely on a ground not in his petition à However, the petition may be amended without leave by giving notice to the Registrar of the High Court and to the Attorney General within 7 days of receipt of the record of proceedings, provided that the petition had been filed within the prescribed 14 days
S. 351	If the appellant is in prison, he may present his petition of appeal and the accompanying documents to the Officer in Charge of the Prison, who will forward them to the Registrar of the High Court

 

 

1.5    SUMMARY DISPOSAL OF APPEALS

 

CPC PROVISION	WHAT IT STATES
S. 352(2)	When the High Court has received the petition and copy of record, a judge will peruse them and if he considers that there is no sufficient ground for interfering, may reject the appeal summarily and certify that he has perused the record and is satisfied that the appeal has been lodged without any sufficient ground for complaint
S. 352(3)	Whenever an appeal is summarily rejected, notice of the rejection must be given to the AG and to the appellant or to his advocate
S. 352A	Where an appeal against conviction has been lodged and a judge of the High Court is satisfied that the conviction cannot be supported, and the Attorney General has informed the court in writing that he does not support the conviction, the judge may summarily allow the appeal
S. 353	If an appeal is not dismissed summarily, the High Court will issue notice to the parties thereto of the time and place at which it will be heard and will furnish the respondent with a copy of the proceedings and of the grounds of the appeal

 

·       However, no appeal should be rejected summarily without the appellant or his advocate being afforded the opportunity to be heard in support of it

·       Summary rejection of appeals was initially meant for trivial cases where the evidence was overwhelmingly clear on record to support the conviction and where the appeals were based on evidence alone – i.e. it should only be used in obvious, clear and straightforward cases which do not raise a point of law

 

CASE	HOLDING
Ndungu v Republic	Summary rejection of appeals under S. 352(2) of the CPC applies only where an appeal is on the grounds that conviction is against the weight of the evidence or that the sentence is excessive. Summary rejection of appeals was meant for trivial cases where the evidence was overwhelmingly clear on record to support the conviction and where the appeals were based on evidence

1.6    POWERS OF THE HIGH COURT

 

CPC PROVISION	WHAT IT STATES
S. 354(1)	At the hearing of the appeal, the appellant first addresses the court in support of the grounds set out in the petition of appeal and the respondent then gives his response
S. 354(2)	The court may thereafter invite the appellant to reply upon any matters of law or fact raised by the respondent in his address
S. 354(4)	An appellant is entitled as of right, even when in custody, to be present, if he so wishes, at the hearing of the appeal except, by some curious statutory qualification, where the same involves a question of law solely, in which case he requires the leave of the court
S. 354(5)	Statute provides that an appellant in custody pays all expenses incidental to his transfer to and from the place where the court sits to hear the appeal à however, in practice, his presence is advisable for the due determination of the appeal and so expenses are defrayed out of money provided by parliament
S. 354(3)	The court may make any of the following orders upon hearing of the appeal: (i)             Dismiss the appeal where it finds no sufficient ground for interfering; (ii)            In an appeal from a conviction – a.        Reverse the finding, and set aside the sentence, acquitting or discharging or ordering the retrial of the accused; or b.       Alter the finding but maintain the sentence or with or without altering the finding, reduce or increase the sentence; or c.        Alter the nature of the sentence; (iii)            In an appeal against sentence, increase, reduce it or alter it’s the nature; (iv)            In an appeal from an acquittal, an order refusing to admit a complaint or refusing or dismissing a charge; reverse, affirm or vary the determination of the subordinate court, or remit the matter with its opinion thereon to guide the subordinate court in determining it whether by way of re- hearing or otherwise; and (v)            In an appeal from any other order, alter or reverse it
S. 354(6)	However, in as much as the High Court is empowered to make any amendment and/or consequential order, it may not impose a greater sentence than might have been imposed by the trial court

 

2.       RETRIAL

·       Once an appeal has been decided, and the appellate court comes to the conclusion that the accused person has not had a satisfactory trial, or that his conviction is vitiated by some irregularity, it may order a retrial

·       However, whether or not a retrial should be ordered depends entirely on the circumstances of the case – it will only be ordered where the interests of justice require it and if it is unlikely to cause injustice to the appellant (Muiruri v Republic)

·       The principles that should guide a court on whether or not to order a retrial in a criminal appeal were set out in Koome v Republic as follows:

(i)            In general, a retrial will be ordered when the original trial was illegal or defective;

(ii)            A retrial will not be ordered where the conviction is set aside because of insufficiency of evidence or for the purpose of enabling the prosecution to full up gaps in its evidence at the first trial;

(iii)            Even where a conviction is vitiated by mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered;

(iv)            Each case must depend on its own particular facts and circumstances; and

(v)            An order for retrial should only be made where the interests of justice require it and should not be ordered where it is unlikely to cause an injustice to the accused person

 

CASE	HOLDING
Sinhara v Republic	A retrial should not be ordered unless the appellate court is of the opinion that on a proper consideration of the admissible or potentially admissible evidence, a conviction might result
Machakos Police Station v Nzioki	Where a retrial is ordered, the onus is on the prosecution to commence and finalise the subsequent trial without delay

2.1    ABATEMENT OF APPEALS

·       S. 360 CPC: every appeal that is yet to be determined abates/dies a natural death when the appellant dies

·       However, an appeal from a sentence of a fine can still be continued for the benefit of the appellant’s estate

·       Once it is brought to the attention of the court that the appellant has expired, the proper cause of action is to rule that his appeal has abated (the court should not strike out the appeal as it is not considering the competence of the appeal)

 

2.2    SECOND APPEALS

 

CPC PROVISION	WHAT IT STATES
S. 361(1)	A decision of the High Court on appeal may be appealed against to the Court of Appeal on a matter of law, however no such appeal shall be entertained on a matter of fact (severity being one such fact)
S. 361(2)	On hearing the appeal, the Court of Appeal may set aside or vary the judgment of the courts below for being erroneous in law and may make any order that the said courts could have made. Alternatively, it may remit the case together with its decision on it to either court with the appropriate directions
S. 361(3)	Where the Court of Appeal finds that a party before it had been properly convicted by the trial court, it may either affirm the sentence passed by that court or the first appellate court or substitute for it some other sentence, whether more or less severe as it may think proper
S. 361(4)	Where the Court of Appeal is satisfied that an appellant who was convicted by the trial court of a certain offence could on the finding of the trial court and the High Court have been lawfully convicted of a different offence, it may, instead of allowing or dismissing the appeal, substitute for the conviction entered by the courts below a conviction on that other offence and pass sentence accordingly
S. 361(5)	Even where the Court of Appeal forms the opinion that an appeal could be decided in favour of the appellant, it may nonetheless leave the decisions of the courts below undisturbed and dismiss the appeal if it considers that no substantial miscarriage of justice has in fact occurred
S. 361(6)	Once a second appeal has been filed, the High Court may admit the appellant to bail

 

2.3    BAIL PENDING APPEAL

·       The trial court has discretion to grant bail pending appeal – however, this should only be granted in exceptional circumstances seeing as the appellant is the subject of a valid conviction and so is no longer ‘presumed innocent’

·       Before considering an application for bail pending appeal, the magistrate should ensure that the accused person has in fact lodged an appeal (Anand v Republic)

·       The existence of an appeal, or formal notification of the same, vests the trial court with jurisdiction to hear the bail application

·       However, where the appellant is convicted of an unbailable offence such as murder, he cannot be granted bail under any circumstances (Akuti v Republic)

 

2.4    APPEALS FROM THE HIGH COURT

 

CPC PROVISION	WHAT IT STATES
S. 379(1)	A person convicted on a trial held by the High Court may appeal to the Court of Appeal as of right against conviction where he has been sentenced to death, or to imprisonment for a term longer than twelve months, or to a fine exceeding two thousand shillings
S. 379(b)	An appeal against sentence can only be with leave of the Court of Appeal unless the sentence is one fixed by law
S. 379(a)	As this is a first appeal, it may be mounted on grounds of law or of fact or of mixed law and fact (e.g. the question of whether a person was properly identified as the perpetrator of a crime is mixed law and fact)
S. 379(2)	A person convicted by the High Court and sentenced to a term of imprisonment or a fine that is lower than the set threshold may nonetheless appeal to the Court of Appeal with its leave or with a certificate of the trial judge that his case involves a question of law of great general or public importance sufficient to warrant an appeal

 

S. 379(3)	No appeal is allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by the High Court, except as to the extent or legality of his sentence
S. 379(4)	Except where the appellant has been sentenced to death, a Judge of the High Court or the Court of Appeal, once a notice of appeal is filed, where an appeal to the Court of Appeal has been lodged, grant bail pending the hearing and determination of the appeal, where there are exceptional and unusual reasons appearing in the case

 

3.       REVISION

·       Apart from appeals, which are predicated upon the existence of an order disposing of a matter before a subordinate court with finality, the High Court may also review cases before the subordinate court whether or not concluded, through the avenue of revision

·       S. 362 CPC: in exercising its revision jurisdiction, the High Court calls for and examines the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed

·       The High Court in this instance checks the regularity of such proceedings to determine whether there exist sufficient circumstances entitling it to vary the order of the court below

 

3.1    POWERS OF THE HIGH COURT IN REVISION

·       The High Court gets seized of a revision matter when:

o   Reported to it by a subordinate court of the first class;

o   Moved by any party; or

o   Suo motu once such a matter comes to its knowledge by whatever means

·       The High Court has power to reverse or alter any order, and possesses the powers of a court on appeal, i.e. it may enhance the sentence imposed (S. 364(2) CPC)

·       No order shall be made to the prejudice of an accused person unless he has had an opportunity of being heard in his own defence. However, this does not apply to a situation where the High Court passes a sentence which the subordinate court was required to pass under the written law creating the offence concerned but failed to do so

·       However, no application for revision shall be entertain at the instance or insistence of a party who has a right of appeal from a finding, sentence or order but fails or neglects to exercise that right (S. 364(5) CPC)

·       This power of revision is ordinarily exercised by a single judge, but should it be composed of more than one judge and the court or a deadlock of opinion, the sentence/order of the subordinate court remains undisturbed (S. 366 CPC)

 

3.2    HIGH COURT ORDER TO BE CERTIFIED TO LOWER COURT

·       Once the High Court reverses a case, its decision would be certified to the subordinate court in question, which will proceed to make such orders and correct or amend its record in conformity with the said decision

·       When a case is revised by the High Court it must certify its decision or order to the Court by which the sentence or order so revised was recorded or passed

·       The court to which the decision or order is so certified then makes such orders as are conformable to the decision so certified, and, if necessary, the record must be amended in accordance

CHAPTER 13: INQUESTS

 

·       Whenever there is a sudden and unexplained death, and where a person is missing under circumstances leading to the belief that he may be dead, it is a requirement of the law that an inquiry be especially conducted to determine the said question – i.e. an inquest

·       A person is under an obligation to immediately inform the nearest administrative officer upon becoming aware of a death, or where such person discovers a body under circumstances suggestive that the deceased:

(i)            Has committed suicide;

(ii)            Has been killed by another or by an accident;

(iii)            Has died under circumstances raising a reasonable suspicion that some other person has committed an offence;

(iv)            Or, is missing and believed to be dead

 

1.       INITIATION OF AN INQUEST

(i)            S. 386(1) CPC: the officer in charge of a police station or any other officer specially empowered by the minister in that behalf must immediately inform a magistrate empowered to hold inquests, when he receives such information

(ii)            The officer shall then proceed to the place where the body of the deceased person is, investigate, draw up and send a report on the apparent cause of death to the magistrate à the report is to describe such marks of injury as may be found on the body; and state in what manner, or by what weapon or instrument (if any), the marks appear to have been inflicted

(iii)            In the case of a person missing and believed to be dead, the officer immediately sends to the Attorney-General, through the Commissioner of Police, as report together with details of all supporting evidence relating to the circumstances surrounding the disappearance and the grounds upon which the death of that person is presumed to have taken place

(iv)            To determine the cause of death with precision, the officer shall forward the body to the nearest medical officer for examination

(v)            Upon receiving information about the death and the investigation report thereon, the magistrate may, at his discretion, hold an inquiry to determine the cause of death

 

2.       CONDUCTING AN INQUEST

·       In a measure that is intended to foster accountability, it is mandatory that an inquest be held where a person dies in the following circumstances:

o   While in the custody of police;

o   While in the custody of a prison officer or while in prison; or

o   In the case of a missing person believed to be dead

·       An inquest held by a magistrate is normally either instead of/in addition to any investigation held by the police, and he exercises all powers in conducting it which he would have had in holding an inquiry into the offence

·       Should the magistrate consider it expedient to examine the dead body of a person already interred so as to discover the cause of death, he may cause the same to be disinterred or exhumed for that purpose

·       If (before, or at the termination, of the inquiry) the magistrate forms the opinion that some known person(s) committed an offence, he issues summons or warrant of arrest or takes such other steps as may be necessary to secure attendance to answer the charge whereupon the magistrate commences the inquiry de novo by way of a trial

·       If, on the other hand, the magistrate, at the termination of the inquiry is of the opinion that an offence has been committed by some person(s) unknown, he records his opinion and sends a copy to the Attorney-General

·       Should his opinion be that no offence has been committed, he shall so record and close the inquiry

·       In the case of an inquiry relating to a missing person believed to be dead, the magistrate must, at the termination of the inquiry, report the case together with his findings to the Attorney-General and make recommendations as to whether or not the period regarding the presumption of death should be reduced and if so what lesser period should be substituted for the period of seven years à at the expiry of that lesser period, the Registrar General shall, on the production to him of a court certified copy of the magistrate’s order, issue an appropriate certificate of death

·       The Attorney-General may, at any time, direct a magistrate to hold an inquest into the cause of a particular death and in the case of a missing person believed to be dead give such directions as he deems fit

·       The jurisdiction for the conduct of inquests resides in a magistrate of the first or second class, especially empowered in that behalf by the Chief Justice à The Attorney General cannot, therefore, direct or appoint a judge of the High Court to

conduct an inquest as conceived of in the Criminal Procedure Code and it matters not the standing of the person dead or of the circumstances surrounding such death

·       When an inquiry has been terminated and it appears to the Attorney-General that further investigation is necessary, he may direct the magistrate to reopen the inquiry and to make further investigations, including by having the body disinterred for examination à this does not apply to an inquiry at which a magistrate has recorded his opinion that the offence of murder or manslaughter has been committed by a person

·       Upon receiving a report, the Attorney-General, after considering the recommendations of the magistrate directing to make an order as to the period which should be recorded before the death is presumed, and upon the expiration of this period, the Registrar-General shall be empowered on the production to him by the proper officer entitled to apply for and receive a grant of representation of a Court certified copy of the magistrate’s order, to issue to that person an appropriate certificate of death

CHAPTER 14: HABEAS CORPUS

 

·       Since it is in the nature of law enforcement agencies to employ all methods that curtail the personal liberty rights of persons suspected of having committed crimes, criminal procedural law had provided a means by which the High Court intervenes by requiring that such citizens be set at liberty or be availed in court

·       The High Court does so by issuing directions in the nature of Habeas Corpus – i.e. ‘produce the body’

·       The High Court is given jurisdiction to enquire into the circumstances under which a subject is detained and to ensure his immediate release if his detention is found to be unlawful or unjustifiable

·       This power also allows the High Court to supervise and control the acts of the state in any matter involving the liberty of the said subject

 

1.       DIRECTIONS THAT MAY BE ISSUED UNDER HABEAS CORPUS

(i)             That any person within Kenya be brought up before the court to be dealt with according to law;

(ii)            That any person illegally or improperly detained in public or private custody within Kenya be set at liberty;

(iii)             That any prisoner detained in a prison within Kenya be brought before it to be examined as a witness;

(iv)            That any prisoner so detained be brought before a court martial or commissioners appointed by the President for trial to be examined;

(v)            That any prisoner within Kenya be removed from one custody to another trial; and

(vi)             That the body of a defendant within Kenya be brought in on a return of cepi corpus to a writ of attachment

 

2.       APPLICATION FOR HABEAS CORPUS

·       Governed by the Chief Justice (Directions in the Nature of Habeas Corpus) Rules

·       The application shall in the first instance be made to a judge in chambers ex-parte

·       The evidence in support of the application is by way of affidavit, which in practice is usually sworn by a relative of the person detained

·       If the judge does not summarily discuss the application, he will direct that summons be issued to the person alleged to be detaining the prisoner to come and show cause why the latter should not be released forthwith

·       A judge may, in addition to the above orders, order that the body of a person alleged to be improperly detained be produced before him in court

 

3.       EFFECTIVENESS OF HABEAS CORPUS

·       Habeas corpus enjoys special constitutional protection by reason of Article 25(d) and 51(2), Constitution 2010

·       In majority of cases where authorities have unfairly or unlawfully detained a person, the writ of habeas corpus works to push these individuals to either regularise the detention by preferring charges in an appropriate court or releasing him outright by the time the application comes up for inter partes hearing

·       The applicant must show cause and demonstrate that the ordinary remedies are either inapplicable or inadequate à i.e. where there is an alternative remedy b which the validity of the detention can be challenged, the order will not be issued (Paul Mburu Kamau v Provincial Criminal Investigation Officer Coast Province)

 

CASE

HOLDING

Mohamed v Republic

The purpose of the writ of habeas corpus is to require that a person who claims that he is unlawfully detained should be produced before the Court so as to test the validity of his detention. Should the Court hold that he is being unlawfully detained, it will ensure the release of that person. Furthermore, it is trite law that a writ of habeas corpus is a writ of right granted ex debito justitiae, but it is not a writ of course. It may be refused if the circumstances are such that the writ should not be issued

 END