CRIMINAL PROCEDURE LAW NOTES (Detailed)

COURSE CONTENT

Historical development of criminal procedure, inquisitorial and adversarial systems of trial, structure of criminal courts, role of courts in criminal justice, role of prosecutor in criminal justice; powers to institute and control public criminal prosecutions, private prosecutions, investigation of crime, search and seizure, arrest, interrogation, indictments and charge sheets, arraignment, plea taking, joinder of parties, constitutional protections in criminal trials, nolle prosequi, verdict and judgment, sentencing, forms of punishment, probation,  compensation and restitution, review, appeals, prerogatives of mercy.

TOPICS COVERED:

1.    THE HISTORICAL DEVELOPMENTS OF THE LAW OF CRIMINAL PROCEDURE

2.    SEARCHES

3.    ARRESTS

4.    CHARGES AND INFORMATION

5.    PLEAS

6.    CRIMINAL COURTS AND RELATED INSTITUTIONS

7.    THE NATURE OF CRIMINAL PROCEEDINGS

8.    THE TRIAL PROCESS

9.    THE DICHOTOMY OF THE INQUISITORIAL AND ADVERSARIAL SYSTEMS

10.  JUDGEMENT AND SENTENCING

11.  APPEALS AND REVISION

 

TOPIC 1: THE HISTORICAL DEVELOPMENTS OF THE LAW OF CRIMINAL PROCEDURE

Law as we know it in Kenya today originated from the western world. Our effort to trace the historical developments of the law of criminal procedure will therefore seek to look at these developments in the Western world, both in the continental systems and the Anglo-American systems.

Early private prosecution in the Germanic and Anglo-Saxon Procedure

In these early systems crime was generally treated as private injury. As such, there was no distinction between a civil wrong and a criminal wrong. Similarly,there was no distinction between civil and criminal proceedings. For this reason, the early Germanic procedure and the Anglo Saxon procedure looked upon the redress of most crimes as a private matter to be left to the injured party. But this notwithstanding, limits were already being set and imposed upon the method by which redress might be taken. For instance, private vengeance was forbidden except for very serious offences. For the rest the substantive law provided a complete scale of payments, the amounts of which varied depending on the gravity of the injury and rank of victim. If the injured party was successful in a judicial proceeding against the individual named as his assailant, he would obtain compensation.

In continental Europe, even in case in which private vengeance hard legal sanction, the kings coerced warring parties into submitting their dispute to a tribunal and in such cases the rulers did not act from wholly disinterested motives, since the public authority shared in the mount which had been paid for any injury.

Whenever a person had been injured by the actions of another, the first step in the proceedings was the summons to the accused person. The summons had to be made in the house of the accused and in the presence of witnesses. It named the defendant, stated the complaint against him and ordered him to appear before the court at its next session. If the defendant ignored the summons he would be fined.

The tribunal to which the dispute was submitted was a popular assembly comprised of freemen domiciled in the jurisdiction and who had the rights and duty to attend court.

The judicial assemblies had a division of functions between the presiding officer and the laymen who found judgement. In the earliest law, the judgement finders may have been the whole judicial assembly. Later, they became a committee of notables chosen by the presiding judge or by the parties. After awhile this committee of judgement finders was made a permanent institution and in every county the royal authority appointed a group of notables who were entrusted with the job of judgement finding and held office for life.

These divisions of function between judgement finders and judges arose from the character of the early law. It was a customary law of which the people were the repository. When there was any doubt as to the law applicable to a case, the duty of the presiding judge was not to impose his own view of the law, but to demand what the law was from those who surely knew it, the people.

The proceedings were oral and followed a very formalistic procedure. The accuser in making his complaint was bound to a very strict formula and he accused had also to abide by a very strict formula during his reply. Slips of the tongue and defensive speech were fatal with the natural consequences that a class of lawyers developed to help the parties in making their speeches. Unless the accused wished to be condemned to payment, he had to deny the charges and he would not affirm ad lead maters of excuse.

If the accused made a denial the judgement finders had to hand down their judgment. They did not decide the factual question involved in the dispute, the guilt of the accused, but merely which party could be considered prima facie right in their assertions. Such party was then permitted to confirm his statements by the methods of proof sanctioned by the law.

The methods of proof had very strong religious foundations because people had faith in the interference of God in human affairs. The religious element permeated every method of proof. In accusations for less serious offences, the individual could clear himself by his own oath, thus pledging for the correctness of his assertions, his own salvation.

In the more serious cases, the individual oath was not sufficient. It had to be strengthened by that of persons called compurgators, who pledged their persons and their salvations as security for the correctness of the assertions of their party, in some extra ordinary cases the oaths of the parties with or without compurgators were not sufficient proof. Where a party was a slave or in bad repute, his oath would not be considered trustworthy.

Similarly, a party who was unable to obtain a required number of compurgators would not be trusted. In certain serious offences, such as poisoning, the defendant was not permitted to clear himself by oath. In all these instances, the method of proof was the ordeal. Te party was submitted to such an extra ordinary trial that only the individual in the protection of the gods could undergo successfully. Different kinds of ordeal were used. They included ordeal by boiling water, by hot iron, by water and by consecrated bread. But the most esteemed method of calling upon the direct intervention of God was trial by battle. This was the special judgement of God reserved for free men. If the defendant failed in the ordeal or was beaten in the duel he suffered the penalties fixed by the law for his offence. If the complainant lost,  he had to pay a fine to the public authority.

The procedure was that in these early days was that without a complainant there could ordinarily be no criminal proceedings. Exceptions however existed for cases in which group or official action could be taken without formal accusation by a private complainant. Later the exception became the ulcer and the criminal proceedings began by private accusers become the exception.

The earliest cases of a group action involved cases of capture of the accused in fragrante. An individual caught in the act of committing one of the certain serious crimes or caught after pursuit with the hue and cry, could be executed on the spot. He had broken the peace and was therefore an outlaw, fair game for anybody. Later, public authorities intervened in this lynch justice system and required that the individual caught in the act be taken before the judicial officer. If the accused was a thief, he was brought in with the stolen articles tied to his back. The procedure before the judge in this case was very summary. The captor swore an oath with the compurgators that the accused was guilty of the crime, the accused had no right of defence, no right to clear himself by the ordinary methods of proof. He was merely ordered by the judge to be executed.

The Beginning of Public Prosecution

The concept of public prosecutions borrowed from what the kings previously used to do in certain cases, when kings needed information for governmental affairs or to settle their financial disputes with landowners and churches, they summoned committees of neighbours who were questioned under oath on the matters in dispute. This procedure which was known as the inquisition was introduced into criminal cases. The royal representative who presided over the judicial assembly was given the duty of designating the most trustworthy men of the jurisdiction to undergo questioning. These men were sworn to tell the truth concerning the commission of certain crimes within the community and to reveal those suspected of having committed them. This procedure by presentment and which was a departure from the customary law was confined to serious offences.

The procedure put the accused person in the same position as if a private complainant had lodged formal accusations against him. If he denied the charge, he had to clear himself by the ordinary forms of proof. If he was a free man of good reputation, he could clear himself by oath either alone or with the compurgators depending again on the seriousness of the offence. But where oaths and compurgators were prohibited, the defendant had to submit to ordeal. The mode of proof not available to the accused was the judicial duel, since there was no individual complainant with whom he could fight.

With time, the church started becoming uncomfortable with and hostile to those traditional methods of proof. Finally, their hostility crystallized at the Luteran Council of 1215 in the complete prohibition of trial by ordeal. This was readily accepted and later trial by battle was also banned. The ready acceptability of these changes was due to the fact most honest and respected people such as tradesmen of the rising towns did not relish the possibility of being challenged to duel when they attempted to get justice. Consequently, the period when every able bodied man was accustomed to the use of arms was passing. War then became the business of hired mercenaries.

 

In France, the complete prohibition of trial by battle was done through the ordinance of St. Louis of 1260. An in Germany, it was done through an imperial law of Rudolf Von Hapsburg in 1290. In England trial by ordeals was prohibited by statute of Henry III in 1219. And trial by battle started giving way to trial be presentment jury.

The decline in the use of customary modes of proof coincided with the increasing application of the principle of official as opposed to private prosecution of offences. An investigatory procedure was introduced which could be used even where there was no private complaint. With the concentration of political power in the feudal lords in France and Germany, prosecution by a public official received further impetus. Kings and nobles appointed persons called legists to protect their fiscal and proprietary rights. Later, these legists became prosecutors in criminal cases. The fines and confiscations decreed by the courts for offenses became a source of profit.

In most of these stages there was no separation between prosecutorial and judicial functions. However, the introduction of the presentment jury is the one that led to the separation of the two functions. Initially, the presentment jury would carry out the investigations by questioning people and making accusations against the accused person. The accusation meant that they had already found the accused guilty. And once the jury had made an accusation it could hardly be expected to reverse itself by declaring the accused innocent. When the problem of this procedure was realized attempts were made to remedy it. The first attempt to remedy this situation consisted in the addition of other jurors to the presiding jury, after the accusation was made to determine guilt. Finally, a stature of Edward III was passed in 1350, which allowed the accused person to challenge any member of the trial jury who had previously sat on the presentment jury. This statute definitely crystallised the concept that one jury should make the accusation and a second jury should decide the facts.

 

Roman and Canon Law Influence

These developments were later influenced by Roman and Canon law leading to the development of the inquisitorial procedure. After the recognition of the church by the state in Roman times, the ecclesiastical procedure for the punishment of offences was modelled upon the early accusatory procedure. The accuser had to make out his case but the church could where necessary, make an independent investigation of the charges. The church insisted upon rational evidentiary standards. 

At the end of the 12^th Century, a more effective criminal procedure for the church had become necessary in order to repress the scandalous conditions in the clergy. Several changes were made. For instance, it became the duty of the judge to make secret investigations of the facts in every case in which he received a complaint that an offense had been committed and in every case in which there were public rumours that an individual subject to the ecclesiastical courts had committed a crime. The accused and anyone whom the judge believed to have knowledge of the facts was examined in secret and under oath. The accused had some opportunity to defend himself and depositions of the witnesses were communicated to him. If investigation indicated that he was guilty he could be punished.

Similarly, under Roman law at this stage, a magistrate was authorized to make an objective investigation of a crime without waiting for an accuser. This practice arose in the later Roman Empire after the system of popular prosecution had degenerated into a system of blackmail and such strong measures had been taken against professional accusers thereby discouraging all private complaints. The system spread very fast and became a potent weapon for destroying opponents in the factional politics of the cities. With the abolition of the oath and ordeal,, it became the duty of the accuser to furnish the proofs of his accusation. Offenses were usually brought to the attention of the investigating magistrates by the complaint either of a private individual or of the kings prosecutor. Once the magistrate assured himself that indeed a crime had been committed and the probable author was determined, he could order the accused to be brought before him ether by arrest or summons for interrogations. Interrogations developed as a fine art. The accused was specifically prohibited from consulting counsel in making his answers or at any stage of the proceedings.

The magistrate conducted the interrogation in secret; his clerk being the only other person present. The act of interrogation could be repeated as often as the judge thought necessary.

The next stage would be to summon the witness to the magistrate once more, their earlier statements would be read to them after which they would be asked to confirm whether they wanted to confirm their positions or to make any changes. Next the magistrate brought in the accused in the presence of the witnesses. He then read their statements to the accused in their presence to see whether they would stand by them if confronted by the accused. All this time, the accused would have been kept incommunicado. In most cases witnesses had a strong incentive to stand by their statements since any alterations after the second stage would subject the witness to penalties for perjury. If the evidence reached the quantum set by law the magistrate would convict the accused.

During the entire process, the king’s prosecutor was an active ally of the magistrate and had in fact become attached to the court. The trial was secret. Obviously the entire procedure denied the accused the most elementary rights of defense as we know them today. He was forbidden from having a lawyer. He was not informed of the charges until the case against him was complete. If there were witnesses in his favour, he had to indicate them from the depths of his prison. With all its rigors, this procedure did not provide a satisfactory method of separating the innocent from the guilty.

With time there developed a lot of dissatisfaction. The 18^th century philosophers such as Montesquieu, Beccaria and Voltaire led the onslaught. They indicated clearly the weaknesses in the procedure. To these philosophers of the Age of Reason nothing could be more unreasonable than a procedure which in Voltaire’s words seems to point only to the “destruction of the accused” and is as terrible for the innocent as for the guilty. These philosophers saw the criminal procedure as the most potent instrument for enslaving the individual. This lead Montesquieu to declare that” it is the on the perfection of the criminal laws that the liberty of the individual depends” this sparked off very major reforms in the area of criminal procedure. These reforms are the ones that led to the development of modern rule of criminal procedure.

In England for instance, the inquisitorial system was abandoned and replaced by an accusatorial system. The developments were moving in favour of the accused. He became entitled to a public trial with judgement being base on evidence presented in open courts. He had to be given facilities for defense. He became entitled to silence.

By the time the English common law was being received into the colonies Kenya included, it had already acquired these modern aspects.

 

TOPIC 2: SEARCHES

Introduction

An important tool in the prevention, investigation and detection of crime and the collection and 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; it is the careful examination to find hidden items.

There are tow types of searches recognized in law;

(i)            Search with a Warrant;

(ii)          Search without a Warrant.

 

1.    Search with a Warrant

A search warrant is a written permit issued by a Court or a 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. It authorizes a police officer or a person named within it to search a place, building, ship aircraft, vehicle, box or receptacle for the purpose of conducting an investigation or obtaining evidence. See section 118 of the CPC

A police officer may lay any lawful complaint before a magistrate and may apply for a search warrant as may lawfully be issued against any person. Section 19 of Police Act

The contents of search warrants are set out under section 122 as read together with section 102 of the CPC as follows;

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

(b)   The name or description of the person, place or thing being searched;

(c)    The person to execute the search warrant;

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

The warrants remain in force until it is executed or until it is cancelled by the court which issued it. Section 122(3) of the CPC.

 A search warrant may be directed to one or more police officers of the area within which the court has jurisdiction. The court may also direct that the warrant, where it is necessary to be executed immediately; be so executed by any other person where no police officer is not immediately available. Section 122 read with 104.

The warrant may be executed at any place in Kenya at any time between sunrise and sunset on any day including Sundays or at any time the court authorizes.

A person who owns or resides in a building or place liable to search must allow the executor of the warrant free ingress and egress and afford all reasonable facilities for a search therein. The police officer must produce the search warrant that validates his entry into the building being searched, the police officer may break open any outer or inner door or window of a building where ingress or egress cannot be so obtained. 

The conduct of searches consists a serious intrusion upon the privacy and property of a citizen. The English Judge, Lord Denning in the case of Chic Fashions (West Wales) Ltd Vs Jones [1968 ] 2QB 299 first asserted that every man’s house is his castle, meaning in principle a constable (policeman) is never in principle allowed to enter and search a man’s house. However there are certain exceptions to this rule. He stated;

[N]o man’s house is to be used as a hiding place for thieves or receptacle for stolen goods. If there is 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 authorizing a constable to enter the house and seize the goods.

The privacy of one’s person and home is a fundamental right under Article 31 of the Constitution. Under the constitution every person has the right to privacy. However this right is not absolute. The law indeed provides for the use of search warrants while in reality amount to a judicial certification of derogation to an individual’s right to privacy. As such a balance must be struck between individual rights and those of the society. For this reason, the power to issue warrants is only vested in the court or the magistrate.

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. This was reflected in the case of Vitu Ltd Vs The Chief Magistrate of Nairobi and 2 others HC Misc Application No. 475 of 2004 where Osiemo J held that 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.

Where a police officer enters a house with a search warrant he may not only seize goods in respect of the warrant, but also any other good which he believes on reasonable ground to be material evidence on a charge of stealing or receiving against the person in possession of them or anyone associated with him. This was the holding in the English case of Pringle Vs Bremmer and Stirling [1867] 5 Macph 55.

In Crazier V Cundey 108 E.R 49, it was held that a constable could properly seize other goods not mentioned in the warrant of they afforded useful evidence as to substantiate the charge for which the warrant was issued.

Searches on a person

A person may be searched upon reasonable suspicion of concealing about the person an article for which search should be made. If that person is a woman, the search must be made by another woman with strict regard to decency.

The Evidence Act also contains provisions in aid of investigations. Where it is proved on oath to a judge or magistrate that in fact or according to reasonable suspicion, the inspection of any banker’s book is necessary or desirable for the purpose of any investigation into the commission of an offence, the judge or magistrate may by warrant authorize a police officer or another person named therein to investigate the account of any specified person in any bankers book. Such warrant is sufficient authority for the production of any banker’s book as may be required for scrutiny by the officer or person named in the warrant. The officer may take copies of any relevant entry or matter in such banker’s book. Section 180 (1) of Evidence Act.

However a banker is not bound to disclose the status of a customer’s account except on reasonable ground such as where the disclosure is under compulsion by law or there is a duty to disclose or where the interest of the bank requires the disclosure or the discloser s done by the express or implied consent of the customer. This was the holding in the High Court in Erastus Kibiti Stephen Vs Euro Bank Ltd and Another [2003] e KLR (Miscellaneous Criminal Application No. 9 of 2002)

 

Professional Privilege

A search, even with a warrant may not be directed towards material which cannot be legally seized. Such includes correspondence between an accused person and his spouse, lawyers and doctors. This applies to documents which are in the possession of a person himself and not a suspect or a third party. The reason is that such persons have a right to refuse to produce the documents because they are privileged. The right is lost if the person is suspected to have participated in a criminal act. This means that a lawyer’s files can be searched and examined if the person is party to the criminal acts. Consent is another waiver to this rule.

Can a Search warrant be issued more than once?

In Butler Vs Board of Trade [1971] Ch 680, Goff J, expressed himself as;

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 daytime. 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 authorizes 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 authorize a second entry”

2. Searches without a Warrant

A police officer or other persons authorized in writing in that behalf 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 anything stolen or unlawfully obtained may be found or where there is reason to suspect that it has been used or employed in the commission or to facilitate the commission of an offence.

Any stop, search or detention thereof should be conducted by an authorized person contrary to which an accused may be acquitted. This was the holding in the case of Atibu Juma Vs Republic [1983] e KLR.

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 cognizable offence.

Where a person in authority over certain goods or a place to be searched gives consent to search, a 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. It would also appear that if the consent to search is procured by trickery, the ensuing search is not thereby invalidated.

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 cognizable offence is in any premises, he may demand that the person residing in or being in charge of such premises allow him free ingress thereto and afford him all reasonable facilities for a search therein. Where, notwithstanding notification of his authority and purpose, ingress cannot without unreasonable delay be so obtained, the officer may without warrant, enter such premises and search therein and may if necessary break any window or door. Section 29 of the CPC.

The same “delay principle” would apply 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 somewhere. Such would also be the case where there is danger the goods to be searched would pose to the public. In these circumstances it would be permissible to conduct a search without a warrant.

An officer may stop, search and detain any vehicle or vessel which he has reasonable cause to suspect is being employed in the commission of, or to facilitate the commission of an offence absent a warrant.

 

TOPIC 3: ARRESTS

Introduction

As it is in the nature of persons who have committed or are suspected of having committed offences to seek to elude the criminal process by which they may be adjudged guilty and punished accordingly, a lawful mechanism has to exist by which such persons may be apprehended, restrained and brought before court to be dealt with in accordance with the law. That mechanism is arrest. An arrest is a restraint upon a person’s liberty and may take the form of physical confinement.

General provisions relating to Arrests

In making an arrest, the policeman or nay 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. Where a person forcibly resists the endeavour to arrest him or attempts to evade the arrest, the person effecting the arrest may use all means necessary to effect the arrest.

The force applied to effect the arrest or to counter any attempt to resist apprehension must, however be reasonable. Section 21 of CPC

In essence, the person effecting the arrest:

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

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

Pursuant to a warrant, the person effecting an arrest may enter any place where the person to be arrested is hiding or is reasonably suspected to have entered and concealed himself an demand that the occupiers of that house allow him free ingress and reasonable facilities for the search. Section 22(1) of the CPC

Where ingress 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 a he has a warrant. Even without a warrant, he may still so break so as to pre-empt the escape of the person that would be afforded by delay in obtaining a warrant. Similarly, the person effecting an arrest is authorized to break out of any house or lace in order to liberate himself or any other person who having lawfully entered for the purpose of making an arrest, is detained therein.

The breaking action is only valid where the person effecting an arrest:

(i)          Has made notification of his entry;

(ii)         Has stated his purpose;

(iii)        Has made demand of admittance

(iv)        Has been denied or is unable to gain admittance.

Where a 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. Section 22 (2) of CPC.

The person arrested should not be subjected to more restraint than is necessary to prevent his escape.

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. Section 25 of the CPC

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. Section 26(1) of the CPC

The State is fully immunized from liability for any loss or damage suffered by any person by reason of the detention of aircraft, vessel or vehicle under the foregoing circumstances as such person is not entitled to damages or compensation.

In case a search uncovers offensive weapons concealed in 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. Section 28 of the CPC.

Arrests may be of two kinds:

(i)          Arrests without a warrant;

(ii)         Arrests with a warrant.

 

1.    Arrests without a warrant

There are instances when an arrest may be lawfully effected without a Court order or direction. Under Section 29(1) of the CPC they include te apprehension of persons who:

A police officer may, without an order from a magistrate and without a warrant, arrest—

(a)	any person whom he suspects upon reasonable grounds of having committed a cognizable offence;
(b)		any person who commits a breach of the peace in his presence;

 

(c)	any person who obstructs a police officer while in the execution of his duty, or who has escaped or attempts to escape from lawful custody;
(d)		any person in whose possession anything is found which may reasonably be suspected to be stolen property or who may reasonably be suspected of having committed an offence with reference to that thing;

 

(e)		any person whom he suspects upon reasonable grounds of being a deserter from the armed forces;
(f)	any person whom he finds in a highway, yard or other place during the night and whom he suspects upon reasonable grounds of having committed or being about to commit a felony;

 

(g)	any person whom he finds in a street or public place during the hours of darkness and whom he suspects upon reasonable grounds of being there for an illegal or disorderly purpose, or who is unable to give a satisfactory account of himself;
(h)	any person whom he suspects upon reasonable grounds of having been concerned in an act committed at a place out of Kenya which, if committed in Kenya, would have been punishable as an offence, and for which he is liable to be extradited under the Extradition (Contiguous and Foreign Countries) Act (Cap. 76) or the Extradition (Commonwealth Countries) Act (Cap. 77);

 

(i)	any person having in his possession without lawful excuse, the burden of proving which excuse shall lie on that person, any implement of housebreaking;
(j)	any released convict committing a breach of any provision prescribed by section 344 or of any rule made there under;

 

(k)	any person for whom he has reasonable cause to believe a warrant of arrest has been issued.

It is clear from the aforesaid provision that a police officer is entitled to effect an arrest without a warrant, so long as he has reasonable grounds for entertaining suspicion at that material time. Subsequent events may show the officer wa sin error at the time but the arrest will not thereby be rendered unlawful. This has been the law for more than a century as may be seen from the case of Lord Diplock in the case of Dillon Vs O’Brien and Davis [1887]16 Cox CC 245,

     “In the case of an arrest, reasonable grounds for belief in guilt at the time of arrest are sufficient justification, though subsequent information or events may show those grounds to be deceptive”

An officer in charge of a police station may also arrest without a warrant any suspicious self concealers; being 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. Section 30 of the CPC

Incase the 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. Section 31 CPC

A private person can arrest one who commits a cognizable offence or one he reasonably suspects to have committed a felony. This is a citizen’s arrest.

 

2.    Arrests 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 in relation to an offence committed by him or for a witness who fail to appear in Court to give evidence. Warrants of arrest are issued by Court for witnesses who are bonded but fail to appear in Court to give evidence and for those whose accused persons who have jumped bail or absconded . They are directed to a police officer or any other person who will effect arrest.

Section 300 of the CPC states that if summons have been issued directed at a 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. If the accused doe not appear at the time and place appointed in 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 and unless a complaint has been made upon oath. Section 101.

The court may issue a warrant of arrest for an accused who fails to appear for a mention as happened in the case of Hakim Alsafa Vs Republic [2007]e KLR (Miscellaneous Criminal Application No. 301 of 2007]

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. Issuance of warrants involves exercise of judicial discretion. As such, a warrant of arrest should not be issued unless the offence in question is indictable or is punishable with imprisonment. Further the court ought to be satisfied that the person named in the warrant would not voluntarily appear in attendance as required hence the necessity of a warrant.

Validity of warrants;

Every warrant must bear;

(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 to whom it is directed;

(iv)        Must bear the offence the person is charged with;

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

(vi)        Must order the person to whom to whom is directed to apprehend the subject for the purposes 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.

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. Section 102 (3) CPC.

A warrant of arrest may be executed at any place in Kenya. Section 109 CPC. 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 magistrate in whose local lifts of jurisdiction it is to be executed. The receiving magistrate will then endorse it and cause it to be executed. Section 110 CPC.

 

Irregularities and defects in a warrant

Under the CPC, any irregularities or defects in a warrant be they in form or substance as well as any variance between it and a written complaint or between the warrant, the complaint and the prosecution evidence at the trial do not vitiate or otherwise affect the validity of any proceedings at or subsequent to the hearing of the case. This was so held in the case of James Maina Njuguna Vs Republic [2008] e KLR (Criminal Appeal No. 43 of 2007. Where an appeal on the ground that the mode of arrest had no nexus to the crime was rejected with the Court saying the evidence adduced was consistent with the warrant.

If it appears to the Court that the variance is such that the accused has been thereby deceived or misled, it may merely adjourn the hearing of the case to a future date.

Can a Warrant of Arrest be used more than once?

The CPC is silent on this issue. In the case of Dickenson Vs Brown [1974] 1 Esp 218 the Kings Bench 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 instrumentality of an arrest warrant were it to be executed repeatedly and would cause oppression.

 

TOPIC 4: CHARGES AND INFORMATION

Institution of Criminal Proceedings

Proceedings may be instituted in court either by the making of a complaint or by the bringing before a magistrate of a person who has been arrested without a warrant. Section 89(1) of the CPC.

A person who believes on reasonable and probable cause that an offence has been committed by another person may make a complaint thereto a magistrate having jurisdiction. Section 89(2) of the CPC. 

The complaint may be written or viva voce. Where it is viva voce, it is reduced in writing by the magistrate and in either case both the magistrate and the complainant sign the complaint. 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. If the magistrate is of the opinion that a complaint or formal charge made or presented does not disclose an offence, he may make an order refusing to admit the complaint and must record his reasons for that.

Once he has received and signed the charge, the magistrate my 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. Section 90 (1) CPC.

A summons or warrant may be issued on any day including a Sunday. The facts that there is a different civil 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 fund to have also contravened the criminal law cannot be charged with a criminal offence. This was the holding in the Kinyanjui Vs Republic [2004] KLR 364. Section 193A has introduced the concurrent existence of criminal and civil proceedings in the following terms:

Notwithstanding the provisions of any other law, the facts that any matter in issue in any criminal proceedings is also directly or substantially in issue  in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings.

The Charge Sheet

The terms Charge and information are used interchangeably to refer to the statement of the offence or offences which a person is accused of and the particulars thereof. The charge states concisely the offence which the accused person is alleged to have committed. It is the process by which the accused and the magistrate or judge is informed of a suspected offence.

No case may proceed without a charge. In the Ugandan case of Martino Judagi and Others Vs West Nile District Administration [1963] E.A 406, Udo Udoma CJ held that the failure to frame a charge in the subordinate court was a fundamental and fatal mistake. The trial was declared a nullity and a retrial ordered. So long as a charge contains a statement of a specific offence or offences with which the accused person is charged, together with such particulars as may be necessary to give reasonable information as to the nature of the offence, it is deemed to be sufficient. Section 134 CPC

Joinder of Counts

Joinder refers to the action of charging together.

Joinder of counts refers to the charging together of a number of offences be they felonies or misdemeanours in the same charge sheet or information. Joinder is permissible if the offences charged are founded on the same facts or form or are part of series of offences of the same or a similar character. Section 135 (1) of the CPC.

From a practical standpoint joinder of counts is both convenient and expedient in that it saves times and avoids multiplicity of trials revolving around the same set of facts. It is also advantageous to the accused in that it not only saves him legal cists but also affords him the opportunity of serving concurrent sentences in the event of conviction In Ngibuini Vs Republic [1987] KLR 517, the Court expressed the view that where there is a single complex of offences connected in kind and time it is undesirable through 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.

The rule is that where an accused person is alleged to have committed more than one offence, he may be charged in the same proceedings with all the offences. This, however should not embarrass the accused person or render his appeal (if any) nugatory or a waste of Court’s time. In Godfrey Mandengwa Vs Republic [2004] e KLR (Criminal Application No. 627 of 2004), the Court of Appeal stated that the 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.

Where offences which are not founded on the same facts or do not form part of series or similar character are charged in the same charge sheet or information, the same will be ruled improper as it amounts to a misjoinder.

In the case of Republic Vs  Gulamhussein Jetha, [1946] 13 E.A.C.A 107, the appellant was convicted of one count for obtaining money by false pretences ad 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^th June and that on July 8^th 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 stolen. 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.

In Joseph Vs Republic, [1954] 21 E.A.C.A 311, the appellant was charged on three counts wounding X with intent to cause grievous bodily harm, malicious damage to property and obstructing  a police officer in the course of his duty. The first count contained no words to indicate that the alleged wounding with intent was in any way connected with the third count of attempting to resist the arrest. It was clear from the evidence that the three offences occurred in a series of attempts to resist arrest. This was not clear from the charges. The Court of Appeal considered that the third count was wrongly included in the charge. Hence there was a misjoinder.

Where before a trial upon information or at any stage of the trial, 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 information, or that for any other reason it is desirable to direct that the accused should be tried separately for any one or more offences charged in an information, the Court may order a split trial also known as separation of trials respecting any count of counts of information. Section 275 (4) of the CPC.

In Mongella Vs Republic [1934] 1 E.A.C.A 152, it was held to be undesirable to charge an accused person on more than one charge of murder. The Court also said, in the case of Velezi Kashilzs Vs Republic [1954] 21 E.A.C.A 389, that 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.

Joinder of Persons

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

The following 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 twelve 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 whom possession or retention of the said property has been transferred;

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

In Republic Vs Ndungi and others [1906-08] 2 EALR 85, 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.

In Republic Vs Hassan wa Saleh and Another [1906-08] 2 EALR 105, it was held that two persons it was held that two persons accused of raping two different women separately albeit at the same time and place could not be tried at the same trial, the transaction not being the same.

In Malebe Vs Republic [1982] KLR 320, the three appellants faced separate counts of stealing by servant in once 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 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.

Rules for the framing of charges

The basic principle of law governing the framing of charges is that an accused should be charged with an offence known to law and this has its foundation in the Constitution. The offence charged should be disclosed and stated in a concise, clear and unambiguous manner, in ordinary language that eschews legalese so that the accused may be able to understand it and plead thereto from a point of knowledge. It will also enable an accused person to prepare his defence to the charge. This principle was re-stated in Sigilai and another Vs Republic [2004] 2 KLR 480.

Statement of offence

A count of charge or information must commence with a statement describing the offence charged, called the statement of offence. The statement of offence should offer a brief description of the offence in ordinary language 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 the courts have taken the view that where the offence 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. The correct procedure is to specify in the statement of the offence, not the section that defines the offence but the one that prescribes the punishment thereof. In Oremo Vs Republic [1990] KLR 290, a conviction was quashed where the accused was charged with a non-existent offence.

It is essential and imperative that the charge should clearly set out the offence as was stated by the Court in Stephen Chege Vs Republic [1983] e KLR,

The Court should see to it that the accused person fully understands the charge being read to him and to this end, the record should show that the offence with which an accused person is being charged has been fully explained to him with this requirement becoming more critical where the offences are serious ones. One way of ascertaining this, is by ensuring that the charges are written out by the magistrate himself.

In Republic Vs George Samuel Sowe, the Court said,

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.

As a measure to aid or increase clarity and banish confusion, the court suggested quite properly in Mwangi and another Vs Republic [1988] KLR 803, that it is desirable 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 to defend himself against.

Particulars of offence

Particulars if the offence should be given. These should be in ordinary language. Technical terms should be avoided. The essential ingredients of the alleged offence such as the date, place, time and circumstances in which it was committed must be stated,

In the case of Tembere Vs Republic [1990] KLR 353, the accused was charged with 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 result the accused did not validly plead guilty to the charge of handling.

In Wilson Vs Republic [1955] 22 E.A C.A 372, it was held that the day to be stated in a charge of homicide should be the day in which the wrongful act was committed and not the death occurred.

In the case of Republic Vs Loibori [1949] 16 E.A.C.A, the charge gave no particulars as to the place of the offence except to state that it occurred in the Northern Province of Tanganyika. It was held that a reference to what may be a vast territorial area can hardly be said to indicate to an accused person with reasonable clearness the place at which it is alleged the committed the offence.

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

Forms

The second schedule to the Criminal Procedure code contains forms setting out the manner in which various offences should be charged as to guide to the manner in which offences should be stated in informations. 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 the offence and particulars of offence may be varied according to the circumstances of each case.

The use of the forms available in the Second Schedule is expressly in obligatory terms and any variation from the wording of these forms may be, in certain circumstances fatal. Thus for instance, the names of all accused persons should be given in full and not merely, for example, “X and 6 Others” This was the holding in Republic Vs Yonasani Egalo and others 9 EACA 65

Counts

When more than one offence is charged in a charge sheet or information a description of each offence so charged must be set out in a separate paragraph of the charge or information. Each of these paragraphs is called a count.

Where a charge or information contains more than one count, the counts must be numbered consecutively.

It is unnecessary in a count, charging a statutory offence to negative any exception or exemption from or qualifications to the operation of the enactment creating the offence.

In Mwaitige Vs Republic [1961] E.A 470, 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 particulars of the alleged statutory offence alleging contravention of a certain Agricultural Order, 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.

Duplicity

Any count that charges within it more than one specific offence is said to be bad for duplicity. It is a fundamental mistake and not normally curable. The reason for this is that when a charge is duplex and an accused person goes through a trial, the fairness of the process is fundamentally compromised as it is not clear to him what the exact charges that confront him are. As a result, he may not be able to prepare a proper defence and this is clearly prejudicial and may amount to failure of justice.

In the case of Laban Koti Vs Republic [1962] E.A 439, 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.

In Omboga Vs Republic [1983] KLR 340,  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 possible know what offence exactly he is charged with.

In the case of Saina Vs Republic]1974] E.A 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 the charge was an incurable illegality.

The Court in Republic Vs Sowedi Kauta [1933] 19 KLR 105, held that a charge alleging the murder of two persons on in count was bad in law. There should have been two separate counts.

In the case of Republic Vs Mongella, the accused person was convicted of the murder of six persons by wilfully setting fire on the hut which they were asleep. The charge of murdering the six was laid in a single count. It was held he should have been charged with six separate counts.

In the case of Nzioka Vs Republic, [1987] KLR 613, the appellant was convicted and sentenced for the offence of causing death by dangerous driving. Part of the charge read:

     “….drove the said vehicle on the said road recklessly and at a speed or in a manner which was dangerous to the public”

On appeal it was argued that the charge was bad for duplicity in that whereas the relevant position of the law created several offences, it was not specified which one appellant had committed. The court held that it is of paramount requirement of justice that an accused person must know precisely what he is charged with and where a statutory provision creates more than one offence in a section, the proper and safe method of preferring a charge under such a enactment is under separate counts. The charge in this case made no sense in that by the use of the word “and” in its particulars, it conjoined to methods of committing the offence under the Traffic Act (Cap 403 Laws of Kenya) while the third method was disjoined in the particulars by the use of the word “or” all the while charging the three method under one count.

ln contrast to the above line of cases, the court in Mwangi v Republic [1974] EA dealt with a situation where the accused was charged with being in possession of fire arms and ammunition in the same count. The Court found it not be bad for duplicity because the two offences were so intimately linked to each other that they could not be separated

Overloaded Charges;

A charge is said to be over1aded when multifarious counts are brought against an accused person involving it different aspects of the Criminal Law as was stated in the case of Kinyanjui v Republic. [2004] 2 KLR

The test to be applied to determine whether a charge is overloaded is whether or not the counts preferred against the accused person prejudice or embarrass him in the presentation of the defense by their sheer numerosity.

 A case on point is Ochieng’ vs Republic [High Court Criminal Appeal No. 10 of 1985, where 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 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.

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. It may also exercise its discretion under section 87(a) of the Criminal Procedure Code and withdraw the extra charges. The person is then discharged in respect of the withdrawn charges but can be charged again at a later date.

 
Further, as the Court suggested in the case of Ganzi and 2 others vs. Republic [6 ULR 161, that where a person faces a number of capital charges in the same information it is preferable to proceed with one only 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 has been convicted of several capital charges, it is a good practice to pass the sentence of death on one count only and leave the sentences in other charges in abeyance. The reason for this, obviously, is that a convict cannot suffer death more than once.

Defective Charges

Every objection to information 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 latter. Even then, once the rules of framing of charges have been generally observed the charge or information should not be open to objection in respect of its form or contents.
The general rule is that no objections are allowed in case of any defect in form far as charges are concerned. ln fact, section 90(2) of the Criminal Procedure code states that the validity of proceedings undertaken in pursuance of a complaint charge shall not be affected either by a defect in the complaint or charge or by 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 order unless the defect has occasioned a failure of justice or has prejudiced the accused.

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 information as framed does not disclose an offence so that the magistrate is invited not to admit the same under section 89(5) of the Criminal Procedure Code.

Amendment of Charges

Where, at any stage of a trial before the close of the case for the prosecution, it appears to the Court that the charge is defective, either in substance or in form, the Court may make such order for the alteration of the charge, either by way of amendment of the charge or by the substitution or addition of a new charge, as the Court thinks necessary to meet the circumstances of the case.

Where a charge is so altered, the Court must call upon the accused person to lead to plead to the altered charge. The accused has a right to demand that any or all the witnesses who had already testified be recalled 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 witness on matters arising out of further cross—examination.

In Mohammed Bashir Republic [1950] 24 KLR, the appellant was charged with attempted murder, disobedience of lawful orders, threatening injury to a public servant and obstructing a Produce Inspector in the course of his duty. All the charges were defective in that they contained no particulars of the offences charged. The magistrate started the hearing but at some point changed the murder charge to that of: assault. The fourth charge was withdrawn. The accused was convicted of the three remaining charges but had not been asked to plead to the charge of assault. The High Court declared the trial a nullity.

TOPIC 5: PLEAS

1.1.Introduction.

A plea is a formal statement made by or on behalf of a person charged with an offence in a law court.

The basis of plea taking in Kenya is section 77 of the constitution of Kenya, 1963 (now under Article 50 of the Constitution); “every person who has been charged with a criminal offence shall be presumed innocent until he is proved or has pleaded guilty”.

According to Section 77 (2) (b) of the repealed Constitution,  “an accused person shall be informed as soon as is reasonably practicable in a language that he understands and in detail, of the nature of the offence with which he is charged”. Sub-section 2(c) of section 77 states that, “every person charged with a criminal offence shall be pertained to defend himself before the court in person or by a legal representative of his choice”.

 Nature of Pleas

Section 207 of the Criminal Procedure Code provides that the substance of the charge shall be stated to the accused and he shall be asked whether he admits or denies the same. If the accused admits the charge, his admission shall be recorded as nearly as possible in his own words and the court shall convict him and record his conviction.

Section 207(3) of the CPC; if the accused person does not admit the truth of the charge, the court shall proceed to hear the case. If the accused person refuses to plead, the court shall order a plea of “not guilty” to be entered for him.

Section 207(5) CPC state that if the accused person pleads that he has been previously convicted or acquitted on the same facts of the same offence; or that he has obtained the President’s pardon for his offence, the court shall first try whether the plea is true or not, and 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 shall be required to plead to the charge.

See(Koech vs. R) whereby it was held that the admission of all facts in the charge is not necessarily a plea of guilty.

If an accused admits the assertions of fact but proffers an explanation, the accused’s statement should be treated as a plea of “Not guilty” and then the prosecution will be required to lead all their evidence.

 

Plea of guilty

This is a formal admission in court as to the guilt by an accused person. It must be unequivocal for it to be valid.

In R v. Yonasni Egalin[1942] it was observed that, “Its desirable not only that every constituent of the charge should be explained to the accused but also that he should be required to admit orally every constituent of the offence charged. If the accused is not represented care must be taken that he fully understands the elements of the crime to which he is pleading guilty.”

section 281 of the Criminal Procedure Code, if an accused person pleads guilty, the plea shall be recorded and he may be convicted thereon.

Unequivocal Plea

A plea is said to be unequivocal when it has been properly taken in accordance with the laid down procedures of the law.  It binds on an accused person.

The principles governing the taking of an unequivocal plea were set out in the case of Adan vs.R (1973) EA 445 as follows;

1.    The accused person must be fit to plead

 

The court is required to take steps to ensure that the accused is fit to plead in that the accused is not deaf or mute and if he is so the court should ensure that he is made to understand the progress of the proceeding

 

In R vs. Bubu (1959), where an accused is deaf or mute first of all the court should find whether the accused can be made to understand substantially the whole of proceedings before proceeding with the case

 

2.     The accused must plead directly not through an advocate

 

It is regarded both in English Common law and in Kenya that the accused must plead to the charge himself.

In Manager Tank Building Contractors vs. R. [1968] it was held that “it is only in cases where the attendance of an accused is expressly dispensed with that an advocate is entitled to plead for him. In all other cases only the accused can plead to the charge brought against him.”

 

3.    The charge must be read and explained to the accused

Section 207 (1) of the Criminal Procedure Code requires that the substance of the charge shall be stated to the accused person by the court and he shall be asked whether he admits or denies the truth of the charge

In the High Court it  is required that the information be read over to the accused by the registrar or other officer of the court and to be explained if need be by the officer or interpreter before the accused is asked to plead.

 

 

In Adan v. R (1973) EA 445 it was held that the charge and all the essential ingredients of the offence should be explained to the accused in a language he understands.

 

4.    The charge or information must not be defective

The charge sheet must be properly drawn as to disclose the offence charged. A purported plea of guilt to a defective charge is not a plea at all and a conviction on such a plea shall be quashed. See Sections 134 – 137 Criminal Procedure Code.

 

5.    The facts must also be read to the accused

 

The prosecutor is required to read the facts of the case before asking the accused to plead. It is not enough that the facts are stated in the charge sheet. This helps to guard against causing the accused to plead guilty to wrong facts.

 

The accused must admit to both the charge and the facts read to him before he can be said to have pleaded guilty. Such admitted facts must disclose and or reveal the offence charged. He must admit all ingredients of the offence charged both the actus reus and the mens rea.

 

 

6.     The plea of the accused must be properly recorded

All an accused person says in answer must be recorded as clearly as possible and such record must show the language used and whether or not there was any interpretation from one language to another and if so the name of the interpreter.

The plea must be taken by a competent judicial officer not just a court clerk.

 

In cases where the accused disputes the facts of the charge, a plea of not guilty must be entered.

 

Where there is more than one accused jointly charged, the plea of each shall be recorded separately, and if a charge or indictment contains several counts, the accused must be asked to plead to them separately.

 

Plea of not guilty

In a plea of not guilty the accused person controverts the existence of every fact essential to constitute the given charge and thereby puts in issue every essential element of the offence charged.

Section 208 of the Criminal Procedure Code; if the accused person pleads not guilty, the court shall proceed to hear the complainant, witnesses and other evidence if any.

 

A plea to the jurisdiction of the court

Each court has its jurisdiction set out either by the constitution or the statutes. Section 77(1) of the Constitution, 1963; unless a charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.

A court that has no jurisdiction to try the case cannot take the plea of an accused and cannot therefore be arraigned by such a court.

See R v.Ambari Juma (1959)

An accused is at liberty to plead that the court has no jurisdiction to try him.

 

Change of Plea

The accused may change the plea of not guilty to that of guilty in the course of a trial.

 

It may also be changed after the conviction but before sentence.

In Mwakera v.R(1982-88) I KAR 1043, the appellant had been allowed to change her plea of guilty to one of not guilty after conviction but before sentence. The court held that a plea of guilty may be changed on reasons to be recorded after conviction but before sentence.

 

In Kamundi v. R (1973) EA 540, the court held that, there are no provisions regarding change of plea, there are equally no provisions to prevent a change of plea before the court becomes “functus officio”.

Therefore, when a court has determined a case by passing a sentence it is functus officio and has no power to re-open the case either of its own motion or on an application of the prosecution or defence.

 

Plea bargaining

Plea bargaining is simply an agreement between the defendant (with advice of his advocate) and the prosecution, that in exchange for a plea of guilty he will receive favourable consideration by the court. i.e. being charged with a less serious crime resulting to a lighter sentence.

It helps the criminal justice system to clear and decide cases faster, thus avoids overcrowded court docks and backlog of cases and saves time on prolonged litigation.

 

On the other hand, the defendant even though innocent may plea guilty for fear of harsh sentence. Also, the judicial system may be viewed as soft on hardened criminals who plead guilty for lesser offences in order to evade rigorous punishment.

Plea bargaining is not practised in the Kenyan Legal System.

 

TOPIC 6: CRIMINAL COURTS AND RELATED INSTITUTIONS

Introduction

A person suspected of having committed a crime is tried in the courts which have been established under the Constitution or other legislations. It is the mandate of the courts to take an accused person through the criminal trial and to determine whether or not the accused is guilty of the offence charged. An accused person is usually charged in the lowest court having jurisdiction to try the offence.

The judiciary consists of the judges of the superior courts, magistrates, other judicial officers and staff. The judiciary is viewed as the third arm of the government established for purposes of interpreting laws and adjudicating over and resolving disputes between citizens and between citizens and the state.

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. In Kenya, courts are established in a hierarchical fashion beginning with Supreme Court at the apex going all the way down to the subordinate courts presided over by District Magistrates with each court exercising such powers and possessing such competences collectively referred to as jurisdiction as donated by various statutory provisions. Generally speaking, the powers and competencies in both in terms of the territory and subject matter expand the higher a court sits in the hierarchy or pecking order.

HIERACHY OF COURTS IN KENYA

SUPREME COURT
COURT OF APPEAL
HIGH COURT
CHIEF MAGISTRATES COURT
SENIOR PRINCIPAL MAGISTRATES
PRINCIPAL MAGISTARTES COURT
SENIOR RESIDENT MAGISTRATES
RESIDENT MAGISTRATE’S COURT
DISTRICT MAGISTRATE’S COURT

 

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. It matters not high in authority in the hierarchy a court lies or how willing the parties before it may be to submit to such pretended jurisdiction, it is all null.

The 2010 Constitution sets out the judiciary and the current court structure. The Constitution categorises the courts into superiors and subordinate courts.

                                                            SUPERIOR COURTS             

Under Article 162 (1) of the Constitution, the superior courts are the following;

(a)   The Supreme Court;

(b)   The Court of Appeal;

(c)    The High Court;

(d)   A court having the status of the High Court and established to deal with disputes relating to employment and labour relations.

(e)    A court having the status of the High Court and established to deal with dispute relating to the environment and the use and occupation of and title to land;

Subordinate courts

Article 162 (4) of the Constitution provides that subordinate courts are the courts established under article 169 or by Parliament in accordance with that Article.  Under article 169 of the constitution, the following courts are set out as subordinate courts;

(a)   The Magistrates Courts;

(b)   The Kadhis Courts;

(c)    The Courts Martial and

(d)   Any other court or local tribunal as may be established.

Parliament is mandated to enact legislation conferring jurisdiction, functions and power on these subordinate courts.

The superior courts

1.    The Supreme Court

As noted above the Constitution under Article 162 (1) establishes the superior courts as the Supreme Court, the Court of Appeal and the High Court. Thus we first have the Supreme Court which is established under Article 163. It comprises of the Chief Justice who shall be the president of the Court, The Deputy Chief Justice who shall deputise for the Chief Justice and be the Vice President of the Court and Five other Judges. The  court is properly constituted if its composed of five judges which means that the Supreme Court when determining a matter that is before it is expected to have a bench of five judges. The Supreme Court has exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of the President arising under article 140 (that is arising out of the presidential election).

The hearing of presidential election petitions appears to be the only original jurisdiction that the Supreme Court has. Discuss the Cord petition. The Supreme Court also has appellate jurisdiction and thus can only hear and determine appeals from the Court of Appeal and any other court or tribunal as may be prescribed by national legislation. Appeals shall lie from the Court of Appeal to the Supreme Court as of right in any case involving interpretation or application of the Constitution and in any other case in which the Supreme Court or the court of Appeal certifies that a matter of general public importance is involved.

The Supreme Court is also mandated to give advisory opinions with reset to matters touching on the County government.

The decisions of the Supreme Court shall bind all other courts. This entrenches in the Constitution the doctrine of stare decisis. This is significant since trial courts will have to follow the determinations of the Supreme Court on critical matters touching on criminal procedure.

2.    The Court of Appeal

The Court of Appeal is established under Article 164. The Constitution provides that it shall have no fewer than 12 judges. The jurisdiction of the Court of Appeal is to hear appeals from the High Court and any other court or tribunal as prescribed by an Act of Parliament namely the Appellate Jurisdiction Act Cap 9 Laws of Kenya. The Court of Appeal does not have original jurisdiction to hear and determine matters. It only hears appeals. Thus where one is dissatisfied with a matter arising out of a criminal trial from the High Court, or from the decision of the High Court while in exercise of its appellate jurisdiction, he ahs recourse to appeal to the Court of Appeal. The threshold of a “question of general public importance” which is required for an appeal to be referred to the Supreme Court is not present. Unless expressly exclude by statue one will have a right to appeal to the Court of Appeal if aggrieved by a decision of the High Court in either its original or appellate jurisdiction.

 

On any appeal, the Court of Appeal has power, as far as its jurisdiction permits to confirm, reverse or vary the decision of the superior court with such directions as may be appropriate to order a new trial and to make any necessary incidental or consequential orders including orders as to costs.

In the case of Onyango Vs Republic [1983] e KLR (Criminal Appeal No. 91 of 1983, it was held that the jurisdiction of the Court of Appeal 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 only be inferred from the repeal of a provision to the effect that no appeal shall lie from the High Court. The Court of Appeal refused to entertain a second appeal from the decision of a court martial since there was no statutory provision providing for the same.

It is worth noting that whereas the Court of Appeal’s jurisdiction is in the main appellate, it does have original jurisdiction limited to the hearing and granting of applications for injunctions, stay of executions and other preservatory orders under rule 5 (2) (b) pending the hearing of appeals. The Court may thus order the suspension of a sentence passed by the Superior Court or a subordinate court pending the hearing of appeals to it.

3.    The High Court

The High Court is established under Article 165 of the Constitution as a superior court of record, versed with unlimited original jurisdiction in all civil and criminal matters in addition to all others powers as may ne conferred on it by the Constitution and any other laws. The Court of Appeal has in the Delamere case - Thomas Patrick Gilbert Cholmondley Vs Republic [2008] e KLR, expressed its understanding of the High Court’s unlimited original jurisdiction in the following terms:

The High Court on the other hand can hear all matters without regards 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 regards 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. This is our understanding of the phrase….unlimited original jurisdiction in civil and criminal matters.

The presiding officers at the High Court are judges as prescribed by an Act of Parliament which also makes provisions for the manner in which the High Court shall be organised and administered. In addition, there also exists the Principal Judge of the High Court, who is elected by the judges of the High Court from among themselves.

(i)           Enforcement Jurisdiction

Still on the Constitution, the High Court is possessed of a related but distinct jurisdiction namely the enforcement jurisdiction. This is donated in Article 165(3)(b) of the Constitution which provides that it shall have jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened. Such jurisdiction may be invoked by the subject citizen or by another person or association acting on his behalf.

The new Constitution mandates the Chief Justice to make rules to simplify access justice under this jurisdiction.

(ii)        Appellate Jurisdiction

The High Court has appellate jurisdiction but its not unlimited. It exists only where provided by statute. Thus a person convicted on a trial held by a subordinate Court of the first or second class may appeal to the High Court. The appeal may be on a matter of fact or law. Section 347 of CPC.  No appeal is allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate Court, except to the extent or legality of the sentence. Section 348 of CPC.

The state through the Director of Public Prosecutions (formerly the Attorney General) has a right of appeal to the High Court against the acquittal of an accused person by a subordinate court as well as an order by such court refusing to admit a complaint or formal charge or dismissing a charge on a matter of law.

A new appellate jurisdiction is conferred upon the Hugh 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. This however does not extend to an appeal from the decision of a tribunal appointed into the President’s physical or mental capacity to perform the functions of office under Article 144.

(iii)       Interpretative Jurisdiction

The High Court has interpretive jurisdiction to hear any questing respecting the interpretation of the Constitution. See article 165 (3) (d). It is not any and every question or any and every allegation of constitutional interpretation that qualifies for reference to the High Court. Neither for that matter has the mere mention of the constitution led to an automatic referral of the matter to the High Court. A question of constitutional interpretation was explained by Justice Apaloo as follows in the case of Odhiambo Vs Republic [Civil Appeal No. 54 of 1989]

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 one is the correct one.

Where a question arises as to the interpretation of the Constitution in proceedings in a subordinate court and that court is of the opinion that the question involves a substantial question of law, that court may suo muto and must if a party to the proceedings so requests refer the question to the High Court. The High Court will then, in exercise  of its interpretative jurisdiction deal with and determine that question in accordance with the Rules and render its decision on the question that has been referred to it in a accordance with which the subordinate court will then dispose of the case before it.

(iv)       Supervisory Jurisdiction

The High Court ahs supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising judicial or quasi-judicial functions. The Constitution expressly excludes superior courts as it would be untenable for it to purport to supervise judicial bodies of concurrent or superior jurisdiction.

 

SUBORDINATE COURTS

The Constitution under Article 169 (1) provides for the subordinate courts. The article states that the subordinate courts are-

(a)   The Magistrates courts;

(b)   The Kadhis courts;

(c)    The Courts Martial; and

(d)   Any other court or local tribunal as may be established by an Act of Parliament, other than the courts established as required by Article 162(2).

 

1.    Kadhis courts

Under Article 162(5) the jurisdiction of a Kadhis court shall be limited to the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parries profess the Muslim religion and submit to the jurisdiction of the Kadhis court. The Kadhis court therefore does not have jurisdiction to try criminal matters and cannot prosecute suspected offenders.

2.    Magistrates Courts

The Magistrates Court Act Cap 10 establishes the Magistrates courts and sets out their jurisdiction. The following interpretations are important in understanding what constitutes the Magistrates Courts and who a Magistrate is in Kenyan Law. These definitions are in Section 3 of the Magistrates Court Act which is the interpretive section of the statute;

“magistrate” means a chief magistrate, a senior principal magistrate, a principal magistrate, senior resident magistrate, a resident magistrate or district magistrate.

“magistrate’s court” means the Resident Magistrate’s Court or a district magistrate’s court;

By virtue of Section 3(2) of the Act the Resident Magistrate’s Court shall have jurisdiction throughout Kenya.

The criminal jurisdiction of the RMs court is set out in section 4 which provides that:

The Resident Magistrate’s Court shall have and exercise such jurisdiction and powers in proceedings of a criminal nature as are for the time being conferred on it by—

(a)	the Criminal Procedure Code or
(b)		any other written law.

Appellate jurisdiction                               

Under section 10, Resident Magistrates Court do have appellate jurisdiction in criminal matters from the judgements of Magistrate court of third class.

The jurisdiction of Magistrates in Criminal cases

The magistrate courts unlike the High Court do not have unlimited jurisdiction and therefore cannot hear all cases. They have limits as to the nature of cases that they can hear and the level of sentence that they can mete out depending on their rank.

Not all magistrates have the same power when it comes to sentencing. The extent to which a magistrate can sentence a person depends on the rank of the Magistrate. These are set out under section 7 of the CPC.

Inquisitorial powers

Magistrates courts are also authorised to hold inquests. This power is contained in Section 385 of the CPC. It provides that a magistrate empowered to hold a subordinate court of the first, or second class and a magistrate specially empowered in that behalf by the Chief Justice shall be empowered to hold inquests. Thus a Magistrate of the Third class cannot hold inquests, the power to hold inquests is only vested in the Magistrates court and the High Court since they are presided over by judges not magistrates have no power to hold an inquest.

     In Re Muge [1991] KLR 51, the then Attorney General purported to order the Chief Justice to appoint a Judge to conduct an inquest into the death of Bishop Alexander Muge who was killed in a road traffic accident. At the same time Mr. Onkoba was charged with the offence of causing death by dangerous driving arising out of the same accident that killed Bishop Muge. The widow of the deceased applied for an Order of Prohibition to stop the Magistrate from proceeding with the traffic case as there had been intimation that an inquest would be held. It was the position of the applicant that it would be futile to hold an inquest if the traffic case proceeded to conclusion as the whole purpose of the intended inquest would be defeated at the trial. In the first instance, the High Court dismissed the application on a technicality of the supporting affidavit which it considered to be defective. The applicant appealed and in the court of appeal the decision turned on whether or not the purported directive to the Chief Justice had any basis in law. If not then the purported inquest could not be held, and thus the applicant could not be said to have suffered any injury. The Court of Appeal held that the direction by the Attorney General had no basis in law as it was not sanctioned by any constitutional or statutory provision. In other words, the AG could not direct that a Judge of the High Court be appointed to hold an inquest. This is the mandate of the Magistrates’ court by dint of the provisions of Section 385 of the CPC.

3.    Children’s Court

The Children’s Courts are staffed by Magistrates who are specifically appointed by the Chief Justice to preside over cases involving children in any part of the country. Such Magistrates constitute the Children’s court when so sitting to hear cases involving children. When not sitting in the Children’s courts they are Magistrates like no other. These Children’s courts are no more than special Magistrates courts.

The jurisdiction of a Children’s court inter-alia includes hearing of any charge against a child, other than a charge of murder or a child in which the child is charged together with a person or persons above the age of eighteen years. They also hear charges against any person accused of an offence under the Children Act.

Offence of murder where a child is suspect are heard by the High Court which is the only court empowered to try this offence. In instances where the child is a co-accused alongside an adult or adults the trial will proceed in the ordinary magistrate’s courts.

Children’s courts are supposed to sit in a different building or room or at different times from the ordinary courts.

Any sentence prescribed for the particular offence can be passed by the Magistrate mandated to hear matters covered by the Children’s court irrespective of any limitations that may be prescribed by the CPC as to the particular sentence that the particular magistrate may pass.

4.    Court Martial

The Courts martial is established under the Armed Forces Act Cap 99. Its purpose is to try offences under the Armed Forces Act. Under Section 86 of the Act, the court martial consist of a presiding officer and not less than to other members.

Appeals from the Court martial are heard by the High Court and their decision is final and not subject to further appeal.

The court martial is therefore for all intents and purposes a subordinate court and the High Court therefore possesses powers of supervision over the court martial including the power of judicial review.

 

TOPIC 7: THE NATURE OF CRIMINAL PROCEEDINGS

Introduction

Criminal procedure and practice is a branch of law that 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.

It is a branch of law that is concerned with the process as opposed to the substance of Criminal law. It defines the procedures and rules that govern the judicial aspect of the prevention, detection and punishment of crime, depending on the crime the procedure may be simple and short and elaborate, delicate and long.

The criminal process embodies a triangulation of interest, on the one hand is the interest of the society, through the instrument of the state to punish crime and on the other hand the offender-to ensure the rights of inherent to the dignity of the offender are respected. It is how the procedural law strikes this balance that is efficacy is judged.

 

Recent years have also seen the widening of concerns of the criminal process to include focus of victims of crime. Refer to the 2003 Introduction of a part in the criminal procedure code dealing with victim impact statements – part IX A of the CPC

Players in Criminal Proceedings

1.    The State and the Accused

The two are the main players/parties to a criminal trial. – state and accused, normally represented as Republic Vs X. This indicates the public nature of criminal proceedings even though the individual citizens are in most cases the injured party. It is the state that initiates proceedings on behalf of the public.

2.    Complainant

The term complainant occupies an important place in the criminal trial process but has also been one subject to controversy. So much so that an attempt to define it in Section 2 of the Criminal Procedure Code as a person who lodges a complaint with the police or any other lawful authority ended up having an extremely brief statutory life in that it was subsequently deleted by Act No. 7 of 2007. 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.

It is of interest though that section 2 of the Criminal Procedure Code retails the definition of complaint as “ an allegation that some person known or unknown has committed as an “ allegation that some person known or unknown has committed or is guilty of an offence”. It may therefore be said that even though a complainant is one who is directly, immediately and personally affected by the criminal acts of the accused and therefore makes a complaint, the state by virtue of having an interests in the protection of the rights of all its citizens may itself be seen as a complainant, with the right not only to complain but also to prosecute.

 

Another reason why the state is a complaint is because it is the state that legislates what constitutes a crime. Any breach thereof directly harms the state. It would therefore follow that it has the right to complain and prosecute. The view of the state as a complainant in all criminal cases has recently found the most authoritative endorsement by a Constitutional bench of the High Court in the case of William Ruto and Others Vs Attorney General. (High Court Miscellaneous Application No. 1192 of 2005 delivered on 15^th October 2005).

So critical is the role and place of a complainant that where an accused person appears in a particular court at an appointed time for the trial but the complainant himself having knowledge of the proceedings fails to appear, the court is empowered to acquit the accused person unless it deems it fit to adjourn the case until some other date. See Section 202 of the CPC.

It is an interesting question to consider whether the presence of the prosecutor as the representative of the state, the nominal complainant suffices to save a case from the inevitable acquittal due to the personal complainant’s absence. It has been held that in some cases in Republic Vs Mwaura (1979) KLR 209 that a complainant includes a public prosecutor.

The complainant may also withdraw his complaint at any time before judgement is passed if he can satisfy the Court for permitting him to withdraw it. The accused is the acquitted. See Section 204 of the CPC. Even through the statute does not say so a personal complainant cannot make such a withdrawal without the concurrence of the State in the person of the prosecutor.

Where the State and the complainant are agreed, though it would not be proper for the Court to make it unduly difficult for a withdrawal. In the case of Shen Zhangua Vs Republic ( 2006 eKLR,   the trial court had declined to allow an application by the complainant to withdraw his case on grounds that he did not give sufficient reasons to the Court for his application. Lesiit., J on appeal held that the subordinate court ought instead to have clarified the grounds given by the complainant which were in fact sufficient and proceeded to allow the withdrawal.

In Medardo V Republic ( 2004) 2 KLR 433, the Court held that under section 204 of the Criminal Procedure Code, if at any time before the final order is passed in a case a complainant satisfies the Court that there are sufficient grounds for permitting him to withdraw his complaint, the Court may permit him to withdraw it and shall thereupon acquit the accused, The court retains the discretion to allow the application for withdrawal but once it has exercised that discretion and allowed the withdrawal it is bound to acquit the accused person.

If the complainant id a child of tender years, the court is expected to test the intelligence of the child through a voir dire examination before deciding whether or not to subject him to oath.

Apart from his role in the making of a complaint, which he may in a proper case withdrawal and his critical role at the beginning of the trial which is foundational to the prosecution’s case, the complainant holds the key to any effort at reconciliation that may lead to an amicable settlement of the case facing an accused person. This has been an appropriate case involving common assaults or any other offences of a personal or private nature not amounting to felony and not aggravated in degree. See Section 176 of the CPC.

The complainant also play a role in helping the court determine what sentence to impose in cases where the offence results in the death or actual physical bodily harm to any person through the process of the victim impact statements since the complainant would necessarily be either the primary or family victim by way of victim impact statements. See section 329 A of the CPC.

The complainant does not have the right to address the court or the High Court stated n Republic Vs Cap Van International Limited (2003) KLR (Revision Cause 6 of 04) the complainant in a criminal case can only communicate with the prosecutor..

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 appeal. Historically, public prosecutors were subject to the express directions of the Attorney General whether general or specific and fell under three broad categories;

(i)            Those exercising the Attorney General delegated authority as officers at the State Law Office namely the Director of Public Prosecutions, Solicitor General and State Counsel of various ranks;

(ii)          Gazetted Public Prosecutors appointed by the Attorney General either for Kenya generally or for any specified area. The Gazette notice spells out both the geographical and subject matter (case type) competence or authority of the said prosecutors and;

(iii)         Non-Gazetted public prosecutors who are appointed by the Attorney General in writing from among advocates of the High Court.

The exclusive panoply of prosecutorial powers, including those of appointment of public prosecutors, previously donated by the Attorney General have now been rationalized and in some respects curtailed and transferred o an independent and constitutionally protected Director of Public Prosecutions under article 158 of the New Constitution.

4.    The Police

The police perform investigative functions to ensure, ideally that the case brought against the accused is substantial, weighty and supported by the evidence.

The investigative powers of the police are spelt out in the Police Act and Force Standing Orders made there under. Even though the Constitution 2010 omits the prevention, investigation and detection of crime among the objects and functions of the National Police Service under Article 244, these are clearly implied or presumed under Article 245 (4). The Director of Public has power under Article 157 (4) to direct the Inspector General of the National Police Service to investigate any information or allegation of criminal conduct and the latter is obliged to comply with any such direction which must be in writing.

The provision seems to suggest that only the police and not the DPP can be involved in investigations. The issue came up in R Vs Pattni (2005) 1 KLR 310.

 

5.    Witnesses

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

Since the criminal trial is adjudicative in nature and aimed at establishing the truth or otherwise of allegations made against an accused person, witnesses play a central role. It is their testimony as to the facts in dispute as well as their production of documentary or physical evidence or opinions (in the case of experts) that aid the court in arriving at a just decision of the case

 

6.    Judge or Magistrate

He is the presiding officer of the Court and represents the authority and integrity of the judicial adjudicative process. His role is in the main, passive as an impartial umpire in an adversarial legal system. It is his/her  duty o unscrupulously apply the procedural law as well as the rules of evidence to ensure that the criminal process is not used to oppress .

TOPIC 8: THE TRIAL PROCESS

A criminal trial commences when on the hearing date an accused person is called upon to take his place in the dock.

The charge is then read to the accused and his plea taken. As a preliminary process the prosecutor is expected to inform the court of the number of witnesses they intend to call and to indicate their readiness to proceed.

If the prosecution is ready to proceed the accused has a right to be defended by an advocate of his choice, the court should ensure that the advocate is present.

Section 194 of the CPC provides that the accused must be present personally or where his presence has been dispensed of represented by his advocate if any throughout the trial.

—  After the plea is read and taken, the trial then starts by the prosecution tendering its evidence.

—  Section 197 of the CPC makes provision for the manner of recording evidence before magistrates. 

The evidence of each witness taken down in writing or typewriter in the language of the court by magistrates or in his presence and hearing and under his personal direction and superintendence and shall be signed by the magistrate and shall form part of the record.

Prosecution Case

The prosecution should lay out its case in a logical sequence and ordinarily the first witness should be the direct victim of crime if any.  The exception to this rule is where one has expert witnesses, and where there are expert witnesses, they should take precedence over other witnesses.

Section 151 of the CPC provides that every witness in a criminal matter shall be examined upon oath administered by the court.

Cross-examination

The prosecutor file has all the witness statements and as they lead them they do so based on the statements that the witnesses have written down.

The witness shall then be cross-examined by the defence.

Cross-examination is basically to raise doubt on the case of the prosecution.

One is trying to build the basis for their defence during cross examination. More in Trial Advocacy (3^rd yr)

 

Re -examination

After cross-examination there is re-examination which is done by the prosecution to clarify issues that will have arisen in the course of cross-examination.  In re-examination, it is important to stick to the relevant things that were raised during cross-examination.

The court also has powers to cross examine witnesses.  For the court to do this, there must be issues where the court is seeking clarification which have not been brought up by the prosecution or defence

Cross-examination by the Court

Where the accused is not represented, this helps the courts to be proactive.  The accused who is not represented may not know how to cross-examine a witness and the court can do that to clarify issues. 

Once cross examination and re-examination have been finalized the court must sign the proceedings, so that at the end of every witness’ evidence the court must sign and put in the designation and date of that part of the proceedings. 

This way the witnesses are called until they have all given evidence and then the prosecution can indicate to the court that they are done

Close of prosecution case

Section 211 of CPC  This happens upon hearing the evidence in support of the charge and such submission or argument as may be put forward by the prosecutor and defence respectively.

After which the court shall consider whether or not a prima facie case has been established

If it appears to the court that a case is made out against the accused person sufficiently the court requires him to make a defence, no reason is required.

Prima facie case

The court defined a prima facie case in Bhatt v Republic as one where a reasonable court directing its mind to the law and evidence would convict if not explanation were offered by the defence.

Where the court is of the opinion that the prosecution has failed  to establish a prima face case; then a detailed reasoned ruling will be written leading to an acquittal under Section 210  of the CPC and the accused shall be set at liberty accordingly.

Once a ruling that a prima facie case has been established;

Once a ruling that a prima facie case has been established; S 211 of the CPC provides;

a)                That the court shall again explain the substance of the charge to the accused, to prepare the accused person or to remind him of the charge.

b)    It shall inform him that he has a right to give evidence on oath from the witness box, in which case he shall be liable for cross examination.

c)     Or that he can make an un-sworn statement in which case he shall not be liable to cross-examination.

The accused shall be informed of his right to remain silent, an option that the accused may elect. (see section 306 (3)

Whichever option the accused person chooses, he shall be informed of his right to call witnesses.

Section 211(2) enables the court to compel attendance of witnesses on behalf of the accused where there is need and to grant adjournment to enable such witnesses to attend court.

The accused may also apply for production of documents or thing that he considers necessary for defence.

The court can reject such applications where it considers it to be vexatious or that it is intended to delay or defeat the cause of justices in which case the reasons for refusal should be recorded.

DEFENCE CASE

The accused shall commence his defence by calling his witnesses referred to as Defence Witnesses (DW).

The practice is for the accused where he has elected to give evidence whether sworn or unsworn to go  first.   

This procedure ensures that the accused person who must be present through out the trial does not have the advantage of listening to his witnesses and thereby probably tailoring his own evidence to corroborate such witness statements

The accused shall then call witnesses who shall be sworn/affirmed and shall give their evidence in chief, be cross examined by the prosecutor and re-examined by the defence and finally they may be examined by the court.

After calling all the witnesses the defence shall signify to the court the close of their case.

Both the defence and the prosecution may then address the court in an argument to support each side’s position. (Closing statements)

At close of Defense case

After  the close of the defence case the accused or his advocate have the right to address the court; with the prosecutor having an automatic right of reply where the accused has adduced evidence (calling witnesses other than himself)

After listening to the arguments from both sides the court will proceed to write the judgment.  At the ruling stage the ruling can amount to an acquittal in the same way that a judgment can amount to an account where the court has established there is no prima facie case.

ISSUES ARISING IN THE CAUSE OF TRIAL

Non attendance by complainant. Section 202 of the CPC provides that where the accused is present before the court but the complainant having had notice of time and place of hearing fails to attend trial, the court acquits the accused unless for some reason it thinks it proper to adjourn the case to another date.

ISSUES DURING TRIAL

Withdrawal of Complaint. Under Section 204, at any time before a final order is passed the complainant can withdraw his complaint on satisfying the court that there are sufficient grounds.

Where the court is so persuaded then the accused shall be acquitted accordingly.

There are however instances when the court can decide not to allow such an application where it feels the victim of crime may have been coerced into withdrawing the claim or where for public good it would not be right to allow withdrawal.

Adjournment. Section 205 allows for the court to exercise its discretion to allow for adjournment during trial. 

The duration which people have to spend in remand before they can be tried is a good indication of whether there is too much delay and the court has a problem with backlog.

 Courts can only manage the case they have by giving people cases that they can proceed with. Adjournment should therefore only be allowed where there is sufficient ground.

Non appearance by both parties after adjournment. Section 206 provides that where an accused charged with an offence other than a felony does not appear after adjournment the court may proceed in his absence to convict and sentence.

Where the court subsequently is satisfied that non-attendance was due to reasons beyond the control of the accused the sentence may be set aside.

Where it is the complainant who fails to turn up then charge may be dismissed with or without costs.

Witnesses.

Who may be called as a witness?

All persons may be called as witnesses in criminal cases except;

1.    Children of such tender years that they have no sufficient intelligence to give evidence.

2.    Insane persons.

3.    Persons whose understanding is affecting by temporary causes such as illness or drunkenness.

Deaf and dumb witnesses if they are unable by writing or signing or otherwise to communicate.  If they can communicate by writing or any other way, then they can testify.

The accused, and the husband or wife of the accused’s spouses cannot give evidence against each other unless the offence is in relation to the spouse i.e. if the wife has battered the husband then the husband can testify.

Children – any child may be sworn as a witness provided that it appears to posses sufficient intelligence to understand the nature and obligations of the oath. Competency is based on understanding not age.

The child may give un-sworn statement if the courts is of the opinion that they can understand the nature of proceedings even if they do not understand the nature of the oath.

Place of trial

Section 77 makes provision that the place at which a criminal case shall be held for the purposes of trying an offence shall be deemed to be an open court to which the public generally may have access so far as it can conveniently contain them.

However, the court is enabled to order at any stage of the trial that the public generally or any particular person shall not have access to or remain in the room or building used by the court.

Exclusion of the public is justified where the administration of justice would be rendered impracticable by the presence of the public either because;

The case could not be effectively be tried because of possible violence to witnesses or to other persons taking part in the trial or because the parties entitled to justice would reasonably be deterred by publicity from seeking justice at the hands of the court

A hearing in camera may also be justified where the hearing involves a secret process, or where the security of the state and the public generally would be compromised by a public hearing.

The burden is upon the party seeking to oust the ordinary procedure to show that the haring in camera is necessary, proof can be by way of affidavit.

 Section 77(2) of the CPC makes it mandatory for all trials relating to sexual offences and those found to be insane to be held in camera and further makes it an offence to publish by whatever means the particulars which may lead to the identification of the victims or the pictures of the victim

Further contravention of this is punishable by a fine not exceeding KShs 100,000 in the case of an individual and KShs 500,000 for a corporate offender.

 

TOPIC 9: THE DICHOTOMY OF THE INQUISITORIAL AND ADVERSARIAL SYSTEMS

Introduction

In most countries the administration of criminal justice follows one of two different models. These are the adversarial or accusatorial model and the inquisitorial model. The adversarial model is associated with Anglo – American countries covering the entire common law world. On the other hand the inquisitorial system is associated with continental Europe covering the so called civil law countries.

The main differences between the two systems are hinged upon the differences in the roles of both the judicial authority and the parties. The role the judicial authority plays in an adversarial system is different from the role the authority in an inquisitorial system. Similarly, the roles the parties lay differ in each one of the two systems

Professor Morris Moscoe emphasizes the difference in the following manner;

The divergence in character between European and Anglo-American procedure springs chiefly from the difference in the conception and use of judicial authority. Criminal procedure in Anglo America like civil procedure is contentious. The responsibility for gathering and presenting evidence rests upon the prosecutor and accused, the parties to the case. When a judge intervenes in the preliminary stages, it is to decide  a specific  question, whether the accused should be admitted to bail and if so what amount, whether a search warrant or a warrant of arrest should be issued and so forth. The judge decides not on evidence he has gathered but on evidence submitted to him. He obtains the substratum from open court from the parties. Anglo American judges do not themselves make investigations into criminal cases independent of both prosecution and defense, nor do they usually delegate other agents to do so. At the trial, the Anglo –American judge is limited to directing proceedings ruling on points of law such as the admissibility of evidence and if sitting without jury to making the final decision on the facts.

In Europe, on the other hand, a criminal proceeding is a judicial inquiry. It is the duty of the judge to ferret out the facts. They do not wait for the truth to emerge from the contentions of the opposing parties the trial is dominated by the presiding judge who himself questions the witnesses and the accused and brings out the evidence for the prosecution ad for the defense.

Adversarial

It is emphasized that this difference in the functions of judges arises from different theories concerning the best means of separating the guilty from the innocent. In Anglo-American countries, the provision of an impartial tribunal before which both sides may lay their facts is the chief means for accomplishing this purpose.

Inquisitorial

In Europe, it is felt that what happens in the trial is so vitally affected by the preparation of the case in the preliminary stage that the active intervention of a judicial officer is vital it is further reasoned that the prosecutors tend to collect evidence indicative of guilt and to neglect facts favourable to the accused. Unless the accused is represented by counsel of equal ability to that of the prosecutor, he comes to trial at a distinctive disadvantage. The inquisitorial system therefore seeks to maintain a balance in trial proceedings to placing upon the judges and not upon the parties, the primary duty of bringing out evidence.

 

Main features of inquisitorial system;

1.    Judge centred

Trials that follow the inquisitorial system are judge centred in the sense that it is the judge who calls and interrogates the witness and who decides upon the order in which the evidence is to be taken.

2.    Questioning done by judge

All questioning is done by the judge and there is no distinction between examination in chief and cross examination.

3.    Judge has a duty to ascertain all facts;

It is the judge’s duty to ascertain all facts neither the prosecution nor the defense is under a legal burden of proof. However, in practice the defense sometimes may have a duty of producing some evidence. The prosecution and the defense play comparatively minor roles at the trial. After the judge has finished the examination of a witness or of the accused, they may suggest that he put additional questions or they may ask supplementary questions themselves. They may also suggest the judge take further evidence. After all the evidence has been heard they have a right to address the court.

4.    Quasi – scientific search for the truth

The inquisitorial procedure is considered a quasi scientific search for the truth rather than a dispute. Like a historian the judge collects and analyses the facts. He tries to draw an objective and comprehensive picture of the alleged offense by integrating the arguments and evidence of the prosecution and the defense. The essence of inquisitorial may be called seeking of truth by integration.

 

 

 

Main features of the adversarial system

1.    Trial is party centred

The parties present their case to the judge or jury. The parties almost always control and manage the presentation of evidence from which the facts are constructed.

2.    Contest between parties

Related to the concept of party control of the proceedings, an adversarial trial takes the approach of a contest between the parties. Facts are proven though persuasion.

3.    Prosecution and defense do not  have same rights and duties;

The prosecution is bound to prove its case beyond reasonable doubt while the accused in some cases has a duty to produce evidence as to prove his case on a preponderance of probabilities. The prosecution is not under a duty to obtain a conviction. It simply has to present all relevant facts to the court and to see that justice is done.

4.    Judges role is mainly passive

The judge has to listen to the evidence that is presented to him and he has to hear the arguments of the parties. Yet he may not be totally inactive. He may rule on admissibility of evidence. He may intervene to promote expedition of the case. He may also put supplementary questions to the witnesses.

5.    Focuses more on resolving dispute as opposed to finding the truth

 

TOPIC 10: JUDGEMENT AND SENTENCING

At the end of trial the judicial officer shall proceed to write the judgment of the court.

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.

Section 169 of the CPC provides that each and every judgment shall be written by or under the direction of the presiding officer of the court in the language of the court

Shall contain the point or points for determination, the decision thereon and the reason for the decision

Shall be dated and signed by the presiding officer in open court at the time of pronouncement

In the case of conviction the judgment shall specify the offence and the section of the law creating it, which the accused is convicted and the punishment

In the case of an acquittal, the judgment shall state the offence of which the accused is acquitted and direct that the accused be set at liberty

The accused person to be given a copy of the judgment or a translation                                                                                                                

The first paragraph of the judgment should contain a brief statement of the offence, together with the brief particulars

The next paragraph should contain a summary of the evidence of the prosecution – it should be in narrative or story form

The next paragraph should be a summary of the defense case.

The magistrate should not deal with irrelevancies but should proceed to the crux of the matteR .

They must appreciate the issues before the court,  any discrepancy must be considered at this stage.  They must expose the evidence to scrutiny before judgment.

Whatever reasons one gives must be anchored to the law.  The reasoning must be legally competent.

The judgment must in no uncertain terms give a verdict.  

The verdict must be in respect of accused person in each and every count. 

Any unusual circumstances arising in the course of trial should be recorded where relevant.  One should make reference to the unusual circumstances in the judgment.

One must look at the standards of proof. In criminal cases it is beyond reasonable doubt. 

In many criminal cases corroboration is required.  The judgment must make reference to the corroboration. 

Rules of evidence must be followed.  For example where there was a confession, the judgment must indicate that there was a confession.

S. 168 provides that the substance of judgment shall be explained in open court.

The rules are that the prosecution or the defence can make an application for the whole judgment to be read. 

The courts read the whole judgment.  One can read the key issues arising in judgement such as the judgment and then give copies of the judgment for parties to peruse at their own time, where the accused is being acquitted.

No alterations can be made on the judgment after delivery.  The court cannot on its own review the case, after delivery of judgment the court becomes functus officio.

Until judgment has been given and a decision made does the court proceed to give a sentence.

Judgment does not contain a sentence.  It is about determining the verdict.

SENTENCING

Where a finding of guilt is arrived at by the court and a conviction entered the stage is set for the court to impose a penalty by passing a sentence upon the convicted offender.

Sentencing is seen as a crime prevention mechanism.

Broadly speaking sentencing has the following purposes;

To act as punishment

To act as a form of treatment 

To act as a deterrent factor

As a measure of protection for society

Most sentences however embody all the four aspects as each is important.

In Kenya we have provisions for both mandatory and discretionary sentencing.

All offences punishable by death do not give room for discretion and the death sentence once awarded and upheld up to the Court of Appeal can only be commuted by the president in exercise of his constitutional powers of pardon.

In all other cases the courts have discretion which must take into account the maximum sentence as provided by statute.

In Kennedy Indiema vs Republic, it was held that the sentence imposed on an accused person must be commensurate with the moral blameworthiness of the offender.

Having given judgment, the judicial officer must then go into the process of awarding sentence.

Section 216 provides that the court may, before passing sentence or making an order against an accused person, receive such evidence as it thinks fit in order to inform itself as to the sentence or order properly to be passed or made.

Factors to be considered before sentencing.

The cause of crime. There are various socio economic factors that may lead to crime i.e. poverty, drunkenness, avarice, greed, anger, lust opportunity, habit insanity ignorance, unemployment, broken home, psychological problems etc.

Whereas it is not always possible to tell why a crime is committed where motive can be established it ought to be taken into consideration.

 The magnitude of the crime. The level of seriousness and gravity of other offence must be taken into account including the impact on the victim and society generally.

Prevalence and type of crime. What is the frequency or rarity of the type of crime? Is it comparatively more prevalent in one area? Is there a sudden spare in the type of crime?

Aggravating or extenuating circumstances. These are circumstances that are peculiar to the offence e.g. opportunity  provocation.

Accused. Circumstances, character, attitude etc. These are issues which would ordinarily arise during mitigation.

Previous conviction. This will be raised by the prosecution. The court should consider whether they are similar as well as their relevance in the case. They should be a good indication of the offender’s previous interaction with the criminal justice system.

In most cases the courts tend to be more lenient to first offenders.

The court will also consider uniformity in approach to sentencing. 

This is in order to avoid disparities by the same court as well as in comparison to other courts in sentencing offence of similar nature etc.

This should be supported by a clear sentencing policy that is known to judicial offices.

Such a policy will generally enhance the credibility of courts.

Offenders will know what to expect and in a sense it should therefore act as a deterrent factor when offenders can with some amount of certainty predict the kind of sentences that their offences are likely to attract.

Types of sentences

Section 24 of the Penal Code makes provision for the various types of sentences that courts may award;

Death is mandatory for murder, treason, robbery with violence or attempted robbery with violence.

Imprisonment – is the most popular punishment and it entails the actual physical restrain of the offender by placing him in custody.

Fines -are rarely imposed in felonies but are frequently utilised in misdemeanours and statutory offences.

The court may award the sentence to be served either consecutively or concurrently where the offender is sentenced to more than one offence.

Each count attracts their own sentence and there is no generic sentence.

Victim Impact Statement

Victim Impact Statement means a statement containing particulars of;

In the case of a primary victim, any personal harm suffered by the victim as a direct result of the offence; or

In the case of a family victim, the impact of the primary victims death on the members of the primary victims immediate family’ members of the immediate family as defined as

The victim’s spouse

¡  The victims de facto spouse being a person who has cohabited with the victim for at least 2 years

¡  A parent, guardian or step parent of the victim

¡  Child or step child of the victim or some other child of whom the victim is a guardian

¡  A brother, sister, step brother or step sister to the victim.

A primary victim is a person against whom the offence was committed or a person who was a witness to the act of actual or threatened violence, the death or the infliction of bodily harm concerned, being a person who has suffered personal harm as a direct result of the offence or a personal harm.

Section 329C makes it discretionary upon the court to determine whether or not to receive and adopt a victim impact statement, after conviction and before sentence. 

Where the primary victim has died as a direct result of the offence then the court may receive a statement from a family victim. 

The impact statement must be in writing and such other requirements as per the rules (rules are to be made by the Chief Justice).

The court shall not accept a victim impact statement unless it has been filed by or on behalf of the victim to whom it relates; or by and on behalf of the prosecutor.

The court shall only consider a statement by a family victim if it considers it appropriate to do so.

MITIGATION

It is a well established practice that the court should consider mitigation from the offender.

It is at this juncture that the offender has opportunity to inform the court of his personal circumstances that could mitigate against a harsh/inappropriate sentence.

The facts relied by the accused in mitigation may be questioned by the prosecution, in which case evidence must be heard and the finding made as to disputed facts.

In the absence of evidence to the contrary, the court ought not to ignore mitigating circumstances put forward by the accused.

It is not mandatory for a court to receive such information but it is desirable to do so. See Republic vs Nasanairi Nsubuga

Although mitigating factors may require an accused to be treated leniently, they do not entitle or guarantee the accused that he will in fact be so treated.

Having heard the prosecution, including the victim impact statement if any, and the accused, the court will then be in apposition to award a suitable sentence.

TOPIC 11: APPEALS AND REVISION

1.2.Introduction.

A party aggrieved by a decision of the trial court if dissatisfied by the trial court’s decision may appeal to the court of higher jurisdiction.

An appeal from a subordinate court will lie to the High Court whereas one from the High Court will lie to the Court of Appeal.

There are also instances of appeal from Court of Appeal to the Supreme Court.

On appeal a court will only interfere with a decision of a trial court where; or

(i)            The sentence was imposed against legal principles;

(ii)          Relevant factors were not considered;

(iii)         Irrelevant and or extraneous matters were considered

(iv)          The sentence is manifestly excessive in view of the circumstances

 

Nature of appeals

Section 347 CPC - A person convicted on trial held by a subordinate court may appeal to the High Court on both fact and law

S 348 - a person who pleaded guilty cannot appeal against conviction but only against the sentence unless alleged the plea was not unequivocal.

DPP

Section 348A AG (now DPP) can only appeal an acquittal o a matter of law only

DPP has no right of appeal on facts.

Period for appeal

14 days from the day of passing the order intended to be appealed from. (s. 349 cpc)

The appellate court may admit an appeal out of time if good reason is shown.

Good reason can be shown through a delay in receiving a copy of the judgment or record.

Form of appeal

Appeal is made in the form of a petition. The court document containing the appeal is therefore called The Petition of Appeal.

It must be signed by the appellant or counsel on his behalf;

Must contain particulars of issues either legal or factual appealed on;

Must contain address of service.

Form

Every petition must be accompanied by a copy of the judgment or order appealed against unless the High Court directs otherwise. S 350 (1)

The petition must contain all details as the court will not entertain any issues not raised within the petition. S350 (2)

However, subject to leave of the court an appellant may amend the petition of.

Number of judges

Appeals from subordinate Courts are heard by two judges of the High Court unless the CJ of Presiding Judge (as authorised by CJ) directs that it be heard by one judge.

If on hearing the appeal the Court is equally split then the appeal is heard afresh before three judges.

Summary disposal of appeal

A Judge may reject an appeal summarily having perused and considered that there is no sufficient ground for interfering. S 352(2)

Ndungu v. R the Court said a Court may summarily reject an appeal only where an appeal is on the grounds that conviction is against the weight of the evidence or that the sentence is excessive.

S 352A where an appeal has been lodged and a judge of the High Court is satisfied that a conviction cannot be supported and the AG (DPP) has informed the court that he does not support the conviction, the judge may summarily allow the appeal.

Hearing of appeal

The appellant first addresses the court the respondent responds.

The appellant may be granted a second bite at the cherry after the respondent has addressed the court.

Orders

If an appeal is against a conviction the Court may:

a)    Reverse the finding and sentence and acquit or discharge the accused or order a retrial;

b)    Alter the finding, maintaining the sentence or reduce or increase the sentence;

c)     With or without a reduction or increase, alter the nature of the sentence

If an appeal is against a sentence, the appellate court may increase or reduce thye sentence or alter the nature of the sentence.

If an appeal is from an acquittal, the appellate court can reverse or affirm

Additional evidence

The High Court has powers to take additional evidence on appeal if it feels that the same is necessary.

It can take the evidence by itself or direct a subordinate court to do it.

Second appeals

An appellant may appeal to the Court of Appeal from a judgment of the High Court on appeal on a matter of law only.

Sentence can be a subject of a second appeal where the High Court enhanced it.

On hearing the appeal, the court of appeal may set aside or vary the judgment. Alternatively it may remit the case with appropriate directions to either court.

 

REVISION

Other than the appellate jurisdiction, the High Court has power to cals for and examine the record of any criminal proceedings before any subordinate court - S 362 CPC

The purpose of this is for the High Court to satisfy itself of the correctness, legality or propriety of any finding, sentence or order in the subordinate court. Esther Ngure v. R

Any party may move the High Court or it may act suo motu