Criminal Law Notes

 

 1.                   DEFINITION OF A CRIME:

INTRODUCTION

·       A public wrong: It is an act which generally has a particular harmful effect on the public. Acts are made crimes by legislation and judicial decisions.

·       Crimes are classified as:

a)       Felonies and misdemeanors/serious and petty cases

b)       Inchoate and choate crimes/incomplete and complete criminal activity (i.e., incitement, conspiracy and attempts).

2.                   ELEMENTS OF A CRIME:

·       It is a principle of Criminal Law that a person may not be convicted of a crime unless the prosecution proves beyond reasonable doubt the following elements:

a)       Actus reus: The prohibited act or omission. The prosecution must prove beyond reasonable doubt that the accused has committed the prohibited act. It is a wrongful act. Such result of human conduct that the law seeks to prevent. It is a result of human conduct i.e., ‘A’ stabbed ‘B’ with a knife. The result is the injury to ‘B’ hence it means Actus reus.

b)       Mens rea: Mens rea denotes the guilty mind. The intention to commit a crime. “Atus non-facit reum nisi mens sit rea” means that “the act itself does not constitute guilt unless done with the guilty mind.” Prosecution must show that the act was done voluntarily and that there must have been some foresight of the consequences. No act is punishable if it was done involuntarily e.g., while the person was sleepwalking or suffering from a concussion or insanity.

3.                   EXCEPTIONS TO THE RULE OF MENS REA:

a)       Strict liability offences: These are crimes which do not require one to proof intention, recklessness, or negligence as to one or more elements in the actus reus.¹ In other words, they are offences where liability is so strict and mens rea doesn’t have to be proved e.g., offences under the Food, Drugs and Chemical Substances Act. The offences prescribe certain conduct and are regulatory in nature.

b)       Vicarious liability offences: These are offences whose liability is visited on the suspect for the acts of others

e.g., principal and agent relationship, companies are charged through Board of Directors, etc.

4.                   TYPES OF DEFENSES IN CRIMINAL LAW?

a)       Mental Disorder (Insanity): The defence pertains only to those crimes having an intent element.

b)       Automatism: This is a state where the muscles act without any control by the mind, or with a lack of consciousness. One may suddenly fall ill, into a dream like state as a result of post traumatic stress.

c)      

Intoxication: It may negate specific intent. For example, lack of specific intent might reduce murder to manslaughter. Voluntary intoxication nevertheless often will provide basic intent, e.g., the intent required

¹ Strict liability is an exception to the fault principle. It is liability without fault. Where a tort is one of strict liability there is no need to proof fault on the defendant’s part. Once the plaintiff is proved to have suffered damage from the defendant’s wrongful act, the defendant is liable notwithstanding that there may have been no fault on his part. A specific instance of strict liability is afforded by the rule in Rylands v. Fletcher. Fletcher employed contractors to build a reservoir, playing no active role in its construction. When the contractors discovered a series of old coal shafts improperly filled with debris, they chose to continue work rather than properly blocking them up. The result was that on 11^th December 1860, shortly after being filled for the first time, Fletcher's reservoir burst and flooded a neighbouring mine, run by Rylands, causing £937 worth of damage. The Court held that the person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.

for manslaughter. On the other hand, involuntarily intoxication may give rise to no inference of basic intent. Strictly speaking, however, it could be argued that intoxication is not a defense, but a denial of mens rea.

d)       Mistake of Fact: "I made a mistake" may be a defense. The defense is often used in conjunction with another defense, where the mistake led the defendant to believe that their actions were justifiable under the second defense. For e.g., a charge of assault on a police officer may be negated by genuine (and perhaps reasonable) mistake of fact that the person the defendant assaulted was a criminal and not an officer, thus allowing a defense of use of force to prevent a violent crime (generally part of self-defense).

e)       Necessity/Lesser harm: A criminal act can be justifiable if it is necessary to prevent a foreseeable and greater harm than the harm created by the act. For instance, trespassing is generally justified if the defendant only trespassed in order to put out a fire on the property, or to rescue someone drowning in a pool on the property.

f)        Lawful capacity of office: This defense is generally available to public servants and first responders, such as police officers, firefighters, etc. It usually protects the first responder from responsibility for otherwise criminal actions that the first responder must perform as an appointed agent of the jurisdiction in the course and scope of their duties. For example, A judge who sentences a man to die for a crime cannot be charged with attempted murder if the convicted man is later exonerated.

g)       Legal duty: This "lawful capacity of office" defense can also apply to civilians who do not hold such a position, but whose assistance is requested by someone who does, such as a police officer. A person who witnesses a criminal being chased by police who yell "stop that man!", and obliges resulting in injury to the criminal, cannot be charged with assault or sued for personal injury.

h)       Self defense: Self-defense is, in general, some reasonable action taken in protection of self. An act taken in self-defense often is not a crime at all; no punishment will be imposed. To qualify, any defensive force must be proportionate to the threat. Use of a firearm in response to a non-lethal threat is a typical example of disproportionate force.

i)        Duress: One who is "under duress" is forced into an unlawful act. The duress must involve the threat of imminent peril of death or serious injury, operating on the defendant's mind and overbearing his will. If one puts himself in a position where they could be threatened, duress may not be a viable defense.

j)        Impossibility defense: It is a criminal defense occasionally used when a defendant is accused of a criminal attempt that failed only because the crime was factually or legally impossible to commit.

k)       Infancy: The accused is an infant and could not do the act complained of.

l)        Provocation: It may be a defense by excuse or exculpation alleging a sudden or temporary loss of control (a permanent loss of control is in the realm of insanity) as a response to another's provocative conduct sufficient to justify an acquittal, a mitigated sentence or a conviction for a lesser charge.

m)     Alibi: The accused may attempt to prove that s/he was in some other place at the time the alleged offense was committed.

STRUCTURE AND JURISDICTION OF COURTS

1.                   INTRODUCTION:

·       The Judiciary, with the power to hear and determine disputes, primarily of criminal and civil nature, is a system of Courts that not only provides a mechanism for the resolution of disputes but also interprets and applies the law in the name of the State, (this includes the Constitution, Statutes and Regulations). The interpretation and application of the law is generally dependent on the facts of each case.

2.                   JURISDICTION AND HIERARCHY OF COURTS:

·       Jurisdiction is the right to use power of an official body to make decisions on questions of fact and law.

·       Hierarchy is a system by which members of an organization are grouped and arranged according to rank.

·       In Samuel Kamau Macharia & Another v. Kenya Commercial Bank Ltd. & 2 Others,² it was held that:

A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings. This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant).³ Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a Court or Tribunal by Statute law.

·       In Owners of Motor Vessels Lillian v. Caltex Oil Ltd.,⁴ it was held that:

A question of jurisdiction ought to be raised at the earliest step and the Court must decide the issue right away. Jurisdiction is everything. Without it, a Court has no power to make one step. Where a Court has no Jurisdiction there would be no basis for a continuation of proceedings pending other evidence and a Court of law downs its tools in respect of the matter before it, the moment it holds the opinion that it is without jurisdiction.

·       There are two levels of Judiciary in Kenya. These are:

a)       Superior Courts i.e., the Supreme Court of Kenya at the top, followed by the Court of Appeal, then High Courts, Employment and Labour Relations Court, Land and Environment Court;⁵

b)       Subordinate Courts i.e., Magistrates Court,⁶ Court Martial⁷ and Kadhi Court.⁸

 

² 2012 eKLR.

³ Constitutional Application Number 2 of 2011.

⁴ 989 eKLR.

⁵ Art.162(1), the Constitution of Kenya, 2010.

⁶ The Presiding Judicial Officer in Magistrate Court could be a Chief Magistrate, Senior Principal Magistrate, Senior Resident Magistrate, Resident Magistrate or Principal Magistrate.

⁷ Article 169 (1) (c) of the Constitution of Kenya, 2010 and Part IX of the Kenya Defence Force Act, 2012 creates the Courts Martial. This is the Military Court where matters involving members of the Kenya Defense Forces are heard. Appeals from the Court are heard by the High Court as provided under S.186 of the Defence Act.

3.                   TYPES OF JURISDICTION:

a)       Geographical/ territorial: The jurisdiction to hear and determine cases defined by law based on designated areas.

b)       Original jurisdiction: The jurisdiction of a Court to hear the case the first time.

c)       Inherent jurisdiction: The jurisdiction for a specific Court to hear specific types of cases that may not be specifically provided for.

d)       Pecuniary/monetary: The jurisdiction to hear and determine cases is defined by law based on designated financial value levels.

e)       Appellate jurisdiction: The jurisdiction of a Court to hear a case the subsequent to a trial (on appeal).

f)        First instance jurisdiction: Jurisdiction of a Court to hear a case for first time.

g)       Second instance jurisdiction: Jurisdiction of a Court to hear a case for second time on appeal.

h)       Limited jurisdiction: Jurisdiction of a Court is restricted to certain conditions.

i)        Unlimited jurisdiction: Jurisdiction of a Court is not restricted to certain conditions.

j)        Concurrent jurisdiction: It exists where more than one Court can claim power to decide a case. For e.g., more than one County might have jurisdiction where the crime begins in one County and continues into another.

4.                   SUPREME COURT OF KENYA:

4.1                INTRODUCTION:

·       The ‘Supreme Court of Kenya,’ being the Court of last resort, is the highest Court in the Judiciary while the lowest is the ‘Magistrates Court.’ The decisions of the Apex Court are binding on all Courts in Kenya, other than itself.⁹

·       A judgment, decree, or order of the Supreme Court may be enforced by the High Court as if it had been given or made by the High Court itself.¹⁰

4.2                COMPOSITION OF THE SUPREME COURT:

·       As per the provisions of Article 163 of the COK and Section 5 of the Supreme Court Act, 2011, Supreme Court of Kenya consists of seven persons who takes precedence in the following order:

a)       Chief Justice, who is the President of the Court;

b)       Deputy Chief Justice, who deputises for the Chief Justice and is the Vice-President of the Court; and

c)       Five other Judges. These Judges take precedence among themselves, according to the dates on which they respectively took office as Judges of the Supreme Court. However, where two or more Judges took office on the same day, precedence among them can be determined according to professional seniority with the most senior Judge taking precedence over the others.

·       The Supreme Court is properly constituted for the purposes of its proceedings if it is composed of five Judges.¹¹ Section 4 of the Supreme Court Act, 2011 provides that a vacancy in the Court cannot affect the jurisdiction of the Court.

⁸ Under Art.170 (5), of the Constitution of Kenya, the jurisdiction of a Kadhis’ Court is limited to the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion and submit to the jurisdiction of the Court.

⁹ Art.163(7), the Constitution of Kenya, 2010.

¹⁰ S.27, the Supreme Court Act, 2011.

¹¹ S.23, the Supreme Court Act, 2011.

4.3                JURISDICTION OF THE SUPREME COURT:

·       Under Article 163(3) and Part III of the Supreme Court Act, 2011, the Apex Court has:

a)       exclusive original jurisdiction to hear and determine presidential election disputes arising under Article 140;¹²

b)       appellate jurisdiction to hear and determine appeals from the Court of Appeal and any other Court or Tribunal. Accordingly, there are circumstances where direct appeals can be made against a decision made, a conviction entered, or a sentence imposed in proceedings in any Court or Tribunal, other than the Court of Appeal to the Supreme Court but only in exceptional circumstances as contemplated by Section 17 of the Supreme Court Act, 2011 i.e., where Court is satisfied that:

i.         it is necessary, in the interests of justice, to hear and determine the proposed appeal; and

ii.       there are exceptional circumstances that justify taking the proposed appeal directly to the Court. Appeals can lie from the Court of Appeal to the Supreme Court:

i.         as a matter of right in any case involving the interpretation or application of the provisions of the Constitution. In this case, appeals to the Court need not be heard with the leave of the Court.¹³; and

ii.       in any other case in which the Supreme Court, or the Court of Appeal, certifies that a matter of ‘general public importance is involved’. Appeals to the Supreme Court can be heard only with the leave of the Court.¹⁴ The Supreme Court is empowered, on review, to affirm, vary or overturn any certification of a matter done by the Court of Appeal.¹⁵

General public importance is involved: Article 163(4) of the COK and Section 16 of the Supreme Court Act, 2011 provides that the Supreme Court cannot grant leave to appeal to the Court unless it is satisfied that it is in the ‘interests of justice’ for the Court to hear and determine the proposed appeal.¹⁶ Here ‘interests of justice’ implies that the appeal can be considered by the Supreme Court only if:

i.         involves a matter of general public importance; or

ii.       a substantial miscarriage of justice may occur unless the appeal is heard.

In an English case, Glancare Teorada v. A. N. Board Pleanala,¹⁷ the Court held that a matter of ‘general public importance’ should be one of exceptional public significance, in that:

i.         The matter goes substantially beyond the facts of the case, and the appropriate case is not whether there is a point of law, but whether the point of law transcends the facts of the individual case;

ii.       The law in question should stand in a state of uncertainty, so that it is for the common good that such law be clarified, so that to enable the Court to administer the law, not only in the instant case, but also in future cases;

iii.     The point of law must have arisen out of a decision of the Court, and not from a discussion of a point in the course of the hearing.

¹² S.12, the Supreme Court Act, 2011.

¹³ S.15(1), the Supreme Court Act, 2011.

¹⁴ S.15(1), the Supreme Court Act, 2011.

¹⁵ Art.163(5), the Constitution of Kenya, 2010.

¹⁶ The Supreme Court must state its reasons briefly and in general terms for refusing to grant leave to appeal to the Court, S.18(1), the Supreme Court Act, 2011.

¹⁷ (2006) FEHC 250.

The Court of Appeal in Kenya had a chance to consider the concept of ‘general public importance’ in

Murai v. Wainaina¹⁸ where it held that an:

“appeal is of public importance as it touches on the subject of land rights, and will not only affect the parties to the appeal, but will also affect a large number of original land owners, by depriving them [and] causing economic and social upheaval…”

In Hermanus Phillipus Steyn case,¹⁹ the Supreme Court of Kenya also held the same and went ahead to establish the principles governing the interpretation of the concept of matters of ‘general public importance’ which, inter alia, include:

i.         the importance of the matter must be public in nature and must transcend the circumstances of the particular case so as to have a more general significance;

ii.       Where the matter involves a point of law and that is for the common good that such law should be clarified so as to enable the Courts to administer the law, not only in the case at hand, but also in such cases in future.”

iii.     The intending applicant has an obligation to identify and concisely set out the specific elements of “general public importance” which s/he attributes to the matter in which certification is sought;

iv.      For an appeal to the Supreme Court to be certified as one which involves matter of general public importance, it is imperative upon the appellant to prove and to demonstrate that the appeal satisfies the principle laid out in Hermanus Phillipus Steyn case.

c)       at the request of the National/County Government or any State organ, the Supreme Court may give its advisory opinion with respect to any matter concerning County Government. Such advisory opinion must however contain the reasons for the opinion and any Judge who differs with the opinion of the majority must give his/her opinion with reasons.²⁰

d)       State of emergency: The Court determines the validity of a declaration of a state of emergency; an extension of such a declaration or any legislation enacted or action taken in consequence of such a declaration.²¹

e)       Special jurisdiction: To ensure that the ends of justice are met, the Supreme Court can also either on its own motion, or on the application of any person, review the judgments and decisions of any Judge:

i.         removed from office on account of a recommendation by a Tribunal appointed by the President; or

ii.       removed from office pursuant to the Vetting of Judges and Magistrates Act, 2011; or

iii.     who resigns or opts to retire in consequence of a complaint of misconduct or misbehaviour.²² However, the Court is required to conduct a preliminary enquiry to determine the admissibility of the matter. During the process, the Court is empowered to call for evidence.²³

5.                   COURT OF APPEAL:

·       Location: It is housed at the Supreme Court building in Nairobi but it is decentralized and currently has a total of six registries namely; Nairobi, Mombasa, Nyeri, Kisumu, Nakuru and Eldoret.

¹⁸ Civil Application No.4 NAI 9/1978.

¹⁹ Hermanus Phillipus Steyn v. Giovanni Gnechi Ruscone, Civil Application No. 4 of 2012.

²⁰ S.13, the Supreme Court Act, 2011.

²¹ Art.58(5), the Constitution of Kenya, 2010.

²² S.14, the Supreme Court Act, 2011.

²³ S.14, the Supreme Court Act, 2011.

·       The Court comprises a maximum of 30 Judges as provided for under Section 7(1) of the Judicature Act, Cap 8. The Judges of the Court elect a President from among themselves.

·       Under Article 164 of the Constitution of Kenya, 2010, the Court of Appeal consists of not fewer than 12 Judges.

·       Under Art.166 of the Constitution of Kenya, each Judge of the Court of Appeal can be appointed from among persons who have:

a)       at least 10 years’ experience as a Superior Court Judge, or distinguished academic, or legal practitioner, or such experience in other relevant legal field; or

b)       been either a Superior Court Judge, or distinguished academic, or judicial officer, or such experience in other relevant legal field for a period amounting, in the aggregate, to 10 years.

·       Jurisdiction: The jurisdiction of the Court of Appeal is not unlimited. It has and can only exercise such jurisdiction and powers as established by an Act of Parliament, namely the Appellate Jurisdiction Act, Cap

9.24 The same is also governed by the Court of Appeal Rules.

·       The Court has jurisdiction to hear both criminal and civil appeals from the High Court and any other Court or Tribunal.

·       The Court has the power to:

a)       confirm, reverse or vary the decision of the superior Court (an expression referring to the High Court) with such directions as may be appropriate;

b)       order a new trial, and

c)       make any necessary incidental or consequential orders including orders as to costs.²⁵

·       The President of the Court of Appeal of Kenya formally issued the Court of Appeal Civil Appeals and Applications Practice Directions, 2015 that guide the Court in its functioning.

·       In the case of Republic v. Onyango,²⁶ it was held that the jurisdiction of the Court of Appeal is derived from Statute and the Court has no inherent jurisdiction. The Court refused to entertain a second appeal from the decision of a Court Martial since there was no statutory provision providing for the same.

·       Since 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 execution 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.

·       Process: Three Judges of the Court of Appeal sit and hear appeals. The Court’s decisions are authoritative, binding and citable as precedent by the High Court and Magistrate Courts in Kenya.

6.                   HIGH COURT:

·       As per Article 165 of the COK, a High Court consisting of a number of Judges (a maximum of 150 Judges,²⁷ one being the Principal Judge²⁸ elected by the Judges of the Court) is required to established.

 

 

²⁴ S.3, the Appellate Jurisdiction Act, Cap 9.

²⁵ S.31, the Appellate Jurisdiction Act, Cap 9.

²⁶ (1983) eKLR (Criminal Appeal No. 91 of 1983).

²⁷ S.7, the Judicature Act, Cap 8.

²⁸ Section 6 of the High Court (Organization and Administration) Act, 2015 provides that the Principal Judge is responsible to the Chief Justice for the overall administration and management of the High Court; ensuring of orderly and prompt conduct of the business of the Court;

Section 4 of the High Court (Organization and Administration) Act, 2015 however, provides that there cannot be more than two hundred Judges. The Court is deemed to be duly constituted despite any vacancy in the office of the Principal Judge or other Judge.²⁹

·       The High Court has several Departments established under it, i.e., a) Family and Children Court, b) Commercial and Admiralty Court, c) Constitutional and Judicial Review Court; d) Land and Environment Court - Land and environment matters, including appeals from Land Tribunals; e) Criminal Court; and f) Industrial Court – dealing with labour and employment matters.

6.1                VENUE AND DATE OF SITTINGS:

·       Location: There are at least 20 High Court stations countrywide.

·       Powers of High Court: Section 69 of the CrPC empowers the High Court to inquire into and try any offence subject to its jurisdiction at any place where it has power to hold sittings.

·       Place and date of sessions of the High Court: Section 70 of the CrPC also provides that in the exercise of its original criminal jurisdiction, the High Court is required to hold its sittings at such places and on such days as the Chief Justice may direct. The Registrar of the High Court must give notice beforehand of all such sittings.

·       Ordinary place of inquiry and trial: Section 71 of the CrPC also provides that every offence shall ordinarily be tried by a Court:

a)       within the local limits of whose jurisdiction it was committed; or

b)       within the local limits of whose jurisdiction the accused was apprehended; or

c)       is in custody on a charge for the offence; or

d)                                      has appeared in answer to a summons lawfully issued charging the offence.

·       Trial where place of offence is uncertain: Section 74 also provides that when:

a)       it is uncertain in which of several local areas an offence was committed; or

b)       an offence is committed partly in one local area and partly in another; or

c)       an offence is a continuing one, and continues to be committed in more than one local areas; or

d)       an offence consists of several acts done in different local areas,

it may be tried by a Court having jurisdiction over any of those local areas.

·       Offence committed on a journey: Section 75 provides that an offence committed whilst the offender is in the course of performing a journey or voyage may be tried by a Court through or into the local limits of whose jurisdiction the offender or the person against whom or the thing in respect of which the offence was committed passed in the course of that journey or voyage.

·       High Court to decide in cases of doubt: Section 76 provides that whenever a doubt arises as to the Court by which an offence should be tried, the Court entertaining the doubt may report the circumstances to the High Court, and the High Court shall decide by which Court the offence shall be inquired into or tried. Any such decision of the High Court is final and conclusive, except that it shall be open to an accused person to show that no Court in Kenya has jurisdiction in the case.

 

constitution of Benches of two or more Judges in consultation with the Chief Justice; and undertaking of such other duties as may be assigned by the Chief Justice.

²⁹ S.4, the High Court (Organization and Administration) Act, 2015.

·       Power of High Court to change venue: Section 81 provides that whenever it is made to appear to the High Court that:

a)       a fair and impartial trial cannot be had in any criminal Court subordinate thereto; or

b)       some question of law of unusual difficulty is likely to arise; or

c)       a view of the place in or near which any offence has been committed may be required for the satisfactory trial of the offence; or

d)       an order issued will tend to the general convenience of the parties or witnesses; or

e)       such an order is expedient for the ends of justice or is required by any provision of the Code, it may order that:

i.         an offence be tried by a Court competent to try the offence;

ii.       a particular criminal case or class of cases be transferred from a criminal Court subordinate to its authority to any other criminal Court of equal or superior jurisdiction;

iii.     an accused person be committed for trial to itself.

The High Court may act on the report of the lower court, or on the application of a party interested, or on its own initiative. Every application for the exercise of the power must be made by motion, which shall, except when the applicant is the DPP, be supported by affidavit. An accused person making any such application is required give to the DPP notice in writing of the application, together with a copy of the grounds on which it is made, and no order can be made on the merits of the application unless at least twenty-four hours have elapsed between the giving of notice and the hearing of the application. Besides, when an accused person makes any such application, the High Court may direct him to execute a bond, with or without sureties, conditioned that he will, if convicted, pay the costs of the prosecutor.

6.2                JURISDICTION OF THE HIGH COURT:

Under Article 165(3) of the COK, the High Court has:

a)       Unlimited original jurisdiction in criminal and civil matters: The Court of Appeal in Delamere Case³⁰

expressed its understanding of the High Court’s unlimited original jurisdiction in the following terms:

The High Court can hear all matters without regard to territory or the subject matter in dispute. In criminal matters, it has jurisdiction to try the pettiest of offenders to the murderer. Likewise, in civil matters it has the jurisdiction to try a claim for the meanest amount without regard to the origin of the claim.

b)       Enforcement Jurisdiction: The Court has 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.³¹ Any matter in this regard must be heard by an uneven number of Judges, being not less than three, assigned by the Chief Justice.

The COK empowers the Chief Justice of Kenya to promulgate the practise and procedure rules in relation to the High Court’s enforcement jurisdiction.³² In this light, the C. J., Dr. Willy Mutunga made rules of practice and procedure for the enforcement of the Bill of Rights cited as the  Constitution of Kenya

³⁰ Republic v. Thomas Patrick Gilbert Cholmondeley, [2008] eKLR.

³¹ Art.22(2), the Constitution of Kenya, 2010.

³² Art.22(3), the Constitution of Kenya, 2010.

(Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 commonly referred to as ‘Mutunga Rules’.³³ The Rules require one to approach the Court by way of a ‘Petition,’ set out in Form A in the Schedule,³⁴ that discloses the:

i.         petitioner’s name and address;

ii.       facts relied upon;

iii.     constitutional provision violated;

iv.      the nature of injury caused or likely to be caused to the petitioner or the person in whose name the petitioner has instituted the suit; or in a public interest case to the public, class of persons or community;

v.       details regarding any civil or criminal case, involving the petitioner or any of the petitioners, which is related to the matters in issue in the petition;

vi.      petition shall be signed by the petitioner or the advocate of the petitioner; and

vii.    relief sought by the petitioner.

The rules are however flexible, even allowing for an oral application, a letter or any other informal documentation which discloses denial, violation, infringement or threat to a right or fundamental freedom.³⁵ The Mutunga Rules encompass a number of provisions that were not in the Gicheru rules i.e.,:

i.         Enforcement of Intellectual Property Rights: The new Constitution under Article 40 as read with Article 260 extends the right of property to cover both real and intangible property rights.

ii.       Introduction of the “Friend of the Court” (amicus curiae): The rules provide that the Court may allow any person with expertise in a matter before the Court to appear as a ‘friend of the Court’ with leave, or by the Court’s own motion.³⁶

iii.     Inclusion of the overriding objective: The Court in exercising its powers is to ensure just, expeditious, and proportionate and resolution of all cases.³⁷

iv.      Alternative Dispute Resolution: The rules provide that the Court may refer a matter for determination by alternative dispute resolution mechanism.³⁸ This is to further the overriding objective which seeks the timely disposal of cases and facilitates access to justice for all persons.³⁹

c)       Jurisdiction to grant appropriate reliefs: In enforcement of fundamental rights, the High Court may grant appropriate relief including:

i.         a declaration of rights                                                                    v. an injunction

ii.       a conservatory order                                                                      vi. an order for compensation

iii.     an order of judicial review

iv.      a declaration of invalidity of any law that denies, violates, infringes or threatens a right or fundamental freedom in the bill of rights and is not justifies under the Constitution.

 

 

³³ The rules replaced the Gicheru Rules and Bernard Chunga Rules.

³⁴ Rule 10(2), the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. ³⁵ Rule 10(3), the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. ³⁶ Rule 6, the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013.

³⁷ Rule 4, the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013.

³⁸ Rule 31, the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013.

³⁹ Rule 5(c), the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. Art.48, the

Constitution of Kenya, 2010.

d)       Appellate jurisdiction: The Court has jurisdiction to hear an appeal from a decision of a ‘Tribunal’ appointed to consider the removal of a person from office, other than a Tribunal appointed to inquire into the matter of removing a President on the grounds of incapacity. The report of such Tribunal is passed to the National Assembly for voting on whether to ratify the report of removing the President or not. Besides, the Court has jurisdiction to hear an appeal from ‘Subordinate Courts.’ The appeal may be on a matter of fact or law.⁴⁰ 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 as to the extent or legality of the sentence.⁴¹

e)       Interpretative jurisdiction: The Court has jurisdiction to hear any question respecting the interpretation of the Constitution including the determination of:

i.         the question whether any law is inconsistent with or in contravention of the Constitution;

ii.       the question whether anything said to be done under the authority of the Constitution or of any law is inconsistent with, or in contravention of the Constitution;

iii.     any matter relating to Constitutional powers of State organs in respect of County Governments;

iv.      any matter relating to the Constitutional relationship between the levels of Government; and

v.       a question relating to conflict of laws under Article 191 i.e., a conflict between National and County legislation in respect of matters falling within the concurrent jurisdiction of both levels of Government. Any matter in the above five provisions must be heard by an uneven number of Judges, being not less than three, assigned by the Chief Justice.

f)        Admiralty jurisdiction: Section 4 of the Judicature Act, Cap 8 provides that the High Court acts as a Court of admiralty and as such is empowered to decide “matters arising on the high seas, or in territorial waters, or upon any lake, or other navigable inland waters in Kenya”. The law applicable is exercised in “the conformity with international law and the comity (association) of nations.”

g)       Supervisory jurisdiction: Except for superior Courts, the High Court has supervisory jurisdiction over:

i.         Subordinate Courts; and

ii.       any person, body or authority exercising a judicial or quasi-judicial function.

Accordingly, the High Court may call for the record of any proceedings before any Subordinate Court or person, body or authority and may make any order or give any direction it considers appropriate to ensure fair administration of justice.

h)       Issuance of writs: In exercise of its supervisory powers under judicial review, the High Court may issue any of the prerogative orders of Habeas corpus,⁴² Mandamus,⁴³ Prohibition,⁴⁴ Certiorari.⁴⁵

⁴⁰ S.347, the Criminal Procedure Code, Cap 75.

⁴¹ S.348, the Criminal Procedure Code, Cap 75.

⁴² Habeas corpus means ‘produce the body, dead or alive.’ This order is issued where the personal liberty of a person is curtailed by arrest and confinement without legal justification. By issuing this order, the High Court call upon the person holding the body to answer by what authority is s/he continuing to withhold the individual. The order aims at securing release of persons held apparently without legal justification.

⁴³ The literal meaning of mandamus is “we command”. This is an order issued by the High Court to any person or body commanding him or them to perform a public duty imposed by law or State. The order is available to compel Tribunals to do their duty e.g., to compel a licensing board to issue a license on application of him who has met the prescribed criteria.

⁴⁴ This is an order issued by the High Court to prevent an inferior Court or Tribunal from hearing or continuing to hear a case either in excess of its jurisdiction, or in violation of the rules of natural justice.

⁴⁵ The term means to “be informed”. This is an order issued by the High Court directed at an inferior Court body exercising judicial or quasi- judicial functions to have the records of the proceedings presented to the High Court for the following purposes, to: Secure an impartial trial; review an excess of jurisdiction; challenge an ultra vires act; correct errors of law on the face of the record; quash a judicial decision made against the rules of natural justice. An order of certiorari can also be issued whenever a body of persons having legal authority to determine questions affecting the rights and having a duty to act judicially, acts in excess of their legal authority. It therefore serves to quash what has been done irregularly.

i)        Revisional jurisdiction: Section 362 of the CrPC provide for revision of orders from the Subordinate Courts by the High Court. The High Court may call for and examine the record of any criminal proceedings before any Subordinate Court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such Subordinate Court. Section 364 also provides that the High Court does not have to give the accused a hearing if the order to be revised relates to failure by the Subordinate Court to pass sentence it was required to pass under the written law creating the offence concerned. Moreover, in exercising its revisional jurisdiction, the High Court cannot:

i.         inflict greater punishment for the offence committed than might have been inflicted by the Court which imposed the sentence;

ii.       convert a finding of acquittal into one of conviction.

Unlike is the case with regard to the High Court’s appellate jurisdiction where appeals from Subordinate Courts must be heard by two Judges of the High Court unless the Chief Justice directs that they be heard by one Judge, all proceedings before the High Court in its revisional jurisdiction may be heard by one judge, provided that when the Court is composed of more than one Judge and the Court is equally divided in opinion, the sentence or order of the Subordinate Court shall be upheld.⁴⁶

·       The High Court does not have jurisdiction in respect of the following matters:

iv.      Those reserved for the exclusive jurisdiction of the Supreme Court; or

v.        Those falling within the jurisdiction of the Employment and Labour Relations, and the Land and Environment Court

·       The High Court does not have jurisdiction in respect of the following matters:

i.         Those reserved for the exclusive jurisdiction of the Supreme Court; or

ii.       Those falling within the jurisdiction of the Employment and Labour Relations, and the Land and Environment Court.

7.                   MAGISTRATE COURTS:

·       Article 169 of the COK and the Magistrate Courts Act, Cap 10 establishes the Magistrate Courts. Their jurisdiction is both criminal and civil cases.

·       Location: Magistrate Courts are located country-wide in major towns. The Courts in Nairobi are divided into two: the Courts that deal with criminal cases, Nairobi, Makadara and Kibera Law Courts; and Milimani Commercial Courts that deal with civil and commercial disputes. The other stations have both criminal and civil jurisdiction within the same Court but on different days.

·       In the Magistrates’ Courts, there are certain Special Courts set out to enforce certain specific laws, i.e.,

a)       Traffic Court: Determines cases based on offences under the Traffic Act, Cap 403.

b)       Children’s Court: Determines welfare of the child in Court proceedings under the Children’s Act, 2001.

c)       City/Municipal Court: Enforces city by-laws under the local Government Acts.

d)       Anti- Corruption Court: Determines cases under the Anti-Corruption and Economic Crimes Act, 2003.

 

⁴⁶ S.366, the Criminal Procedure Code, Cap 75.

·       Resident Magistrate’s Court: Under the Magistrate’s Court Act, the Resident Magistrate’s Court has jurisdiction throughout Kenya.⁴⁷ The Courts exercises powers and jurisdiction in criminal proceedings as conferred on it by the CrPC or any other written law. A Resident Magistrate’s Court is presided over by Magistrates of various ranks starting from a Resident Magistrate all the way to the Chief Magistrate, which is the highest rank in the magistracy.

·       District Magistrates Court: It exercises power and jurisdiction over any such class of cases designated by the Judicial Service Commission.⁴⁸ It has jurisdiction throughout the District in which it is established. The Chief Justice may also extend the jurisdiction of the Court by notice in the Kenya Gazette. The decision of a District Magistrate class II is amenable to appeal and reversal by a Resident Magistrate as happened in the case of Republic v. Jotham Njoroge Kimani⁴⁹ where a District Magistrate of the II Class had imposed a sentence of 7 years in excess of his jurisdiction that allowed imprisonment for a term not exceeding two years. This was termed illegal and the sentence was revised to two years of imprisonment by the Resident Magistrate.⁵⁰

·       Unlike the High Court which may pass any sentence authorized by law⁵¹ for a criminal offence, the kind of sentence that may be imposed by a Subordinate Court depends on the class/rank of the officer presiding, geographical and pecuniary considerations.

·       The Judicial Service Commission may, by notice in the Gazette, extend the sentencing jurisdiction either generally or in relation to particular offences.⁵²

·       Section 5 of the CrPC indicates that where other offences not provided by the Penal code are committed, they may be tried by the High Court or any such Subordinate Court as stipulated by the Fifth Column of the First Schedule to the Code, if not by the Statute creating the offence.

ARREST

1.                   INTRODUCTION:

·       A lawful mechanism exists upon which persons who have committed or are suspected of having committed offences and who seek to elude the criminal process may be apprehended, restrained and brought before Court to be dealt with in accordance with the law. That mechanism is termed as ‘arrest.’

2.                   DEFINITION OF THE TERM ‘ARREST’:

·       The CrPC does not define the term ‘arrest.’

·       ‘Arrest’ can be defined as the restraint imposed on a person’s personal liberty pursuant to a written law or to orders of a competent authority for the purposes preventing the commission of, or charging that person with, an offence.

·       Arrest may be done with or without a warrant by a police officer, private person and/or Magistrate.

·       In Hussein v. Chang Fook,⁵³ Lord Devlin stated that an arrest:

a)       occurs when a police officer states in certain terms that he is making an arrest; or

 

⁴⁷ S.3(2), the Magistrate Courts Act, Cap 10.

⁴⁸ S.6, the Magistrate Courts Act, Cap 10.

⁴⁹ (2005) eKLR (Revision 4 of 2005).

⁵⁰ See also, Republic v. Kuvua, (2005) 2 KLR 156.

⁵¹ S.6, the Criminal Procedure Code, Cap 75. ⁵² S.8, the Criminal Procedure Code, Cap 75. ⁵³ (1970) 2 WLR 441.

b)       occurs when an officer uses force to restrain the individual concerned; or

c)       occurs when by words or conduct the officer makes it clear that he will use force if necessary to restrain the individual from going where he wants to go; but

d)       does not occur where he stops an individual to make inquiries.

3.                   RIGHTS OF AN ARRESTED PERSON: What are the rights of an accused person? Article 50 of the Constitution of Kenya, 2010 states that every accused person has a right to:

a)       have any dispute that can be resolved by the application of law decided in a fair and public hearing before a Court or, independent Tribunal or body;

b)       be presumed innocent until the contrary is proved;

c)       be informed of the charge, with sufficient detail to answer it;

d)       have adequate time and facilities to prepare a defence;

e)       a public trial before a Court established under the Constitution;

f)        have the trial begin and conclude without unreasonable delay;

g)       be present when being tried, unless the conduct of the accused person makes it impossible for the trial to proceed;

h)       choose, and be represented by, an advocate, and to be informed of this right promptly;

i)        have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly;

j)        remain silent, and not to testify during the proceedings;

k)       be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence;

l)        adduce and challenge evidence;

m)     refuse to give self-incriminating evidence;

n)       have the assistance of an interpreter without payment if the accused person cannot understand the language used at the trial;

o)       not to be convicted for an act or omission that at the time it was committed or omitted was not an offence in Kenya, or a crime under the international law;

p)       not to be tried for an offence in respect of an act or omission for which the accused person has previously been either acquitted or convicted;

q)       the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing; and

r)        if convicted, to appeal to, or apply for review by, a higher Court as prescribed by law.

s)        be given information in a language that the accused understands;

t)        have evidence obtained in a manner that violates any right or fundamental freedom in the Bill of Rights excluded if the admission of the evidence would render the trial unfair, or would otherwise be detrimental to the administration of justice.

u)       have during trial, a copy of the record of the proceedings of the trial, on request, except where the accused person is charged with an offence, other than an offence that the Court may try by summary procedures.

v)       have a copy of the record of the proceedings within a reasonable period after they are concluded, in return for a reasonable fee as prescribed by law.

w)     apply for review of a judgment passed by the Supreme Court if new and compelling evidence has become available.

x)       all the rights and fundamental freedoms in the Bill of Rights, when detained or held in custody.

4.                   LEGAL PROVISIONS RELATING TO ARREST:

The CrPC provides the following:

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

·       Where a person forcibly resists the endeavour to arrest: or attempts to evade the arrest, the person effecting the arrest may use all reasonable means necessary to effect the arrest.⁵⁴

·       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 and demand that the occupiers of that house allow him free ingress and reasonable facilities for the search.⁵⁵

·       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 as he has a warrant.⁵⁶ 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.

·       The person effecting an arrest is authorized to break out of any house: or place in order to liberate himself or any other person who, having lawfully entered for the purpose of making an arrest, is detained therein.⁵⁷ The breaking action is only valid where the person effecting an arrest has:

a)       made notification of his entry;

b)       stated his purpose

c)       made demand of admittance

d)       been denied or is otherwise unable to gain admittance.⁵⁸

·       Where the place is an apartment in the actual occupancy of a woman: who, according to custom, does not appear in public, the person effecting an arrest must, before entering those premises, give notice to the woman to withdraw and must afford her every reasonable facility for withdrawing; whereupon he may break open the apartment and enter it.⁵⁹

·       The person arrested should not be subjected to more restraint: than is necessary to prevent his escape.⁶⁰

·       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.⁶¹

 

⁵⁴ S.21, the Criminal Procedure Code, Cap 75. See also, Republic v. Waweru, (1982) KLR 137.

⁵⁵ S.22(1), the Criminal Procedure Code, Cap 75. ⁵⁶ S.22(2), the Criminal Procedure Code, Cap 75. ⁵⁷ S.23, the Criminal Procedure Code, Cap 75.

⁵⁸ S.22(2), the Criminal Procedure Code, Cap 75. ⁵⁹ S.22(2), the Criminal Procedure Code, Cap 75. ⁶⁰ S.24, the Criminal Procedure Code, Cap 75.

⁶¹ S.25, the Criminal Procedure Code, Cap 75.

·       A police officer or any other authorized person 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.⁶² The State is fully immunized from liability for any loss or damage suffered by any person by reason of the detention of any aircraft, vessel or vehicle under the foregoing circumstances as such person is not entitled to damages or compensation.⁶³

·       When a police officer needs to search a woman: he has to ensure that the search is carried out by another woman, with strict regard to decency.⁶⁴

·       In case a search uncovers offensive weapons concealed about the person being arrested, the police officer shall deliver them to the Court or the officer before which or whom the officer or person making the arrest is required by law to produce the person arrested.⁶⁵

5.                   PERSONS WITH THE POWER OF ARREST:

a)            The police officer: who arrests without a warrant must, without any un-necessary delay, and subject to the provisions of bail in the CrPC, take or send the person arrested before a Magistrate having jurisdiction in the case or before an officer in charge of a police station.⁶⁶ Police should however use reasonable force while arresting.

b)            A private person: can arrest one who commits a cognizable offence or one he reasonably suspects to have committed a felony.⁶⁷ Or, where damage to property has been committed and the owner of the property or his servants or any other person he authorizes may arrest the offender.⁶⁸

Private persons should however use reasonable force just like police where the person to be arrested resists. Use of excessive force may lead to prosecution for various offences i.e., assault and unlawful confinement contrary to Sections 250 and 261 of the Penal Code, Cap. 63, respectively. In Uganda v. Muherwa,⁶⁹ a private person who used a weapon to incapacitate the deceased suspected to be a thief in the process of which he died was prosecuted and convicted of manslaughter.

The private person must then expeditiously take the arrested person to a police officer or, in the absence of a police officer, to a police station for the person to be re-arrested. The police officer in charge of station may release the person arrested where he deems that no sufficient evidence and no offence has been committed,⁷⁰ or may release the person upon execution of a bond of a reasonable amount, with or without sureties to appear before a Magistrate at a future date.⁷¹ However, this is subject to certain conditions, that:

a)       the offence is not of a capital nature;

b)       it is not practicable to bring the person arrested before an appropriate subordinate Court within 24 hours after he has been taken into custody;

⁶² S.26, the Criminal Procedure Code, Cap 75.

⁶³ S.26(2), the Criminal Procedure Code, Cap 75.

⁶⁴ S.27, the Criminal Procedure Code, Cap 75. ⁶⁵ S.28, the Criminal Procedure Code, Cap 75. ⁶⁶ S.33, the Criminal Procedure Code, Cap 75. ⁶⁷ S.34, the Criminal Procedure Code, Cap 75. ⁶⁸ S.34, the Criminal Procedure Code, Cap 75. ⁶⁹ (1972) E.R. 466.

⁷⁰ S.35 and 36, the Criminal Procedure Code, Cap 75.

⁷¹ S.36, the Criminal Procedure Code, Cap 75.

c)       the offence itself is not of a serious nature.

The officers in charge of police stations are under obligation to report to the nearest Magistrate the cases of all persons arrested without warrant within the limits of their respective stations; whether those persons have been admitted to bail or not.⁷² These apprehension reports are intended to curtail arbitrary arrest and detention of persons by police officers in that they afford courts the opportunity to know, and make further inquiries and issue directions respecting the circumstances under which citizens within their jurisdiction have been deprived of their personal liberty.

c)            A Magistrate: has power to personally arrest or order the arrest of any person who commits an offence in his presence within the local limits of his jurisdiction whereupon he may commit the offender to custody unless he admits the offender to bail.⁷³ He may similarly arrest or direct the arrest in his presence within the local limits of his jurisdiction of any person for whose arrest he is competent at the time and in the circumstances to issue a warrant. In both of these instances the arrest is without a warrant.⁷⁴ This therefore implies that every person is bound to assist a Magistrate or Police Officer reasonably demanding his aid in the taking or preventing the escape of another person whom the Magistrate or Police Officer is authorized to arrest and in the prevention or suppression of a breach of the peace, or in the prevention of injury attempted to be committed to any railway, canal, telegraph or public property.⁷⁵ It was stated in Republic v. Saidi Bakari Kionywaki⁷⁶ that in effecting an arrest, Magistrate acts as a judicial officer and not in an administrative capacity and cannot be subject to civil and criminal proceedings.

d)            Chiefs or Assistant Chief: The Chiefs’ Authority Act, Cap. 128 provides that any Chief or Assistant Chief knowing of a design by any person to commit an offence within the local limits of his jurisdiction may, if it appears to him that the commission of the offence cannot be otherwise prevented, arrest or direct the arrest of such a person and shall, without delay, take him to the nearest Police Station.⁷⁷

e)            Officers of the National Assembly: The National Assembly (Powers and Privileges) Act, Cap. 6 bestows upon every Officer of the National Assembly (i.e., any Officer of the Assembly, any person acting within the precincts of the Assembly under the orders of the Speaker and any Police Officer on duty within the precincts of the assembly), for the purposes of the act and of the application of the provisions of the criminal law, all the powers and privileges of a police officer.⁷⁸

f)              Anti-corruption officers: The Anti-Corruption and Economic Crimes Act, 2003 bestows upon the Secretary of the Ethics and Anti- Corruption Act, 2011 and Investigators the powers, privileges and immunities of a Police Officer.⁷⁹ The Secretary and investigators thus have power to arrest any person for and charge them with an offence, and to detain them for the purpose of an investigation, to the like extent as a Police Officer.⁸⁰

 

 

 

⁷² S.37, the Criminal Procedure Code, Cap 75. ⁷³ S.38, the Criminal Procedure Code, Cap 75. ⁷⁴ S.39, the Criminal Procedure Code, Cap 75. ⁷⁵ S.42, the Criminal Procedure Code, Cap 75. ⁷⁶ (1968) E.A. 195(T).

⁷⁷ S.8(2), the Chiefs’ Authority Act, Cap. 128. In Republic v. Lamabutu, the Court recognized Chiefs, Assistant Chiefs, Provincial Commissioners and District Commissioners as Police Officers.

⁷⁸ S.30, the National Assembly (Powers and Privileges) Act, Cap. 6.

⁷⁹ S.23(3), the Anti-Corruption and Economic Crimes Act, 2003.

g)            Pilots: The Convention on Offences and Certain other Acts Committed on Board Aircraft, 1963 provides that the aircraft commander may, when he has reasonable grounds to believe that a person has committed, or is about to commit, on board the aircraft, an offence, impose upon such person reasonable measures including restraint which are necessary.⁸¹

h)            Captains: The Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, 1988 provides that the master of a ship of a State party (flag State) may deliver to the authorities of any other State party (receiving State) any person who he has reasonable grounds to believe has committed one of the offences set forth in Article 3 which include any act of violence against a person on board a ship.⁸²

6.                   KINDS OF ARRESTS:

i.         Arrests without a warrant: There are instances when an arrest may be lawfully effected without a Court order or direction.⁸³ They include the apprehension of persons who:

a)       commit or are suspected to have committed cognizable offences,⁸⁴ namely, offences for which no warrant is needed in order for an arrest to be effected.⁸⁵ In Republic v. Hussen,⁸⁶ murder was held to be cognizable offence, hence a police officer could arrest without a warrant;

b)       commit a breach of the peace in the presence of a police officer;

c)       obstruct a police officer in the execution of his duty;

d)       escaped or attempts to escape from lawful custody;

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

f)        are reasonably suspected of being deserters from the armed forces;

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

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

i)        are reasonably suspected of having committed extraditable offences outside Kenya;

j)        are in procession of implements of house breaking for which they are unable to provide a lawful excuse;

k)       are reasonably suspected to be the subjects of a warrant of arrest;⁸⁷

l)        are found within the limits of the police station in circumstances suggestive that they are taking precautions to conceal their presence with a view to committing a cognizable offence;⁸⁸

m)     has committed or is suspected to have committed a non-cognizable offence, if when asked, he refuses to give details of his name and place of residence; or gives a name or residence which the officer has

 

 

⁸¹ Art.6, the Convention on Offences and Certain other Acts Committed on Board Aircraft, 1963.

⁸² Art.8, the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, 1988. ⁸³ ‘A warrant of arrest’ is a legal written document by a Judge or Magistrate that authorises an arrest of a person. ⁸⁴ An offence, where a police offer can arrest without a warrant.

⁸⁵ S.2, the Criminal Procedure Code, Cap 75.

⁸⁶ (1990) KLR 497.

⁸⁷ S.29, the Criminal Procedure Code, Cap 75, S.58, the National Police Service Act, 2011.

reason to believe to be false. Such a person may be arrested until such information is ascertained whereupon he shall be released with or without condition to appear before a Magistrate if so required.

n)       Under the National Police Service Act, 2011: The Act provides that any person who disobeys any lawful order given by any Police Officer:

·       regulating and controlling traffic and keeping order on and preventing obstructions in public places;

·       preventing unnecessary obstruction on the occasions of assemblies, meetings and processions on public roads and streets, or in the neighbourhood of places of worship during the time of worship therein shall be guilty of an offence, and may be arrested without a warrant unless he gives his name and address and satisfies the police officer that he will duly answer any summons or other proceedings which may be taken against him.⁸⁹

·       A person who fails to produce a licence, permit, certificate or pass within 48 hours when called upon to do so, may be arrested without a warrant unless he gives his name and address and otherwise satisfies the officer that he will duly answer any summons or any other proceedings which may issue or be taken against him or her.⁹⁰

·       A police officer may arrest without a warrant a person who fails to obey a reasonable signal given by a police officer in uniform requiring him to stop any vehicle or vessel unless the person gives his name and address and otherwise satisfies the police officer that the person will duly answer any summons or other proceedings which may issue or be taken against that person.⁹¹

·       A person who, for the purposes of obtaining admission into the National Police Service, knowingly uses or attempts to pass off a forged or false certificate, letter or other document may be arrested by a police officer without a warrant.⁹²

ii.          Arrests with a warrant: The CrPC provides that a Court may issue a warrant of arrest:

a)       before or after the time of hearing issue: against the person whom an accusation has been laid and summons issued;⁹³

b)       if the accused does not appear at the time and place appointed: in and by the summons, and his personal attendance has not been dispensed with, but no warrant is issued unless a complaint has been made upon oath;⁹⁴

c)       for a person who fails to appear when required even for the mention of his case: as happened in the case of Republic v. Abdi Hakim Alsafa;⁹⁵

d)       for bonded witnesses who fail to appear in Court to give evidence;

e)       for accused persons who have jumped bail or have absconded;⁹⁶

·       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.⁹⁷

 

⁸⁹ S.54, the National Police Service Act, 2011.

⁹⁰ S.56(2), the National Police Service Act, 2011.

⁹¹ S.57(3)(4), the National Police Service Act, 2011. ⁹² S.102(1), the National Police Service Act, 2011. ⁹³ S.100, the Criminal Procedure Code, Cap 75.

⁹⁴ S.101, the Criminal Procedure Code, Cap 75.

⁹⁵ (2007) eKLR: Misc. Cri. Appli. No. 301 of 2007.

·       The issuance of warrants involves the exercise of judicial discretion. As such, a warrant of arrest cannot be issued unless:

a)       the offence in question is indictable or is punishable with imprisonment;

b)       the person named in the warrant would not voluntarily appear in attendance, as required, hence the necessity of the warrant.

·       Arresting of higher ranking officers i.e., Cabinet Secretaries, Principal Secretaries. Because of protocol, it is important to issue a warrant of arrest against the Inspector General of Police to effect the arrest of such persons. The Inspector may delegate the functions of arresting.

·       Warrant of arrest remain in force until executed. They don’t expire.

·       Validity of a warrant: Every warrant must:

a)       bear the signature of the Judge or Magistrate issuing it;

b)       bear the seal of the Court;

c)       bear the name of the person or persons to whom it is directed;

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

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

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

g)       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.⁹⁸

ILLUSTRATION:

REPUBLIC OF KENYA

IN THE KIBERA LAW COURT AT NAIROBI CRIMINAL CASE NO. 127 OF 2017

TO

THE OFFICER COMMANDING STATION LANGATA STATION,

NAIROBI.

Whereas Robert Kipkemboi of I.D. No. 2874326, Sex – Male, aged 21 has this day been charged for disorderly conduct contrary to Section 60 of the Police Act, Cap 84 at Langata West Primary School at 2.00pm.

Therefore, you are hereby commanded forthwith to apprehend the said Robert Kipkemboi and bring him before this Court to answer to the said charges.

Dated this 24^th day of March 2017.

 

 

(Signature)

MAGISTRATE

 

⁹⁷ S.100, the Criminal Procedure Code, Cap 75.

⁹⁸ S.102(3), the Criminal Procedure Code, Cap 75.

PREPARATION OF CASE FILES

1.                   INTRODUCTION:

There are three important files: Police file, Advocate’s file and Court file.

2.                   THE POLICE FILE:

The following are the Police Sub-files:

a)       Sub-file ‘A’: Initial Report: The complainant/victim/witness will make a report/complaint to the Police Station. The report is recorded in the Occurrence Book (OB). The complaint is referred to an officer for investigations. This first report forms the ‘initial report’ in the police file.

A1

DIASPORA POLICE STATION CRIME AND INCIDENT REPORT

DATE:                           11/03/2014                                     TIME:                      0700hrs                                    

OFFENCE:                   ROBBERY WITH VIOLENCE CONTRARY TO SECTION 295 AS READ WITH 296(2) OF THE PENAL CODE, CAP 63.

POLICE STATION:                                                                               Diaspora Police Station

a)            DIVISION:                                                                 Rongai

b)   O.B No.:                                                                      12/20/02/2016

c)       DATE AND TIME OF INCIDENT: 20/02/2017 at 2300hrs

d)       PLACE:                                                                     Around Pink Cube Nightclub, Forest Road

e)       MAP REF:                                                                 N/A

f)        NAME AND TRIBE OF COMPLAINANT(S)

I.            MR LEO MUSUMBA WAMBUA, KIKUYU

II.            MS. WINNIE MUMO, KAMBA

g)       DESCRIPTION OF INCIDENT:

On 20^th of February 2017 at about 8.pm the two went to Pink Cube Nightclub along Forest Road in Nairobi to attend what they described as a ‘Boom Bash’ in celebration of Ms. Mumo’s surprise win of Kenya Shillings Ten Million only in a Sportpesa lottery. At about 11 pm, the two decided to retire to Mr. Leo Wambua’s house in Karen View Estate, also known as Rongai. While walking to the taxi stage, they were attacked by a gang of four persons armed with guns, under the glare of street lights. The assailants robbed them off Kenya Shillings Five Hundred thousand, watch, two mobile phone handsets and several other personal effects. After the incident Mr Musumba and his girlfriend reported the matter at Diaspora Police Station in Rongai.

Meanwhile Chief Inspector Miriam Kipkeu, while on patrol along Kamukunji Road in Nairobi, at about 11.30pm arrested four persons, three men and a woman who ‘could not give a proper account of themselves.’ She patrolled with them in the patrol van until 21^st February 2017 at 6 am. She surrendered them to his base at Diaspora police station where they were placed in custody on suspicion that they were in the country illegally.

h)       NAMES OF ACCUSED PERSONS IN CUSTODY:

1.       Madam Abi Harrison

2.       Trump Gitau,

3.       Mr. Mwanasiasa Duni,

4.       Alexis Shuks

i)        ACTION TAKEN:                                                       Arrest

j)        ANY PREVIOUS REPORT:                                        Mr. Mr Leo Wambua Ms Winnie Ms Mumo

k)       INVESTIGATION OFFICER:                                       CORPORAL KEVIN KUMITE

l)        PERSON PASSING:                                                  CHIEF INSPECTOR

m)     ARRESTING OFFICER:                                             CHIEF INSPECTOR MIRIAM KIPKEU

Signature

b)            Sub-file ‘B’: Sketch Plan and Documentary Exhibits: In the process of investigations exhibits are collected or produced. The documentary exhibits are official and personal documents and include expert evidence. The documents vary from case to case. For e.g., in road traffic cases, sketch plans, road views, and (notice of intended prosecution) nips are recovered. In murder, robbery or burglary cases, the documents recovered include photographs of the crime scene, recovered stolen items, weapons or dead victims.

          

c)             Sub-file ‘C’: Experts Reports: In the course of investigations a number of tests and examinations are done. The investigation officer will fill the Exhibit Memo Form and take the exhibit in question for examination. The Exhibit Memo Form and the Expert’s Report are filed in sub-file ‘C.’ Expert’s Reports include: Doctor’s Report, Postmortem Report, Ballistic Report, Document Examiner, Government Analyst Report and Explosive Expert’s Reports. Each report is accompanied by the Expert’s Statement.

d)            Sub-file ‘D’: Statements of Prosecution Witnesses: The investigation officer will interrogate all persons with information about the crime being investigated. The proposed witnesses will record statements at the Police Station which are then filed in Sub-file ‘D.’ Moreover, the witness’ statement on identification of a suspect will also be in Sub-file ‘D.’ Further, the ID Parade Officer will also record an ID Parade statement and attach it in this Sub-file.

D-03

IDENTIFICATION PARADE REPORT

Chief Inspector Chelogoi Ken, Diaspora police station,

P.O. Box 456, Rongai. 21^st February 2017

IDENTIFICATION PARADE REPORT

This refers to the identification parade carried out on the 21^st February 2017at the Diaspora Police station yard. Mr. Leo Musumba Wambua identified the woman with a heavy Jamaican accent and he could identify her voice when he asked members of the parade to say the words ‘wewe bring your mobile phone’

and she also appeared to walk with a limp on her left side. This was after he asked all the persons in the parade to walk a few meters during the parade so that he could clearly identify the person who was limping during the robbery incident.

One of the male assailant was identified by Ms. Winnie Mumo as having an occasional stammer with a heavy Nigerian accent. She could identify his voice when he asked members of the parade to say the words ‘wewe madam bring that handbag’ he was also positively identified as having a pot belly, bald headed, with drooping ears. She stated that one of the suspects was a stammerer and hence it took him a while before uttering a word.

The third person was also positively identified by name as he is well known to both complainants as one Mr. Mwanasiasa Duni, a class representative at the Kenya School of Law, Class J.

The fourth assailant identified to the duo as having been male slender, tall and having had the habit of sticking out his tongue whenever he would say something.

I confirm that this is my report. Signed ...............................

INSPECTOR Chief Inspector Chelogoi Ken

 

 

e)            Sub-file ‘E’: Charge and Cautionary Statements of Accused Persons and Statement Under Inquiry: Any statement made while the Investigation Officer interrogates the suspect will be kept in this Sub-file. Note: Section 99 of the Criminal Law (Amendment) Act, 2003 repealed Section 25 of the Evidence Act, Cap 80 and inserted Section 25A. Thus, any confession or admission of fact by an accused person cannot be proved unless made in Court before a Judge or Magistrate, or before a Police Officer (other than the investigating officer), being an officer not below the rank of Inspector of Police, and a third party of the person’s choice.

f)              Sub-file ‘F’: Investigation Diary: The Investigation Officer will interview witnesses and suspects. He will visit the crime scene, hospitals, mortuary, offices, prisons, Courts and residences. The times, dates and places should be clearly indicated and recorded. The events must be accurate as they occurred and will be in this sub-file

g)            Sub-file ‘G’: Copy of Charge Sheet and Related Documents: Upon completion of investigations, the Investigation Officer will prepare the charges in a charge-sheet and file them in this sub-file. During the trial, the charge-sheet may be amended or substituted and such copies will be kept in the Sub-file. Section 214 CrPC allows the prosecution to amend or substitute the charge-sheet anytime before the close of the prosecution case.

h)            Sub-file ‘H’: Accused’s Previous Records, List of Exhibits and List of Witnesses: This file will contain the accused’s fingerprint form, accused’s previous record, prisoner’s list of personal effects i.e., documents, watch, wallet, shoes and money, inventory of items recovered from accused or his home or place of arrest that relate to the case or are deemed to be stolen items and list of witnesses to testify.

i)               Sub-file ‘I’: Covering Report: This report is by the Officer-in-Charge of Investigations giving the chronology of events and conduct of investigations culminating to the decision to charge the suspect and

arraign him in Court. The officer in giving the findings will cross reference with relevant witness statement and exhibit.

j)               Sub-file ‘J’: Minute Sheet: The sub-file contains correspondences between police personnel with regard to the case.

3.                   ADVOCATE’S FILE:

The following are the contents of an advocate’s files:

a)       Instruction note: It contains a note of the exact action required of the advocate, advocate’s name, name and address of the person giving instructions and retainer.

b)       Client attendance form: This form indicates name of client, date of attendance, length of time spent in attending to the client/representative and purpose(s) of attendance.

c)       Court attendance form: It contains date of attendance, length of attendance, file reference, name of client, case number and parties, name of advocate in attendance, counterpart in attendance, name of judicial officer, purpose of the Court attendance, instructions for the said attendance, what transpired in Court and further instructions as a consequence of the Court attendance.

d)       Charge sheet: After taking the plea (not guilty), the advocate will be given a copy of the charge-sheet.

e)       Bail/bond documents: If the offence is bailable, then the advocate’s file will have the necessary copies of documents necessary for the admittance of the client to bail. They are copies because the originals are deposited in the Court.

f)        Legal opinion/brief: It is also appropriate for the advocate to render a preliminary legal opinion to client on the strengths and weaknesses of the case. This may be important for out of Court settlement.

g)       Witness statements and documentary exhibits: On attending Court, after taking plea, the advocate would ordinarily apply to Court for copies of the statements and exhibits to be relied on during trial.

h)       Legal research: After the lawyer has gathered evidence, legal research is conducted and a list of cases to be relied on during the trial is placed in the file.

i)        Case concept/battle plan: The advocates file will contain notes on the fact/case analysis of the evidence gathered and the legal principles that apply. The outcome will be the strategy which will be the case concept/battle plan for the trial process.

j)        Defence case: Copies of reports i.e., post mortem report, ballistic report, finger print, expert report, handwriting expert and all other expert reports are filed in the defence case file.

k)       Defence witness statements: Defence files must have defence witness statements, lists of defence witnesses and exhibits and a list of authorities that the advocate intends to rely on while submitting.

4.                   COURT FILE:

·       The physical file contains the following: On top of the file are the Court of arms, Court name/place, Case number/year, Name(s) of suspect(s) and Name of the case/ charge(s).

·       Inside the file on first page: The Court Clerk indicates the date, Names and rank of judicial officer to conduct trial, Names and rank of prosecutor and Names of Court Clerk. When the Court proceedings start, the judicial officer will record the following: Names of counsel/advocate(s) and Names of interpreter (if present).

·       Plea taking proceedings: The charge(s) are read from the charge-sheet to the suspect in a language s/he understands. The reply of the suspect is recorded as clearly and directly as possible.

·       The advocates address: The suspect(s) have an opportunity to make applications to the Court or the advocate if represented.

·       The prosecutor’s address: The prosecutor will reply to the applications made by the suspect or advocate and the same will be recorded in the court file.

·       Courts orders: The applications made by the suspect or advocate and reply by prosecutor are recorded and the Court makes and records orders on bond/bail, mentions and hearing dates and allocation of Courts for the hearing of the case.

·       Preliminary applications: and proceedings made after plea-taking and before the hearing of the case are recorded in the Court file.

·       Proceedings of all parties: On the hearing date, the Court will record the proceedings of all parties in the sequence they address the Court.

·       Hearing proceedings:

a)       Criminal proceedings commence when a suspect is arraigned in Court and takes plea. The plea-taking process is recorded.

b)       When the hearing starts, the proceedings are recorded of all that is said by each witness, cross- examination thereof and comments made during the proceedings.

c)       All pages of the proceedings are marked serially except the Court rulings and judgment that are marked separately.

d)       During trial, the exhibits are marked and produced but are kept separately from the Court file, the documentary exhibits are kept in the Registry, and the physical exhibits in the exhibits’ store.

·       Court documents: The following are court documents found in the in the Court file:

a)       Charge sheet                                                              e) Remand warrant

b)       Bail/bond documents                                                   f) Particulars of surety documents

c)       Release order of the suspect                                       g) Court exhibit list

d)       Court list of witnesses list                                            h) High court orders relating to the case

 

 

 

1.                   INTRODUCTION:

INSTITUTION OF PROCEEDINGS COMPLAINT AND CHARGE

·       Where an offence has been committed or is suspected to have been committed, it is important that investigations are carried out.¹ This ascertains the person who committed the offence and to find out the circumstances that led to the offence being committed.²

·       In the process, evidence is collected and the investigating officer is able to find out whether an offence was committed, who committed it, under what circumstances was the offence committed and whether the suspect should be charged or prosecuted.³

·       Proceedings may be instituted either by the making of a complaint or by the bringing before a Magistrate of a person who has been arrested without warrant.⁴

2.                   CONCEPT AND MEANING OF THE TERM ‘COMPLAINT’ AND ‘CHARGE’:

·       ‘Complaint’ is an allegation that some person known or unknown has committed or is guilty of an offence.⁵ A ‘complainant’ is any person who lodges a complaint within lawful authority such as a Police Officer, Chief of a location, and/or Magistrates.⁶

·       ‘Charge’ is a formal written accusation or complaint against a person (accused) for an offence known in law.⁷ A charge is drawn by a Magistrate, or Police Officer, or Director of Public Prosecutions and signed as required by law.⁸

·       A charge made in a superior Court is called “an information.”

·       Since criminal cases are usually for and on behalf of the Republic, the State is the party to institute the case through Prosecutors or State Counsels. Therefore the title of a criminal case must read as Republic v. Accused.

·       Purpose of a ‘charge’ (rule): The golden rule is that a charge-sheet should inform the accused person in clear and unmistakable terms of the allegations against him, in order for him to be able to prepare for defense. This rule is part of the wider requirement of affording an accused person a fair trial. In Republic v. Nashon Marenya,⁹ the Court emphasized on the need for the charge to be clear and unequivocal as a way of avoiding confusion as to what the accused is to answer to. This is mainly meant to avoid miscarriage of justice.

·       In Republic v. Tambukiza, a Ugandan Court held that a charge is the essence of the criminal procedure and where a Court fails to draw up and sign a formal charge, is a defect which renders a trial a nullity. In Martino Judagi and Another v. West Nile District Administration,¹⁰ it was held that failure to frame a charge in a Subordinate Court was a fundamental mistake and cannot be cured. Therefore, no case can proceed without a charge.

¹ Benjamin Odoki, A Guide to Criminal Procedure in Uganda (Uganda: Law Africa, 2011), p.25.

² Id., at 27.

³ Id., at 25.

⁴ S.89(1), the Criminal Procedure Code, Cap 75.

⁵ S.2, the Criminal Procedure Code, Cap 75.

⁶ S.89(2), the Criminal Procedure Code, Cap 75.

⁷ The offence must be provided for in law.

⁸ The terms charge and information are used interchangeably.

⁹ Criminal Appeal No. 786 of 1982 (unreported).

¹⁰ 1963 EA 406.

3.                   PROCEDURE ON COMPLAINT AND CHARGE:

a)       Proceedings may be instituted either by the making of a complaint or by the bringing before a Magistrate of a person who has been arrested without warrant.

b)       A person who believes from a reasonable and probable cause that an offence has been committed by another person may make a complaint thereof to a Magistrate having jurisdiction.

c)       A complaint may be made orally or in writing, but, if made orally, it must be reduced to writing by the Magistrate, and, in either case, signed by the complainant and the Magistrate.

d)       The Magistrate, upon receiving a complaint, or where an accused person who has been arrested without a warrant is brought before him, shall draw up or cause to be drawn up and shall sign 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.

e)       Where the Magistrate is of the opinion that a complaint or formal charge made or presented under this section does not disclose an offence, the Magistrate shall make an order refusing to admit the complaint or formal charge and shall record his reasons for the order.¹¹

f)        Where a complaint has been lodged in a Police Station, the complaint will be recorded in the Occurrence Book [hereinafter referred to as OB] as the Inspector General may direct. The complainant is then given an OB Number and investigations begin.

g)       Issue of summons or warrant:

i.         Upon receiving a complaint and having signed the charge in accordance with Section 89, the Magistrate may 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, provided that a warrant cannot be issued in the first instance unless the complaint has been made upon oath either by the complainant or by a witness or witnesses.

ii.       The validity of proceedings taken in pursuance of a complaint or charge cannot be affected either by a defect in the complaint or charge or by the fact that a summons or warrant was issued without a complaint or charge.

iii.     A summons or warrant may be issued on a Sunday.¹²

4.                   OCCURRENCE BOOK:

·       The Officer in Charge of the Station (OCS) maintains an OB, recording such complaints as the Inspector General may direct. The Occurrence Book is designed for all Police Stations for police use and is usually divided into 7 columns.

·       OB is opened at midnight daily, where the first report of the day is recorded and it indicates: OB OPENED.

·       When closing the OB, entries are made in such a way that 3^rd parties may not interfere with the entries; this is because whatever is entered into the OB is the responsibility of the Officer on duty who has signed it. From OB Number 1, when the OB is opened, entries are entered numerically and consecutively as they are reported until one minute to midnight that is 11.59p.m. When the last entry is made in the OB and it normally indicates the - Weather Report.

¹¹ S.89, the Criminal Procedure Code, Cap 75.

¹² S.90, the Criminal Procedure Code, Cap 75.

·       The different columns in the OB include:

a)       1^st column: Number of the entries. Every complaint brought to the police station is supposed to be entered in the OB in a chronological order.

b)       2^nd column: Reference. This will only be indicated if there are other subsequent scenarios of similar nature as those earlier reported within that particular or even on different days where the matters are related.

c)       3^rd column: Hour and Minute. This is the exact time when the complaint was lodged in 24 hour clock system.

d)       4^th column: Case File Number. This will be given after investigations have been undertaken.

e)       5^th column: Nature of Occurrence. This is a summarised description of what the complaint is about. Besides, the complainant’s name, phone number and residence is recorded in this column, so that in case of any progress or happenings or inquiries about anything in relation to his complaint, s/he may be contacted and informed of the same.

f)        6^th column: Remarks. This is filled by the OCS to give administrative direction as to what is to be done.

g)       7^th column: Signature of the officer making the entry: This is indicates the person who made the entry.

·       Once a person makes a complaint, they are given an OB Number which is useful for quoting the specific OB entry from which one wishes to get an extract. The OB Number is always recorded in the charge sheet.

·       The OCS will at the end of each day peruse the OB to make his remarks, as to whether any of the complaints made should be investigated. He will then assign any of the sergeant officers in his station to conduct investigations on the matter. The Investigating Officer will then visit the scene of crime or the alleged offence as indicated in the OB as reported, to gather evidence, collect exhibits. He may also arrest the suspects and if there are any witnesses to the crime at the time of the search, they can record their witness statements. All this, he will have to record in the OB when he returns to the station - the person arrested and the exhibits found. The suspects will then be booked. The records will then be forwarded to the Criminal Investigation Department.

5.                   ILLUSTRATION:

The entry made before the raid at home of Pasta Mkombozi, of the complaint lodged in the Police Station, that Pastor Mkombozi was keeping a cache of weapons which was used to commit robberies in the County of Kwingi. The report was made by various residents of Kwingi. File the necessary entries.

REPORT BEFORE RAID:

Date: 29/05/2017

 

No.	Reference, If Any	Hour/Minute	Case File No.	Nature of Occurrence	Remarks	Signature
1	-	00.00	OB Opened	Noted
2	-	00.30	-	Judy attacked and robbed by a known suspect who kept a cache        of                 weapons                 along	Paula Akunda to conduct                          the investigation

				County of Kwingi
3	-	04.00	-	Kibet Kirui attacked by known suspects of the Wavutaji Sect along County of Kwingi	Naomi Wanja to investigate
4	-	23.50	-	Mutanu Mwema robbed and attacked by a leader of Wavutaji Sect along County of Kwingi	Paula Akunda to conduct                   the investigation
5	-	23.59	-	Light showers, cloudy day	Noted

 

REPORT AFTER RAID:

The entry after the raid at Pasta’s house would indicate the number of entry, followed by reference indicated in OB before raid because they are related. It will then indicate those arrested, identifying them by name, nature of crime and time of arrest. In this case, Pasta Mkombozi, Mfuataji Wima, Kimduni Nancie, Kwetu Queen, Mrembo Mweusi and four others that were listed under the title “Alshabiri looking for local networks to partner with” were arrested.

Date: 30/05/2017

 

No.	Reference, If Any	Hour/Minute	Case File No.	Nature of Occurrence	Remarks	Signature
1	-	00.00	OB Opened	Noted
2	OB               No. 2/3/4                  of 2015	02.00	No.10 of 2015	Pastor Mkombozi arrested for possession of AK47 rifle Kalanshnikov, nylon bag with seeds and leaves suspected to be cannabis sativa.	-
3	OB No. 3 of 2015	02.05	No.11 of 2015	Mfuataji Wima arrested for being a suspected member of Wavutaji Sect.	-
4	OB No. 3 of 2015	02.10	No.12 of 2015	Kimduni Nancie arrested for being a suspected member of Wavutaji Sect	-
5	OB No. 3 of 2015	02.20	No.13 of 2015	Kwetu Queen arrested for being a suspected member of Wavutaji Sect	-
6	OB No. 3 of 2015	02.25	No.14 of 2015	Mrembo Mweusi   arrested for being a suspected member of Wavutaji Sect	-

THE KENYA POLICE CHARGE SHEET

Police Case No. CR. 50/2/2015 Date to Court. ………

Court File No. ………

O.B. No.                       614/2015                                    Date: 18/03/2015

 

Names		Surname/ Father’s Name		Identity No.	Sex	Nationality	Age	Address
Pastor		Mkombozi		28740383	M	Kenyan	Adult	Kwingi County.
Mfuataji		Wima		38740942	M	Kenyan	Adult	Kwingi County
CHARGE Count 1		POSSESSION OF SPECIFIED FIREARM WITHOUT A LICENCE, PERMIT OR OTHER LAWFUL JUSTIFICATION CONTRARY TO SECTION 89 OF THE PENAL CODE, CAP 63 AS READ WITH SECTION 4A OF THE FIREARMS ACT, CAP 114
Particulars	of	PASTOR MKOMBOZI AND MFUATAJI WIMA13
the Offence		On 3rd March 2015 at 1am at Kangatala Estate, Gitgal area within Kwingi County, they were
		found in possession of a firearm without a licence, permit or other lawful justification.
		(FOR OTHER COUNTS, SEE ATTACHED SHEET)
If                Accused		Date	of	Without/With a	Date                 App.	Bond or   Bail	Is           Application		for
Arrested		Arrest		Warrant	To Court	Amount	Summons to Issue
Yes		11/03/2015		Without	N/A	In custody	N/A
Remanded Adjourned	or	Remanded
Complainant and Address		Republic of Kenya
Witness		1.        Mr. Sheria Kari 2.        Mr. Kuyi Kazi
Sentence Court and Date		CHIEF MAGISTRATE’S COURT, NAIROBI ………. If Fine Paid………

 

……………………………………………………………………. For Officer in Charge of Kwingi Police Station

 

 

 

 

¹³ In Particulars, every Count Must answer Who, When, Where and How Questions.

ATTACHMENT

 

CHARGE Count 2	POSSESSION OF NARCOTIC DRUGS CONTRARY TO SECTION 3(1) AS READ WITH SECTION 3(2) OF THE NARCOTIC AND PSYCHOTROPIC SUBSTANCES (CONTROL) ACT, 1994
Particulars                           of the Offence	PASTOR MKOMBOZI AND MFUATAJI WIMA On 3rd March 2015 at 1am at Kangatala Estate, Gitgal area within Kwingi County, they were found in possession of dry leaves and seeds of cannabis sativa
CHARGE Count 3	ENCOURAGEMENT AND RECRUITMENT OF PEOPLE TO BECOME MEMBERS OF AN ORGANIZED CRIMINAL GROUP CONTRARY TO SECTION 3(b) AND 4 OF THE PREVENTION OF ORGANIZED CRIMES ACT, CAP 59
Particulars                           of the Offence	PASTOR MKOMBOZI AND MFUATAJI WIMA On 3rd March 2015 at 1am at Kangatala Estate, Gitgal area within Kwingi County, they were found in possession of leaflets for the recruitment of members to the terrorist group Alshabiri

 

6.                   FRAMING OF CHARGES (RULES – SECTION 137 CrPC) (PROCEDURE):

·       The basic principle of law governing the framing of charges: is that no person can be charged of a criminal offence unless the offence is defined/known in law and the penalty thereof prescribed in a written law¹⁴ and this has its foundation in the Constitution.¹⁵ Article 49 of the Constitution of Kenya, 2010, provides that an arrested person at first Court appearance, should be charged or informed of the reason for the continuing detention. If this is not undertaken, the arrested person should be released. The charging process happens as a basic requirement of fair trial as laid out in Article 50(2)(b).

·       Commencement: It contains the following:

a)       Police Case No.: as found in the Occurrence Book.

b)       Date to Court: It indicates the day the accused person is presented before the Court. Thus, it helps an advocate to determine whether an accused was presented to Court on time.

c)       The OB No. and Serial No. of the particular case: are indicated to help the defense counsel to do some preliminary investigation on the client’s case.

d)       Court File No.: A number used to retrieve files when there is cause list

e)       Nationality

f)        Apparent Age: Initials are used i.e., ‘A’ – Adult, ‘M’ – Minor.

g)       First Name, Surname, and Address of the accused person(s): Address is important because, there can be instances where the accused is a foreign national.

·       Contents of a charge sheet: Section 134 of the Criminal Procedure Code, Cap 75 provides that every charge or information shall be sufficient if it contains, a statement of the specific offence(s) with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged. Consequently, a charge sheet must contain the following:

¹⁴ See, Republic v. Stephen Chege, Criminal Application 785 of 1982.

¹⁵ Art.50, the Constitution of Kenya, 2010.

a)       Statement of the offence: It must describe, in brief, (in ordinary language and without using technical terms)¹⁶ the offence charged together with the law creating that offence.¹⁷ In cases where the offence is defined in one Section and the penalty prescribed in another, it is imperative that the two Sections be quoted in the charge. Thus, the correct procedure is to specify the Section that prescribes the punishment and not the one that defines the offence.¹⁸ In Republic v. Oremo,¹⁹ a conviction was quashed where the accused was charged with a non-existent offence.

Moreover, the Court must ensure that the accused fully understands the charge being read to him especially offences of serious nature. As a measure to aid or increase clarity and banish confusion, the Court in Republic v. Mwangi and another²⁰ held 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 knows precisely what he is to defend himself against.”

ILLUSTRATION: On 19/05/2016, Mr. Gitau Kimani visited Kenya School of Law, Gate ‘C’ Bar at around 3.00pm. He stayed in the Bar for two hours. At about 5.30pm, he was joined by his close friend Winnie. Thirty minutes later, they were joined by their classmate Kip Edwins. After a short while, an argument ensured prompting Gitau to pick a bottle full of bear from the counter which he smashed against the wall. In the ensuing confusion, Kip ran out of the Bar with a create of bear, the property of Kenya School of Law valued at Ksh.3000. Prepare relevant statement of the offence.

ANSWER:

Gitau: Malicious injuries to property contrary to Section 339 of the Penal Code, Cap 63 and Offensive conduct conducive to breaches of the peace contrary to Section 94(1) of the Penal Code, Cap 63.

Kip: Stealing contrary to Section 268(1)(2)(a)(d) read with Section 275 of the Penal Code, Cap 63.

b)       Particulars of the offence: The particulars required are such as will provide reasonable information as to the nature of the offence charged. These also should also be in ordinary language. Technical terms should be avoided.²¹ This includes where, how, what and when the offence is alleged to have been committed, the subject matter of the charge and the identity of the accused and the complainant.²² Thus, the essential ingredients of the alleged offence i.e., date, place, time and circumstances in which it was committed must be stated.

In Republic v. Yozefu & Anor.,²³ the allegation that the pieces of skin came from an animal killed in contravention of the Act was an essential ingredient and its omission makes the charge defective.”

In Republic v. Wilson,²⁴ 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 date on which death occurred.

In the case of Republic v. Loibori,²⁵ 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

¹⁶ This is meant to enable the accused understand the charges leveled against hi/her.

¹⁷ S.137, the Criminal Procedure Code, Cap 75. It is not necessarily stating all the essential elements of the offence.

¹⁸ Douglas B., Criminal Procedure in Uganda Kenya 37, (Law in Africa, 1964). See, Cosma v. Republic, (1955) 22 EACA 450.

¹⁹ (1990) KLR 290.

²⁰ (1988) KLR 803.

²¹ S.137(a)(iii), the Criminal Procedure Code, Cap 75.

²² S.137, the Criminal Procedure Code, Cap 75.

²³ (1969) E.A 236.

²⁴ (1955) 22 E.A.C.A. 372.

²⁵ (1949)16 E.A.C.A. 86.

may be a vast territorial area can hardly be said to indicate to an accused, with reasonable clearness, the place at which it is alleged he committed the offence.

ILLUSTRATION: See above question

ANSWER:

Gitau:²⁶ On 19/05/2016, Mr. Gitau Kimani visited Kenya School of Law, Gate ‘C’ Bar at around 3.00pm and maliciously caused injuries to the property of the School by breaking bottle of bear. He also did create disturbance in a manner likely to cause breach of peace.

Kips: On 19/05/2016, Mr. Kip Edwins visited Kenya School of Law, Gate ‘C’ Bar at around 3.00pm and ran out of the Bar with a create of bear, the property of Kenya School of Law valued at Ksh.3000.

·       Consecutive numbering of counts: Where a charge or information contains more than one count, the counts shall be numbered consecutively.²⁷

A charge sheet should have a maximum of 12 counts as was held in Republic v. Ochieng²⁸ where the Judge reiterated the point. Here, the accused person was charged with 44 counts of motley offences. On appeal, the Court held that it was undesirable to charge the accused with so many offences on the same charge sheet as it may occasion prejudice and embarrassment.

·       Forms: The framing of charges should be in accordance with the forms in the ‘Second Schedule to the CrPC’ 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.²⁹ The use of the forms is expressed in obligatory terms and any variation from the wording of the forms may be, in certain circumstances, fatal.³⁰ Thus, for instance, the names of all accused persons should be given in full and not merely as, for e.g., “X and 6 Others.” This was the holding in Republic v. Yonasani Egalo and Others.³¹

·       Provisions as to statutory offences: Where an enactment constituting an offence states the offence to be the doing of, or the omission to do any one of any different acts in the alternative, it may be stated in the alternative in the count charging the offence.

·       Description of property: The description of property in a charge or information shall be in ordinary language, and shall indicate with reasonable clearness the property referred to, and, if the property is so described, it shall not be necessary (except when required for the purpose of describing an offence depending on any special ownership of property or special value of property) to name the person to whom the property belongs or the value of the property.

a)       Description of property where it is vested in more than one person: and the owners of the property are referred to in a charge or information, it shall be sufficient to describe the property as owned by one of those persons by name with the others, and, if the persons owning the property are a body of persons with a collective name, such as a joint stock company or “Inhabitants”, “Trustees”, “Commissioners” or “Club” or other similar name, it shall be sufficient to use the collective name without naming any individual.

²⁶ In Particulars, every Count Must answer Who, When, Where and How Questions.

²⁷ S.135(2), the Criminal Procedure Code, Cap 75.

²⁸ High Court Criminal Application No.10 of 1985.

²⁹ S.137(a)(iv), the Criminal Procedure Code, Cap 75. The forms sets out the manner in which various offences should be charged. ³⁰ Cognate offence is when the details of the offences committed are so intertwined and not clear where the transition commences. ³¹ 9 EACA 65.

b)       Description of property belonging to or provided for the use of a public establishment, service or Department: may be described as the property of the Government, the Nairobi Area or a region as the case may be.

c)       Coins, bank notes and currency notes: may be described as money; and an allegation as to money.

·       Description of persons: The description or designation in a charge or information of an accused person shall be reasonably sufficient to identify him, without necessarily stating his correct name, or abode, style, degree or occupation; and if, owing to the name of the person not being known, it is impracticable to give such a description or designation, the person may be described as “a person unknown.”

·       Description of documents: Where it is necessary to refer to a document or instrument in a charge or information, it shall be sufficient to describe it by any name or designation by which it is usually known without setting a copy thereof, i.e., if it is a cheque you don’t need to attach a photocopy.

General rule as to description: It shall be sufficient to describe a place, time, thing, matter, act or omission to which it is necessary to refer in a charge or information in ordinary language so as to indicate with reasonable clearness the place, time, thing, matter, act or omission referred to.

·       Statement of intent: It shall not be necessary to state an intent to defraud, deceive or injure a particular person, where the enactment creating the offence does not make an intent to defraud, deceive or injure a particular person an essential ingredient of the offence.

·       Mode of charging previous convictions: Where a previous conviction of an offence is charged in a charge or information, it shall be charged at the end of the charge or information by means of a statement that the accused person has been previously convicted of that offence at a certain time and place without stating the particulars of the offence.

·       Use of figures and abbreviations: They may be used for expressing anything which is commonly expressed thereby.

·       Gross sum may be specified in certain cases of stealing: When a person is charged with an offence under Sections 280 to 283 of the Penal Code, Cap. 63, it shall be sufficient to specify the:

a)         gross amount of property in respect of which the offence is alleged to have been committed, and

b)       dates between which the offence is alleged to have been committed without specifying particular times or exact dates.

·       Charge with the highest charge: Where facts are not clear i.e., on sexual assault, it is better to charge with the highest charge which would be ‘rape.’ Where an accused is charged with highest offence (i.e., rape) and evidence is adduced which indicates that a lesser offence was committed, the Court can reduce the charge to the lesser offence (i.e., indecent assault) but it cannot enhance a charge.

7.                   DUPLICITY OF CHARGES:

·       Meaning: Black’s law dictionary defines ‘duplicity’ as charging of the same offence in more than one count of an indictment, or the pleading of two or more distinct grounds of complaint or defence for the same issue.

·       It is a legal requirement that a charge should not suffer from duplicity because: 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 an accused the exact charges to face. As a result, one may not be able to prepare a proper defence. This may be prejudicial and may amount to failure of justice.

·       Test to determine duplicity: in Republic v. Laban Koti,³² the Court held that in deciding whether there is duplicity in a charge, the test is whether:

a)       a failure of justice has occurred, or

b)       the accused has been prejudiced.

·       Where a Statute creates offences in the alternative, duplicity should be avoided: For instance, Section 86 of the Traffic Act, Cap 403 provides for offences created in the alternative i.e., the following are the alternatives for ‘causing death by driving a motor vehicle’ under the Act:

a)       Driving recklessly;                                                                        d) Driving at high speed

b)       Driving in a manner dangerous to the public

c)       Leaving the motor vehicle on the road in a manner dangerous to the public.

As such a person cannot be charged of two or more of the above but, only one of the alternative. Accordingly, a count charging an accused of causing death by ‘driving the motor vehicle recklessly’ and at ‘high speed’ is duplex. The charges should be expressed in the alternative.

·       Arson and attempted murder: In Republic v. Mwamdalafu,³³ the appellant was charged with the alternative counts of the offence of arson and attempted murder. The ‘particulars of the offence’ read that the appellant was charged with one count of murder and another count of arson for attempting to cause the death of A and his wife by setting on fire two houses one A’s and the other B’s which stood 100 yards apart. Evidence produced showed that the appellant had attempted murder on two occasions. First, he burnt A’s house and when A took refuge in B’s house, he burnt B’s house as well. The question was whether there was duplicity? The Court found duplicity because:

a)       in arson, there were two offences arising from two acts of arson;

b)       in attempted murder, there ought to have been two charges of attempted murder;

c)       the attempted murder counts should have been framed in the alternative;

d)       there ought to be four counts and not two but the second attempted murder count should have been in the alternative.

·       Shop breaking, theft and handling stolen property: In Republic v. Saina,³⁴ the appellant was charged on a single count with the offence of shop breaking, theft and handling stolen property. He was convicted, but on appeal, the High Court found the charge suffered duplicity. It was found that one count charged 3 separate offences i.e., Shop breaking contrary to Section 306(a) of the Penal Code, Cap 63 and handling stolen goods contrary to Section 322 of the Code. It was forth held that each offence should have been set out in a different count. The charge of handling stolen property could have been an alternative count.

·       Possession of obscene materials: In Republic v. Bhatt,³⁵ the appellant was charged with being in possession of obscene materials contrary to Section 181(a) of the Penal Code, Cap 63. It was alleged that the appellant for the purpose of, or by way of trade for the purpose of distribution, or public exhibition had in his

³² (1962) E.A. 439.

³³ (1966) EA 459.

³⁴ (1974) EA 83.

³⁵ (1960).

possession 37 photographs of an obscene nature which could tend to corrupt the morals of any person. Section 181 of CrPC talks of alternative purposes. On appeal, it was held that the particular motive why the appellant had the photos should have been averred to the purposes. It was wrong for the charge to refer to several purposes. Thus, the averment of several purposes made the charge suffer duplicity as each of the several particulars set out in the charge constituted a separate offence. Charging the accused in such manner prejudices his defense.

·       Attempting to influence witnesses: In Republic v. Koti,³⁶ the appellant was charged and convicted of wrongfully attempting to interfere with or influence witnesses in a judicial proceeding either before or after they had given evidence contrary to Section 212 (1) of the Penal Code, Cap 63. On appeal, the charge was held to be duplex i.e., it charged two offences; interfering with the witnesses before and after. The charge should have stated if it was either before or after to attract two counts.

·       Exceptions to the general rule of duplicity: Duplicity may be allowed in certain circumstances. In other words, there are exceptions to the general rule that a count should not charge an accused with more than one offence. These are:

a)       Where the form of preferring a charge is allowed by a Statute: The Second Schedule of the CrPC authorizes charging of two offences in one count in respect of the offence created under:

i.         Section 330 of the Penal Code i.e., ‘false accounting’;

ii.       Sections 304 and 379 i.e., Burglary and stealing. Form 9 in the Second Schedule is used.

In Republic v. Pope,³⁷ the accused was charged with fraudulent and false accounting contrary to Section 330(a) of the Penal Code. In the particulars, it was alleged that he falsified or was privy to the falsifying of a document. He was convicted. On appeal, he argued that the charge suffered duplicity because it charged two offences in one count. The Court of Appeal held that the charge was not duplex for it only charged one offence which was in the form authorized by the Second Schedule to the CrPC.

b)       Where the separate offences are charged conjunctively using the word “and” as opposed to “or” if the matter relates to one act. In Republic v. Gichinga, the particulars stated that the appellant drove in a reckless manner and at a speed dangerous to the public contrary to Section 86 of the Traffic Act, Cap

403. The Act employs “or” rather than “and.” The Magistrate had acquitted the accused because of duplicity as it alleged commission of two offences. On revision by the High Court, it was held that the charge was not duplex and it had been expressed conjunctively as it referred to one incident or act i.e., appellant’s manner of driving at the relevant time. If it had been expressed using the disjunctive “or” i.e., driving in a reckless manner ‘or’ at a high speed, it would have been duplex.

·       Effects of duplicity: The law is not clear on duplicity of charges. There are two opposing views:

a)      
Duplicity is an incurable defect which can be cured by amending the charge hence if found to be duplex, the accused should be discharged. This was seen in Republic v. Cherere Gukuli³⁸ and followed in Republic v. Saina.³⁹ In Republic v. Kasyoka,⁴⁰ the charge sheet read that the appellant had dishonestly “received or retained” a cheque knowing or having reason to believe it to have been stolen.

³⁶ (1962) EA 439.

³⁷ (1960) EA 132.

³⁸ (1955) 22 EACA 478.

³⁹ (1974) EA 83.

⁴⁰ (2003) KLR 406.

The appellant had been convicted of, among other offences, handling stolen property contrary to Section 322(2) of the Penal Code, Cap 63. The State argued that, the fact that a charge was defective was not necessarily fatal to a conviction or charge, the real test being whether the accused was able to understand the charge. The Court held that the appellant was convicted on a duplex charge and no one can state, for sure, which of the two offences was committed.

b)       The true test should be whether injustice or prejudice has been occasioned on the accused by the duplicity so that where the accused suffers no prejudice; conviction of duplicity should stand. This school relies on Section 382 of CrPC which provides for finding of a sentence or order issued by a Court should not be reversed or altered on appeal or revision on account of error, omission, or irregularity in the charge unless the error, omission, or irregularity has occasioned a failure of justice. This was followed in Republic v. Kababi,⁴¹ where the appellant was charged in a single count with causing death of three persons by dangerous driving. He was convicted. He appealed alleging that the decision of the trial Court was based on a barred charge. It was held that failure to charge or to file three separate counts did not occasion injustice though there was duplicity. The conviction was upheld. Similarly, in Republic v. Mwangi,⁴² the appellant had been found in possession of a firearm stolen thirteen months earlier when he was in prison. He had been convicted on a single charge of being in possession of the revolver and the ammunition without a firearms certificate and of receiving the revolver knowing it to have been stolen. The appellate Court found the charge to be duplex but it had not occasioned injustice.

8.                   CAPITAL CHARGES:

·       Meaning: A capital charge is a formal written accusation of an offence drawn by a Magistrate, or by a Police Officer and signed as required by law for the purpose of use in a preliminary proceeding, or in a trial.

·       It lies against all persons who actually commit, procure, or assist in the commission of any crime, or who knowingly harbor a felon.⁴³

·       Framing of capital charges: Section 135 of the CrPC makes provision for the joinder of counts. It states that “offences whether felonies or misdemeanors, may be charged together in the same charge or information if the offences charged are founded on the same facts, or form, or are part of a series of offences of the same or similar character.” However, in framing capital charges, the general rule of practice is that, no other count can be joined to a count which carries a death penalty in the event, it leads to a conviction except where the additional count is based on precisely the same facts as the more serious charge.⁴⁴ In Republic v. Valezi Kashiza,⁴⁵ the Court of Appeal held that a charge of murder ought not be laid with a count of another offence.

 

 

 

 

 

⁴¹ (1980) KLR 95. See also, Republic v. Koti, (1962) EA 439; Republic v. Mwamdalafu, (1966) EA 459.

⁴² (1974) EA 83.

⁴³ Lumumba P. L. O., A Handbook on Criminal Procedure in Kenya 48, (Nairobi: LawAfrica Publishing (K) Ltd., 2005).

⁴⁴ See, Republic v. Yowana Sebuzikira, [1965] EA 685.

The reason for the requirement that no other count should be joined to a capital count is that such a charge is so serious and complicated that the defence ought not to be embarrassed by the necessity of dealing at the same time with other matters, whether of equal or of minor gravity.⁴⁶

With regard to ‘robbery with violence,’ the case of Republic v. Wanjala & Another applies. In that case, the appellants were charged with two charges of capital robbery which was a departure from the general rule but the Court of Appeal was of the view that no prejudice could have been caused to the appellants as the robberies formed part of the same transaction and the evidence in support of one charge was relevant to the other.

With regard to ‘treason,’ whether the same rule applies is a matter of conjecture. In practice, however, treason charges brought before the Courts in Kenya have not contravened the rule. It is noteworthy however that, in a treason charge, apart from alleging the particulars of the offence, the prosecution must also state the overt acts in the information. For instance, in the case of Republic v. Raila Amolo Odinga & 2 Others, the treason charge was drafted as follows:

THE KENYA POLICE CHARGE SHEET

 

 

 

 

O.B. No.                       ………

Police Case No. ………

Date to Court.              ………

Court File No.              ………

Names	Surname/ Father’s Name	Identity	Sex	Nationality	Age	Address
Mr. Raila	Odinga		M	Kenyan	Adult	P.O.               Box 237-00100, Nairobi.
Statement                       of the offence Count 1	TREASON CONTRARY TO SECTION 40(1)(a)(iii) AND (b) OF THE PENAL CODE, CAP 63
Particulars                       of the Offence	MR. RAILA AMOLO ODINGA AND OTIENO MAK-ONYANGO 47 On diverse days between the 15th day of July 1982 and 1st day of August 1982 in Kenya, being persons owing allegiance to the Republic of Kenya, jointly compassed, imagined, invented, devised or intended to overthrow by unlawful means, the Government and expressed, uttered or declared such compassings, imaginations, devices or intentions by the following overt acts or deeds: Overt acts: Raila Amolo Odinga and Otieno Mak-Onyango 1.   Raila Amolo Odinga: In mid July 1982 at Nairobi, loaned Senior Private Hezekiah Ochuka his Peugeot 504 Registration Number KVZ 642 to assist him in making preparation to

⁴⁶ Republic v. Alkaeli.

⁴⁷ In Particulars, every Count Must answer Who, When, Where and How Questions.

overthrow the Government. 2.         Raila Amolo Odinga: On or about 18th day of July 1982, visited the house of Senior Private Hezekiah Ochuka at Umoja Estate in Nairobi and discussed plans to overthrow the Government with Senior Private Hezekiah Ochuka and others. 3.         Otieno Mak-Onyango: On or about 20th day of July, 1982 inspected the house of Albert Vincent Otieno at Ngong Road in Nairobi with a view to obtain the use of the house as command headquarters for a group planning to overthrow the Government.

·       The requirement that overt acts be stated in the information is intended to avoid uncertainty in such a serious and sensitive charge so as to enable the accused to prepare his defence.

·       In cases where an offence is created by one Section of the law and the punishment is provided for in another Section, it is the practice in murder cases to specify in the count both the punishment and the Section creating the offence. In Republic v. Pitalis Oval Mambia,⁴⁸ the appellant was charged with murder which was expressed in the following terms:

Statement of offence:

Murder contrary to Section 204 as read with 203 of the Penal Code, Cap 63.

Particulars of offence:

PITALIS OLAL MAMBIA: On the 19^th day of June 1984 at Wang’aya Sub-Location, South West Kano Location in Kisumu District of the Nyanza province, Kenya, murdered Morris Babu ...

9.                   ALTERNATIVE CHARGES:

·       Meaning: This is a charge preferred against an accused person instead of the former charge (offence). This is justified in circumstances where the factors relating to the offence in question are not clearly focused to the consequence making it difficult to identify the offence that was actually committed.

·       Duplicity rules: prohibits a situation whereby two substantive offences are charged under the same count and where one charge has several counts to it. The counts should be set out separately and numbered consecutively.⁴⁹ For instance, a person is thought to have stolen property contrary to Section 275 of the Penal Code, Cap 63 but the prosecution is not certain that the accused actually stole the property. In such a case, the alternative of handling suspected stolen property contrary to Section 322 of the Code may be preferred against the accused.

·       False pretenses: In Republic v. Bennault Oinamo, the appellant was charged with unlawfully obtaining credit by false pretences. On appeal, it was found that the offence which the accused was charged could not amount to a ‘false pretense’ but there was evidence that could have supported a charge of ‘obtaining credit by means of fraud.’ The High Court ruled that in such a circumstance, the prosecution should have laid two separate charges namely: ‘obtaining credit by false pretenses’ and by ‘obtaining credit by fraud other than by false pretenses.’

·       Incitement to violence: In Republic v. Wainana,⁵⁰ it was held that it is proper to charge in one count the offence of ‘incitement to violence’ with an alternative charge of ‘creating disturbance in a manner likely to

 

⁴⁸ Criminal Appeal No.206 of 1987, C.A., Kisumu.

⁴⁹ Lumumba P. L. O., A Handbook on Criminal Procedure in Kenya 62, (Nairobi: LawAfrica Publishing (K) Ltd., 2005).

⁵⁰ (1973) E.A 182 (ILCK).

cause a breach of peace.’ However, a Trial Court is not permitted to make a finding on the alternative charge when a finding has already been made in the main charge.

·       Completing doing an offence: In Republic v. Kigen Arap Chemoiwa,⁵¹ the Court held that if the prosecution is in doubt as to whether an accused has completed doing an offence, it is desirable to charge him with an attempt of the completed offence because it is always open for the Trial Court to convict on an attempt upon a charge of the completed offence. Alternative charges may be waived if the offence preferred arose from one transaction.

·       Creation by a Statute: In Republic v. Chow,⁵² an English Court held that where a Statute creates two rather than three offences (i.e., recklessly or dangerously driving), even if they are separate offences, prosecution cannot charge them conjunctively where the matter relates to one single incident.

·       Conclusion: In view of the above, it is clear that alternative charges are a means to the end of achieving justice, without the mischief of duplicity.

10.                JOINDER OF COUNTS IN A CHARGE/INFORMATION (S.135, CrPC):

·       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.

·       Same facts/character: Joinder is permissible if the offences charged are founded on the same facts, or form, or are part of a series of offences of the same or a similar character.⁵³

·       Both convenient and expedient: Joinder is advantageous:

a)       as it saves time and avoids a multiplicity of trials revolving around the same set of facts;

b)       to the accused as it not only saves him legal costs, but also affords him the opportunity of serving concurrent sentences in the event of conviction.

In Republic v Ngibuini,⁵⁴ the Court expressed the view that where there is a single complex of offences connected in kind and time, it is undesirable, although not unlawful, for the accused to be arraigned on separate trials. It is also undesirable to have separate trials as it denies the court the opportunity to look at the accused vis a vis the series of offences as a whole when sentencing.

Whether offences must be of same character? Despite the above provision, the Court in Ralph v. Dalip Singh⁵⁵ had the opportunity to determine the provision. In this case, the appellant had been charged jointly with another with the theft of property belonging to Kenya-Uganda Railway and convicted of conveying stolen property. In the second count, the appellant was charged alone and convicted of bribing a police officer in order to procure the release. It was adduced in evidence that the bribe had been given shortly after the arrest of the two men. On appeal, the appellant argued that there had been misjoinder of offences because theft and bribery were not offences of a similar character. The Court held that although the two offences were different in character, they were founded on the same facts as the evidence clearly demonstrated that the bribe was offered shortly after the appellants had been arrested. This thus

 

⁵¹ (1962) E.A 684 (SCK).

⁵² (1965) 1QB 598.

⁵³ S.135(1), the Criminal Procedure Code, Cap 75.

⁵⁴ (1987) KLR 517.

⁵⁵ 1943 1 EACA 121.

demonstrates that it is not necessary that offences must be of same character and nature as a condition precedent to their inclusion in one charge under different counts.

Similarly, in Republic v. Kamwana s/o Mutia,⁵⁶ the question that arose was whether the trial would be a nullity where there was a joinder of counts for dissimilar offences in one charge sheet. The appellant appealed against conviction and sentence on three counts i.e., “theft”, “breaking and entering premises,” and “possession of bhang.” The third charge was not treated as an issue at the trial but when the appellant had been convicted, he requested the Court that the offence be taken into consideration whereupon the Magistrate purported to convict him of the offence and composed for it a separate sentence. On appeal, the Court held that the count charging the appellant with possession of bhang shouldn’t have been included in the same charge-sheet with the other two dissimilar counts but, since no injustice resulted from the improper joinder, the trial should not be treated as a nullity. This therefore implies that So long as the anomaly of misjoinder does not occasion an injustice, Courts can disregard the impropriety of technicalities and deal with substantial justice.

·       Misjoinder: Where offences are not founded on the same facts,, or do not form part of a series of the same or similar character are charged in the same charge sheet or information, the same will be ruled improper as it amounts to misjoinder.⁵⁷ In Republic v. Joseph,⁵⁸ the appellant was charged on three counts: a) wounding X with intent to cause grievous bodily harm, b) malicious damage to property, and c) 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.

·       Description of each offence: Where more than one offence is charged in a charge or information, a description of each offence so charged must be set out in a separate paragraph of the charge or information called a ‘count.’

·       Power of the Court: Where, before trial, or at any stage of a trial, the Court is of the opinion that an accused person may be embarrassed in his defence by reason of being charged with more than one offence in the same charge or information, or that for any other reason it is desirable to direct that the person be tried separately for any one or more offences charged in a charge or information, the Court may order a separate trial of any count(s) of that charge or information.

11.                JOINDER OF PERSONS (S.136, CrPC):

·       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.

·       Under Section 136 of the CrPC, the following persons may be joined in one charge and may be tried together. Persons accused of:

a)       the same offence committed in the course of the same transaction;

b)       an offence, or an attempt to commit the offence, or abetment;

⁵⁶ (1952) EA 471. See, R. v. M., (1938).

⁵⁷ See, Mwero v. Republic, (1990) KLR 267.

⁵⁸ (1954) 21 E.A.C.A. 311.

c)       more offences than one of the same kind (i.e., offences punishable with the same amount of punishment under the same Section of the Penal Code or, of any other Act or law) committed by them jointly within a period of 12 months;

d)       different offences committed in the course of the same transaction;

e)       an offence under Chapters XXVI to XXX, inclusive, of the Penal Code, Cap. 63, and persons accused of receiving or retaining property, possession of which is alleged to have been transferred by an offence committed by the first-named persons, or of abetment of or attempting to commit either of the last-named offences;

f)        an offence relating to counterfeit coin under Chapter XXXVI of the Penal Code, and persons accused of another offence under that Chapter relating to the same coin, or of abetment of or attempting to commit any such offence.

·       Bribery: In Republic v. Nathan,⁵⁹ the appellant, a travel agency proprietor was charged together with a public officer on a number of counts. He was convicted on one count of wrongfully and corruptly giving money to a public officer. The officer was also convicted in the same trial for receiving the said bribe. On appeal, the East African Court of Appeal held that there had been no such misjoinder as the concatenation of events was uninterrupted and therefore the offences constituted the same transaction.

·       Herdsmen: In Republic v. Ndungi and others,⁶⁰ 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.

·       Rape: In Republic v. Hassan wa Saleh and Another,⁶¹ it was held that two persons accused of raping two different women separately albeit at about the same time and place could not be tried at the same trial, the transaction not being the same.

12.                AMENDMENT OF CHARGES/INFORMATION (S.214, CrPC):

·       Conditions for amendments of a charge: They include:

a)       It can be made at any stage of a trial before the close of the case for the prosecution: However, in some cases, for instance, in Republic v. Maulidi Abdalla Change⁶² where a charge was amended at the close of the defence case with the result that a new charge with a heavier penalty was introduced, the Court held that “a charge can be substituted even after the close of the defence case but, the substituted charge can only be allowed if it will not occasion injustice to the accused person. Moreover, the Court is not entitled to make a new case other than the one put forward by the prosecution.⁶³

b)       It can be made where it appears to the Court that the charge is defective, either in substance or in form: This implies that the Court can move itself require the prosecutor to amend the charge, or the prosecutor can make an application to the Court to amend the charge.   A new charge is brought with red underlinings to show that it has been amended.⁶⁴

⁵⁹ (1965) EA 777.

⁶⁰ (1906-08) 2 EALR 85.

⁶¹ (1906-1908) 2 EALR 105.

⁶² (1964) E.A122. See, Republic v. Benjamin Sauzier, (1962) EA 50.

⁶³ Republic v. Benjamin Sauzier, (1962) EA 50.

⁶⁴ S.214(1), the Criminal Procedure Code, Cap 75.

c)       The Court may make an 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 it thinks necessary to meet the circumstances of the case: ‘Substitution’ means that there is a totally different charge. For instance, if someone is charged with ‘dangerous driving,’ later the victim of the accident dies, the prosecution can substitute the charge with one of ‘causing death by dangerous driving.’ The ‘addition of a new charge’ crops up where in the course of giving evidence, it emerges that some other charges that ought to have been incorporated in the initial charge were not, the Court can direct the said charges to be drafted and the police will have to go and make a new charge sheet.

·       Effects of amendment of a charge: Where a charge is so altered:

a)       the Court must call upon the accused person to plead to the altered charge;

b)       the accused may demand that the witnesses be recalled and give their evidence afresh or, be further cross-examined.

c)       the prosecution will have the right to re-examine witnesses on matters arising out of further cross- examination.

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

·       Effect of variance: Where an alteration of a charge is made and there is a variance between the charge and the evidence, the Court will, if it is of the opinion that the accused has been thereby misled or deceived, adjourn the trial for such period as may be reasonably necessary.

·       Amendment of information (S.275 CrPC): The following are the provisions:

a)       Conditions for amendments of information:

i.               Every objection to an information for a formal defect on the face thereof shall be taken immediately after the information has been read over to the accused person and not later.

ii.              Amendment can be made where, before a trial upon information or, at any stage of the trial, it appears to the Court that the information is defective.

iii.            The Court must make an order for the amendment of the information as it thinks necessary to meet the circumstances of the case, unless, having regard to the merits of the case, the required amendments cannot be made without injustice.

b)       Effects of amendment of information:

i.               Where an information is so amended, a note of the order for amendment must be endorsed on the information, and the information shall be treated for the purposes of all proceedings in connexion therewith as having been filed in the amended form.

ii.              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 separate trial of any count or counts of the information.

iii.            Where, before a trial upon information or at any stage of the trial, the Court is of the opinion that the postponement of the trial of the accused is expedient as a consequence of the exercise of any power of the Court, it shall make such order as to the postponement of the trial as appears necessary.

iv.            Where an order of the Court is made for a separate trial or for postponement of a trial:

·       the procedure on the separate trial of a count shall be the same in all respects as if the count had been found in a separate information, and the procedure on the postponed trial shall be the same in all respects (provided that the assessors, if any, have been discharged) as if the trial had not commenced; and

·       the Court may make such order as to admitting the accused to bail, and as to the enlargement of recognizances and otherwise, as the court thinks fit.

13.                QUASHING OF INFORMATION:

·       Common Law Rule: It indicated that if an indictment or inquisition was bad on the face of it, or there was any such insufficiency either in the caption or in the body of an indictment as would make erroneous any judgment given or any part thereof, the Court may in its discretion quash the indictment.⁶⁵

·       Exercising trade: In Republic v. Tucker,⁶⁶ an indictment against six people for unlawfully exercising a trade was quashed because it was a distinct offence in each case and could not be made the subject of joint prosecution.

·       Quashing based on chances of success: In Republic v. The Chairman of London Sessions Ex parte Downes,⁶⁷ it was held that a Court is not entitled to quash an indictment simply because an examination of the dispositions has led it to the conclusion that the prosecution would not succeed on the account.

·       Section 276 of CrPC: It provides that if information does not state and cannot, by amendment authorized by Section 275, be made to state an offence of which the accused has had notice, it shall be quashed either on a motion made before the accused pleads or a motion made in arrest of judgment.

·       Delivery of statement to the Registrar: In the event that Section 276 is invoked, a written statement of every such motion must be delivered to the Registrar or other officer of the Court on behalf of the accused and shall be entered upon the record.

·       If an information does not state and cannot even after amendment: be made to state an offence for which the accused has had notice, it shall be quashed either on a motion, made before the accused pleads or on a motion in arrest of judgment.

·       The motion shall be written and delivered: to the Registrar or other officer of the Court.

14.                CONCLUSIONS:

·       In view of the above, it is clear that it is in the spirit of the Constitution of Kenya, 2010 to ensure justice for all. Thus,:

a)       criminal trials must be dealt with expeditiously;

b)      
every charge or information should contain sufficient information with a statement of the specific offence(s) with which the accused person is charged, together with such particulars as may be

⁶⁵ See, Arch Bold J. f., Evidence, Pleadings and Criminal Practice 88, 5^th edn., (London: Sweet and Maxwell, 1962).

⁶⁶ 4 Burr 2046. See, Republic v. Philips, 2 str 921.

⁶⁷ 1954 1 QB 1.

necessary for giving reasonable information as to the nature of the offence charged. This is to avoid duplicity, amendment of the charges, and to give adequate opportunity to an accused to prepare his defense;

c)       failure to make the offence well known to the accused leads to contravention of the Constitution and miscarriage of justice.

·       As such, persons framing charges must ensure that proper and specific information, as per the law, is given. For instance, when a person enters a house with the intent to commit a felony contrary to Section 304 of the Penal Code, Cap 63, if the accused gained entry during daytime, then the offence will be ‘housebreaking’ – S.304(1). However, if the felon is alleged to have been committed at night, the proper offence to charge will be that of ‘burglary’ – S.304(2).

 

15.                ILLUSTRATION - 1:

On 10^th March 2013, Mr. Cool Wa Mwende and Mr. Man Maish raided Wakulima Commercial Bank Ltd., at 10am along Wabera Street in Nairobi. While armed with a Cieska pistol hired from a police officer, Corporal Nya Gor robbed Ksh.15,000,000 from the Bank’s strong room custodian Mr. Weta Watata. The pistol was hired out by Corporal Nya Gor for Ksh.20,000 on condition that it was returned to her by 6pm with a 20% commission of the gross earnings from the robbery. Because of the chaotic traffic situation Wa Mwende and Man Maish at gunpoint took control of Ms. Supu and her Toyota Vitz car registration number KKK 3345. Mr Maish drove up to Thika Road at a bus stage called Poesha Kiu where Mr. Ngware Wa Nyambura joined them. Wa Nyambura took charge of the car and drove to a suburb of Nairobi County called Kahawa Sukari. While driving to Kahawa Sukari, Wa Nyambura touched Ms. Supu on her hands and buttocks while uttering the following words, “wewe ni msupu (which words meant and were understood to mean that Ms. Supu is beautiful).” Ms, Supu was very offended by those remarks and the physical contact.

Ms. Supu was dropped off at Kahawa Sukari during which time Mr. Nyambura slapped her across the face and kicked her in the abdomen for having had Ksh.50 only and an old Nokia phone 3310 series popularly known as ‘Mulika Mwizi’ on her, as opposed to carrying a lot of money and a smart phone. Before taking control of the Toyota Vitz car, Mr. Wa Nyambura had been involved in a robbery at an M-Pesa Agency in Mathere North Constituency of Nairobi County where Ksh.50,000 was robbed from Mapenzi Enterprise Limited. It was what is described in the underworld as a one man job. He did not have any assistant as he did not need any. Wa Nyambura described it as a simple assignment. As soon as Ms. Supu was dropped off, police on patrol challenged Wa Nyambura, Mamwende and Maish to surrender which they did. Arrested alongside the trio is one Rose Yusuf Keverenge a village elder in Ruai staggering home from a bar beer party. Keverenge was generally drunk and disoriented. The four are now in police custody at Kasarani Police Station. The following items are recovered by police:

a)      Toyota Vitz car;

b)      Nokia Phone 3310 series;

c)      Cieska pistol.

The money is not recovered although the police allege that a mysterious 5^th suspect ran away with a sack believed to be full of money, an account of events disputed by Ms. Supu and the persons in custody. The OCS has ordered you to prepare the relevant occurrence book entries and charge(s).

 

Date: 10/03/2013

OCCURRENCE BOOK

 

No.	Reference, If Any	Hour/Minute	Case File No.	Nature of Occurrence	Remarks	Signature
1	-	00.00	OB Opened	Noted	-
2	-	16.00	-	Mr. Cool Wa Mwende and Mr.  Man        Maish                raided Wakulima                                       Commercial Bank Ltd., at 10am along Wabera Street in Nairobi and robbed Ksh.15,000,000 from the Bank’s strong room custodian Mr. Weta Watata. Suspects   were armed with a Cieska pistol hired from a police officer, Corporal          Nya                        Gor Ksh.20,000 on condition that it was returned to her by  6pm        with a                 20% commission of the gross earnings from the robbery. Suspects                robbed      and attacked Ms. Supu of her Toyota Vitz car registration number KKK 3345, Ksh.50 and Nokia Phone 3310 series. Mr. Ngware Wa Nyambura sexually assaulted Ms. Supu by touching her hands and buttocks and uttering the words, “Wewe ni Msupu.”	Constable Samwel Njoroge                     to conduct                     the investigation

				Mr. Wa Nyambura is said to have been involved in a robbery at an M-Pesa Agency in Mathere North Constituency of Nairobi County where Ksh.50,000 was robbed from Mapenzi Enterprise Limited. After Ms. Supu was dropped off by the suspects, the police on patrol challenged Wa Nyambura, Mamwende and Maish to surrender which they did. The following items are recovered by police: Toyota Vitz car; Nokia Phone 3310 series; and Cieska pistol. No money was recovered from the suspects.
3	-	16.00	-	Rose Yusuf Keverenge a village elder in Ruai was arrested   while   staggering home from a bar beer party.	Constable Mwaura Kinoti to conduct the investigation.
4	-	23.59	-	Light showers, cloudy day	Noted

 

 

 

 

 

 

 

 

O.B. No.                       ………

THE KENYA POLICE CHARGE SHEET

 

 

Police Case No. ………

Date to Court.              ………

Court File No.              ………

 

Names	Surname/ Father’s Name	Identity No.	Sex	Nationality	Age	Address
Mr. Cool	Wa Mwende	38474058	M	Kenyan	Adult	P.O.               Box 237-00100, Nairobi.
Mr. Man	Maish	67469373	M	Kenyan	Adult	P.O.               Box

						864-00100, Nairobi
CHARGE Count 1	ROBBERY WITH VIOLENCE CONTRARY WITH SECTION 296(2) OF THE PENAL CODE, CAP 63
Particulars             of the Offence	MR. COOL WA MWENDE AND MR. MAN MAISH68 On 10th March 2013 at 10am raided Wakulima Commercial Bank Ltd., along Wabera Street in Nairobi while armed with a dangerous weapon namely Cieska pistol and robbed the said bank of Ksh.15,000,000 from the Bank’s strong room custodian Mr. Weta Watata. Immediately thereafter, they violently robbed Ms. Supu of her Toyota Vitz car registration number KKK 3345, Ksh.50 and Nokia Phone 3310 series. (FOR OTHER COUNTS, SEE ATTACHED SHEET)
If                Accused Arrested	Date                      of Arrest	Without/With a Warrant	Date                 App. To Court	Bond or   Bail Amount	Is        Application           for Summons to Issue
	10/03/2013	Without	11/03/2013	-	-
Remanded                             or Adjourned	Remanded
Complainant and Address	1.       Ms. Supu, Kahawa Sukari, P.O. Box 960-00100, Nairobi. 2.       Wakulima Commercial Bank Ltd., Wabera Street in Nairobi.
Witness	-
Sentence Court and Date	CHIEF MAGISTRATE’S COURT, NAIROBI ………. If Fine Paid………

……………………………………………………………………. For Officer in Charge of Kasarani Police Station

 

 

Investigation Action	Date	Time	Initials                      of Recording Officer
Accused informed of charge	10/03/2013	09.10	S.N
Finger prints taken by	10/03/2013	16.34	P.K
Finger prints to bureau	10/03/2013	16.51	S.D
Finger prints from Bureau	11/03/2013	08.25	S.D
Completed certificate of previous convictions to Bureau	-	-	-
Charge Register completed and case file	-	-	-

 

3.                   Antecedents of Accused (As known to investing officer):

⁶⁸ In Particulars, every Count Must answer Who, When, Where and How Questions.

N/A

4.                   Brief circumstances of case (Evidence of arrest, etc.):

The suspects were arrested after surrendering themselves immediately they dropped off Ms. Supu by the police on patrol.

 

 

ATTACHMENT - 1

 

CHARGE Count 2	POSSESSION OF FIREARM WITHOUT A VALID LICENCE CONTRARY TO SECTION 89(1) OF THE PENAL CODE, CAP 63
Particulars             of the Offence	On 10th March 2013, Mr. Cool Wa Mwende and Mr. Man Maish raided Wakulima Commercial Bank Ltd., at 10am along Wabera Street in Nairobi while armed with a Cieska pistol hired from a police officer, Corporal Nya Gor.
CHARGE Count 3	ACQUISITION OF A FIREARM CONTRARY TO SECTION 4(2) OF THE FIREARM ACT, CAP 114
Particulars             of the Offence	On 10th March 2013, Mr. Cool Wa Mwende and Mr. Man Maish raided Wakulima Commercial Bank Ltd., at 10am along Wabera Street in Nairobi while armed with a Cieska pistol hired from a police officer, Corporal Nya Gor. The pistol was hired out by Corporal Nya Gor for Ksh.20,000 on condition that it was returned to her by 6pm with a 20% commission of the gross earnings from the robbery.

 

 

ATTACHMENT – 2 MR. WA NYAMBURA

CHARGE Count 1	ROBBERY CONTRARY WITH SECTION 296(1) OF THE PENAL CODE, CAP 63
Particulars                              of the Offence	On 10th March 2013, Mr. Wa Nyambura lonely robbed an M-Pesa Agency (Mapenzi Enterprise Limited) in Mathere North Constituency of Nairobi County of Ksh.50,000.
CHARGE Count 2	INDECENT ACT WITH AN ADULT CONTRARY TO SECTION OF 11A OF THE SEXUAL OFFENCES ACT, 2006
Particulars                              of the Offence	On 10th March 2013, Mr. Ngware Wa Nyambura indecently acted with Ms. Supu by touching her hands and buttocks and uttering the words, “Wewe ni Msupu.”
CHARGE Count 3	ASSAULT WITH   THE   INTENTION   OF   CAUSING   ACTUAL   BODILY   HARM CONTRARY WITH SECTION 251 OF THE PENAL CODE, CAP 63
Particulars             of the Offence	On 10th March 2013, Mr. Ngware Wa Nyambura slapped Ms. Supu across her face and kicked her in the abdomen for having had Ksh.50 only and an old Nokia phone 3310 series popularly known as ‘Mulika Mwizi’ on her, as opposed to carrying a lot of money and a smart phone after she was dropped off at Kahawa Sukari.
Alternative                              to Count 3	COMMON ASSAULT CONTRARY WITH SECTION 250 OF THE PENAL CODE, CAP 63

Particulars             of the Offence

On 10th March 2013, Mr. Ngware Wa Nyambura slapped Ms. Supu across her face and kicked her in the abdomen for having had Ksh.50 only and an old Nokia phone 3310 series popularly known as ‘Mulika Mwizi’ on her, as opposed to carrying a lot of money and a smart phone after she was dropped off at Kahawa Sukari.

 

 

 

ATTACHMENT – 3

MR. ROSE YUSUF KEVERENGE

 

CHARGE Count 1	DISORDERLY CONDUCT CONTRARY TO SECTION 33(1) READ WITH SECTION 33(2) OF THE ALCOHOLIC DRINKS CONTROL ACT, 2010
Particulars                             of the Offence	On 10th March 2013, Mr. Rose Yusuf Keverenge a village elder in Ruai was found drunk and staggering home from a bar beer party.

 

 

 

 

16.                CONSPIRACY:

·       Meaning: In Crofter Hand Woven Harris Tweed CO Ltd v. Veitch, “conspiracy when regarded as a crime is an agreement of two or more persons to effect any unlawful purpose … and the crime is complete if there is such an agreement.”

·       Lawful Purpose: There can also be conspiracy to do a lawful purpose by unlawful means.

·       Conspiracy is an inchoate offence.⁶⁹ Such offences permit intervention at an earlier stage before any harm is done but only where the accused begins to manifest his criminal intention overtly. For the actus reus, parties must have at least reached a decision to carry out the unlawful object. But, to reach an agreement/decision is essentially a mental operation, though manifested by some acts of some kind.

·       Conspiracy to commit a felony: Section 393 of the Penal Code, Cap 63 provides that any person who conspires with another to commit any felony or to do any act in any part of the world which if done in Kenya would be a felony, and which is an offence under the laws in force in the place where it is proposed to be done, is guilty of a felony and is liable if no other punishment is provided to imprisonment for seven years, or if the greatest punishment to which a person convicted of the felony in question is liable is less than imprisonment for seven years then to that lesser punishment.”

·       Common elements under Section 393:

a)       Agreement: There must be an agreement between two or more persons to effect the particular prohibited purpose. The agreement could be express or implied. In Republic v. Karia,⁷⁰ it was held that the existence of an agreement may be inferred from the facts.

b)       Parties must agree to effect the unlawful purpose: Conspiracy will continue to subsist as long as parties agree. It will only terminate on its completion by performance, or abandonment, or frustration. One can join the existing conspiracy. It is not necessary for all parties to a conspiracy to be in contact with

⁶⁹ Inchoate meaning just begun or undeveloped.

⁷⁰ 16 E.A.C.A 116.

each other. The important thing is that parties must have a common purpose communicated to each other

c)       There must be at least two parties to the agreement but the other need not be identified: If all the other conspirators are acquitted, the remaining conspirator must also be acquitted. In Republic v. Mawji, the Privy Council held that under the English rule, a husband and a wife could not commit conspiracy applied to all valid marriages, including polygamous marriages. In conspiracy, husband and wife are regarded as one person.

·       Conspiracy to commit a misdemeanour: Section 394 of the Penal Code, Cap 63 provides that any person who conspires with another to commit a misdemeanor, or to do any act in any part of the world which if done in Kenya would be a misdemeanor and which is an offence under the laws in force in the place where it is proposed to be done, is guilty of a misdemeanor.

·       Other conspiracies: Section 395 provides that any person who conspires with another is guilty of a misdemeanour in the case of the following: If s/he:

a)       prevents or defeats the execution or enforcement of any written law; or

b)       causes injury to the person or reputation of any person; or

c)       depreciates the value of any property of any person; or

d)       prevents or obstructs the free and lawful disposition of any property by the owner thereof for its fair value; or

e)       injures any person in his trade or profession; or

f)        prevents or obstructs by means of any act or acts which if done by an individual person would constitute an offence on his part, the free and lawful exercise by any person of his trade, profession or occupation; or

g)       effects any unlawful purpose; or

h)       effects any lawful purpose by any unlawful means.

·       Republic v. Zulu⁷¹ is a good example of criminal conspiracy of making lawful protests by unlawful means. In this case the accused was charged with conspiring to injure the Ndola Municipal Council in its trade contrary to the Zambian Penal Code, by urging people to boycott its beer. The Court held that it did not matter whether the ultimate object of the accused was to make a lawful protest, if they did that by employing unlawful means, i.e., boycotting to cause financial injury to the council.

·       Conspiracy to defraud: Under Section 317 of the Penal Code, Cap 63, any person who conspires with another by deceit or any fraudulent means to affect the market price of anything publicly sold or to defraud the public or any other person whether a particular person or not, or to extort any property from any person is guilty of a misdemeanor and is liable for imprisonment for 3 years. In Scott v Metropolitan Police Commissioner,⁷² the accused agreed with the employees of cinema owners that, in return for payment, they would abstract films without the consent of the employers or copyright owners so that the accused would make copies and distribute them for profit. The House of Lords held that the accused were guilty of conspiracy to defraud. The House of Lords went on to observe that “an agreement by two or more by

⁷¹ (1961) R. & N. 645 (N.R).

⁷² (1975) AC 819: (1974) 3 All ER 1032.

dishonesty to deprive a person of something which is his or to which he might be entitled, and an agreement by two or more by dishonesty to injure some proprietary right of his suffices to constitute the offence of conspiracy to defraud.”

·       The general rule of practice is that: it is undesirable to charge for the offence of conspiracy where specific offences are available. This is mainly because:

a)       conspiracy has matured into a known specific offence, hence it is preferable to charge the offence disclosed by available evidence⁷³;

b)       in a charge of conspiracy, there has to be at least two accused persons.

·       Substantive offence: In Uganda v. Milenge & Anor.,⁷⁴ it was held that it is improper to join other offences to a charge of conspiracy especially where the conspiracy charge covers the substantive offence.

 

17.                PLEAS

17.1             INTRODUCTION:

·       Once an accused person is brought to Court, the next step is for him to be informed of and be called upon to answer the criminal charges preferred against him. This process is known as arraignment.⁷⁵ The charge is read in an open Court complete with the statement of offence and the particulars of each count to which he is required to respond. This is referred to as taking a plea.

17.2             MEANING OF THE TERM ‘PLEA’:

·       A ‘plea’ is a formal statement made in Court by or on behalf of an accused person as response to the charge made against him/her.⁷⁶

·       The four elements in the definition are: a) Formal statement, b) Made in Court c) By or on behalf of an accused, d) In response to a charge made against the accused.

·       Fitness to plead: A person is unfit to plead if he is incapable of understanding the proceedings so that he can: a) put forward his defence; b) give proper instructions to defence counsel; and c) follow the evidence.

17.3             TYPES OF PLEAS:

In answer to a charge, an accused person may:

a)       Plead guilty.

b)       Plead not guilty.

c)       Say nothing: i.e., refuse to plead, assuming that he understands the proceedings.

d)       Demurrer: Give a legal opinion i.e., admit the facts but say they do not amount to an offence known to law.

e)       Plead: autrefois acquit,⁷⁷ or autrefois convict,⁷⁸ or pardon.⁷⁹

f)        Say that the Court has no jurisdiction over him.

⁷³ Bwononga Momanyi, Procedures in Criminal Law in Kenya, (Nairobi : East African Educational Publishers, 1994)

⁷⁴ (1970) E.A 269 (CA).

⁷⁵ The term arraignment is used only in trials before the High Court.

⁷⁶ Oxford English Dictionary of Law.

⁷⁷ This is where the accused was charged and acquitted of the similar charges under the same facts.

⁷⁸ This is where the accused was charged and convicted of similar charges under similar facts.

⁷⁹ If the accused 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 must first conduct a voir dire, 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 will be required to plead to the charge, S.207(5), the Criminal Procedure Code, Cap 75.

g)       Plead guilty subject to a plea agreement.⁸⁰

17.4             EQUIVOCAL AND UNEQUIVOCAL PLEAS:

·       Equivocal: means not having one clear or definite meaning or intention, or being able to be understood in more than one way.

·       Equivocal plea: It is one that is contradictory. It is a plea of guilty made by an accused person before a Court in circumstances where the plea does not necessarily admit that the accused is guilty of the crime charged, i.e., where the charge is duplicitous (that is, contains more than one offence), or where the facts upon which the plea is based indicate that the accused is not guilty of the offence charged.⁸¹

·       Unequivocal plea: It is one that is without ambiguity; singularly clear, unmistakable, or unquestionable.

·       In murder cases: a plea of guilty can only be accepted in very clear cases/unequivocal. The plea as recorded must not be capable of any other interpretation other than that of guilty. In Republic v. Kesenta and Another,⁸² an accused person pleaded guilty to murder in the following terms: “Yes I killed him intentionally after Chilewe had asked me to kill the deceased.” The Court ruled that the plea of guilty was not unequivocal as the appellant claimed to have acted in response to a request from another person, and that a plea of guilty to murder should only be accepted in the clearest case.

·       Presence of ambiguity: In Republic v. Mutua,⁸³ it was stated that no man is to be convicted on a plea which is ambiguous. If there is any ambiguity, it is to be taken as a plea of not guilty.

17.5             RECORDING OF PLEAS:

·       Laws: The procedure is governed by the provisions of the Criminal Procedure Code, Cap 75 and Court practice i.e., precedents of the superior Courts.

·       Production of the accused in Court: The accused person is brought or arraigned in Court. The process of arraignment is dealt with by Sections 274 to 283 of the CrPC. If the accused is on bail bond, s/he must attend the hearing on the date indicated and if s/he is in custody, it is the State’s duty to ensure his/her attendance. On appearance before the Court, a judicial officer must ensure that:

a)       the charge is properly drawn;

b)       it must be in regard to an offence that is known to law, and

c)       it is not be duplex.

·       Admit or deny: The substance of the charge must be stated to the accused person by the Court, and he must be asked whether he admits or denies the truth of the charge.⁸⁴ In the High Court, the charge is read to the accused by the Registrar or other Officer of the Court⁸⁵ while in the subordinate Courts, it is read by the Magistrate him/herself.⁸⁶ In Republic v. Yonasani Egalu and Others,⁸⁷ the Court held that it is most desirable that not only every constituent of the charge be explained to the accused person, but that he should be required to admit or deny every constituent part thereof and that what he says should be recorded

⁸⁰ Criminal Procedure in Kenya and Uganda 57, (Law in Africa, 1964).

⁸¹ Butterworth’s Concise Australian Legal Dictionary, 2^nd edn.

⁸² (1975) E.A 274 (C.A).

⁸³ (1951) 18 EACA 311.

⁸⁴ S.207(1), the Criminal Procedure Code, Cap 75.

⁸⁵ S.274 , the Criminal Procedure Code, Cap 75.

⁸⁶ In the High Court, proceedings are in English while in the Magistrate’s Court, a party or person may use either English or Kiswahili language but in practice, the proceedings are recorded in the English language.

⁸⁷ (1965) 9 EACA 65.

in a form which would satisfy an appeal Court that he fully understood the charge and pleaded guilty to every element of it unequivocally.⁸⁸

·       Delegating plea-taking duty: It is not proper for the Magistrate to delegate the duty to the Court Clerk and even for simple charges, they must be read under the direction of the Court.⁸⁹

·       Interpreter: Where the accused person does not understand the language of the Court, it is mandatory that an interpreter be availed to translate the charge and the proceedings for the benefit of the accused and the Court. Such interpreter must first be sworn to faithfully and accurately discharge the task and this should be reflected on the record. In Republic v Abdi Ali,⁹⁰ the Court held that a plea taken through an unofficial unsworn interpreter cannot be regarded as unequivocal.

·       The accused person should plead personally and not through his advocate: This was the holding in Ganji v Republic.⁹¹ It is only in situations where a statute allows an advocate to plead on his client’s behalf, such as in cases involving minor traffic infractions that this rule is qualified.

·       Accused’s word: The plea should be recorded as nearly as possible in the accused person’s own words,

Wamithandi v Republic.⁹²

17.6             PROCEDURE IN RECORDING A ‘PLEA OF GUILTY’:

·       This is a formal acknowledgement of guilt made by the accused person in answer to a charge read to him/her in a Court of law.

·       Sections 207(2) and 281 of the CrPC relate to the recording of a plea of guilty.

·       The requirements for a plea of guilty were codified by the Court of Appeal in the case of Adan v. Republic⁹³ and have since been universally followed by the Courts. Courts have always been concerned that before a plea of guilty is accepted and acted upon, certain vital safeguards must be strictly complied with, namely:

a)       The plea must be free and voluntary: In Republic v. Olel,⁹⁴ the High Court held that if a plea of guilty is not voluntary or is obtained by force, or threats, or torture, or even deception, it cannot be said to be unequivocal. It would, in these circumstances be a nullity.

b)       The person pleading guilty fully understands the offence: with which he is charged before s/he admits the charge. This requirement applies not only to offences punishable by death but to all offences.

c)       Where the offence is one punishable by death: the Court recording the plea of guilty must show in its record that the person pleading guilty understands the consequences of his plea.

d)      The prosecution should then: immediately state the facts and the accused should be given an opportunity to dispute or explain the facts or to add any relevant facts.

e)       If the accused does not agree with the facts: or raises any question of his guilt his reply must be recorded and a change of plea entered.

 

⁸⁸ See, Ngigi v Republic, (1987) KLR 98 where it was held that the accused should be required to admit or deny every element of the charge unequivocally.

⁸⁹ Bench Book for Magistrates In Criminal Proceedings.

⁹⁰ 21 (2) K.L.R. 116.

⁹¹ (1910-20) 2 ULR 101.

⁹² 3 EALR 101.

⁹³ (1973) EA 45.

⁹⁴ (1989) KLR 444.

f)        If there is no change of plea a conviction: should be recorded and a statement of the facts relevant to sentence together with the accused’s reply should be recorded.

g)       The accused must wish to admit, without any qualification, each and every ingredient of the charge.⁹⁵ In the case of Kariuki v Republic,⁹⁶ where four accused persons were charged jointly, their responses to the facts of the offence were recorded as follows:

Accused 1 - Story is correct

Accused 2 – Do Accused 3 – Do Accused 4 – Do

Court         - Plea of guilty entered by all.

The Court of Appeal held that the word ‘do’ recorded by the trial Court as the accused persons’ answer to the charge meant nothing and was neither an admission nor a denial of the fact.

The Court in Adan v. Republic⁹⁷ proceeded to provide an outline of the manner in which a plea of guilty is to be recorded, as follows:

a)       The trial Magistrate or Judge must first inquire on the language the accused understands.

b)       The Magistrate will then read and explain to the accused the charge and all the ingredients of the offence. This includes, the ‘Statement of the Offence’ and the ‘Particulars of the Offence.’

c)       He should then record the plea in the accused person’s own words and if they are an admission, a plea of ‘guilty’ should be entered.⁹⁸

d)       The prosecution must then, immediately, state the facts and the accused should be given an opportunity to dispute, to explain or to add any relevant facts.

e)       If the accused does NOT agree to the facts or raises any question to the facts, his answers should be recorded and a change of plea entered. If there is no change of plea, a conviction should be recorded alongside a statement of facts relevant as well as the reply of the accused.

f)        Where the accused is charged with more than one count, the Court should record a plea on each count separately.⁹⁹ The aim is to ensure that if there is a plea of guilty, the same is unequivocal.

After a plea of guilty has been entered and the accused has been convicted on his own plea, the Court will pass sentence or make an order against him.¹⁰⁰ Before doing so, however, the Court may permit, or in fact require the complainant to give an outline found in the charges. The prosecution, in giving the said outline, is under a duty not to embellish or exaggerate.¹⁰¹

17.7             PROCEDURE ON THE PLEA OF ‘NOT GUILTY’:

·       The Court enters a plea of ‘Not Guilty’ where the accused person:

a)       does not admit the charge;

b)       does not admit the statement of facts;

c)       refuses to plead.

⁹⁵ Repubic v. Lusiti (1977) KLR 143 (HCK).

⁹⁶ (1984) KLR 809.

⁹⁷ (1973) EA 45.

⁹⁸ S.207, the Criminal Procedure Code, Cap 75.

⁹⁹ Republic v. Ombena, (1981) KLR 450.

¹⁰⁰ S.207, the Criminal Procedure Code, Cap 75.

¹⁰¹ Under Section 207 of the Criminal Procedure Code, the prosecutor is restricted to facts upon which a charge is founded.

·       If an accused person does not admit the truth of the charge, the Court proceeds to hear the complainant and his witnesses and other evidence (if any).¹⁰²

·       Examination of witnesses: The accused person or his advocate may put questions to each witness produced against him.¹⁰³

·       If the accused person does not employ an advocate: the Court shall, at the close of the examination of each witness for the prosecution, ask the accused person whether he wishes to put any questions to that witness and shall record his answer.¹⁰⁴

·       Inculpatory statement: Where an accused person in an answer to a charge at his arraignment makes an inculpatory statement, i.e., statement that does or tends to suggest that he is guilty of an offence, even as he pleads not guilty, such a statement cannot be used against him when the Court considers the case.¹⁰⁵

 

17.8             REFUSAL TO TAKE A PLEA:

·       An accused may fail to plead to the indictment when arraigned in Court either because s/he:

a)       is mentally incapable of doing so; or

b)       is physically incapable of doing so (i.e., deaf or speech handicapped); or

c)       willfully elects to remain silent.

In the first instance, s/he is said to be unfit to plead. In the second, s/he is mute by visitation of GOD; and in the third, s/he is mute of malice.

·       In the High Court: If an accused person arraigned upon information stands mute of malice, or neither will nor by reason of infirmity can, answer directly to the information, the Court may order the Registrar or other officer of the Court to enter a plea of “not guilty” on behalf of the accused person. A plea so entered has the same force and effect as it the accused person had actually pleaded it. The Court may also proceed to try whether the accused person is of sound or unsound mind, and if he is found of sound mind, it proceeds with the trial. If he is found of unsound mind, and consequently incapable of making his defence, the Court will order the trial to be postponed and the accused person to be kept in safe custody and shall report the case for the order of the President.¹⁰⁶

·       In Subordinate Court: If the accused person refuses to plead, the Court shall order a plea of “not guilty” to be entered for him.¹⁰⁷ In Republic v. Wachira and others,¹⁰⁸ when charged, the accused person refused to plead. He proceeded to create uproarious raucous in Court raising doubts as to his sanity. After medical examination, a psychiatrist gave evidence that the accused was mentally normal and was merely simulating disease of the mind. The accused continued to cause disturbance such that it was not possible for the trial to be conducted in his presence. A plea of not guilty was entered, the accused was removed and most of the trial took place in his absence. On appeal, the Court of Appeal upheld the trial Court’s decision.

 

 

 

¹⁰² S.208(1), the Criminal Procedure Code, Cap 75. ¹⁰³ S.208(2), the Criminal Procedure Code, Cap 75. ¹⁰⁴ S.208(3), the Criminal Procedure Code, Cap 75. ¹⁰⁵ Republic v. Atanas, 17 KLR 50.

¹⁰⁶ S.28(1), the Criminal Procedure Code, Cap 75.

¹⁰⁷ S.207(4), the Criminal Procedure Code, Cap 75.

17.9             GENERAL PROVISIONS RELATING TO THE PLEAS OF ‘AUTREFOIS ACQUIT’ AND ‘AUTREFOIS CONVICT’:

·       Prohibition on trial: A person who has been once tried by a Court of competent jurisdiction for an offence and convicted or acquitted of that offence, while the conviction or acquittal has not been reversed or set aside, is not liable to be tried again on the same facts for the same offence.¹⁰⁹

·       Convicted or acquitted person may however, afterwards be tried for another offence:

a)       with which he might have been charged on the former trial under Section 135 (1) of the CrPC.¹¹⁰ Such offence, whether a felony or misdemeanour, is one which might have been charged together in the former information having been founded on the same facts, or formed or was part of a series of offences of the same or a similar character.¹¹¹

b)       causing consequences which constitute a different offence from that for which he was convicted or acquitted. Such a person may be afterwards tried for the last-mentioned offence, if the consequences had not happened or were not known to the Court to have happened at the time when he was acquitted or convicted.¹¹²

c)       constituted by the same acts which he may have committed, if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged.¹¹³

17.10         PLEAS OF AUTREFOIS ACQUIT:

·       Double jeopardy: It is a fundamental principle of law that a man may not be put twice in jeopardy for the same offence. The term autrefois acquit means that if a man has been tried and found to be not guilty of an offence by a Court competent to try him, the acquittal is a bar to a second charge for the same offence.¹¹⁴

·       This principle is a defence for the accused person and is sanctioned and recognized as a plea under Section 279(1)(a) of the CrPC.

·       A discharge of an accused under Section 87 of the CrPC: is not an acquittal and a plea of autrefois acquit cannot be sustained. However, if such application to withdraw under Section 87 is made after the accused has been called upon to give his defence, the Magistrate shall acquit the accused under the said Section and this would operate as a bar.

·       Types of discharges:

a)       Absolute discharge: It occurs when the Magistrate finds the accused guilty and considers that the case is such that he wishes to award no punishment and discharges the accused person by merely cautioning him. The discharge is absolute and the accused may plead autrefois convict to a subsequent charge on the same facts.

b)       Conditional discharge: It occurs when the prosecution requests that the charge be withdrawn at any time before the accused is called upon to make his defence and the Magistrate discharges him. Such a discharge will not operate as a bar to subsequent proceedings and accused cannot plead autrefois acquit.

¹⁰⁹ S.138, the Criminal Procedure Code, Cap 75. ¹¹⁰ S.139, the Criminal Procedure Code, Cap 75. ¹¹¹ S.135(1), the Criminal Procedure Code, Cap 75. ¹¹² S.140, the Criminal Procedure Code, Cap 75.

¹¹³ S.141, the Criminal Procedure Code, Cap 75.

¹¹⁴ Douglas B., Criminal Procedure in Uganda Kenya 58, (Law in Africa, 1964).

17.11         PLEA OF AUTREFOIS CONVICT:

·       This principle is a defence for the accused person and is sanctioned and recognized as a plea under Section 279(1)(a) of the CrPC.

·       Double jeopardy: The rule against double jeopardy applies with equal force to convictions.

·       If the accused gives this plea, but the prosecution denies: the Court shall try the veracity of the plea. If the facts alleged by the accused do not prove the plea, the accused is required to plead to the information.¹¹⁵

·       The test: is not whether the facts relied upon in the two trials are the same but whether the accused has been convicted of an offence which is the same as that with which he is subsequently charged. This test was illustrated in the English case of Republic v. Thomas¹¹⁶ where the accused was convicted of wounding his wife with intent to murder her and sentenced to 7 years’ imprisonment. Within a year and a day, the wife died of the wounding. The Court of Criminal Appeal held that although the accused had been convicted and sentenced for the wounding, he could properly be tried for the murder and could not plead autrefois convict. This is the very principle that underlies Section 140 of the CrPC (above) under which supervening consequences or those not known at the time of the former trial are excluded from the operation of double jeopardy.

·       A previous conviction in a place outside Kenya: may be proved by the production of a certificate purporting to be given under the hand of a police officer in the country where the conviction was had, containing a copy of the sentence or order, and the finger prints, or photographs of the finger prints, of the person convicted, together with proof that they belong to the accused person.¹¹⁷

17.12         PLEA OF PARDON:

·       A plea of pardon: It is a special plea made by an accused person to the effect that he or she has been pardoned, in respect of the offence charged in the indictment.¹¹⁸

·       The President under the COK wields the prerogative power of mercy and may grant a free or conditional pardon to a person convicted, of an offence.¹¹⁹

·       Section 279(1)(b) of the CrPC also recognizes the plea and is a bar to proceedings.

·       When an accused person claims plea of pardon, should the plea be successful after a trial, then the accused is not acquitted but discharged. The same applies for an accused who pleads autrefois acquit. Such a discharge is not an acquittal but merely a finding or order that the accused person is not to be placed upon his trial and such order, being a final order, is capable of being challenged in revisional proceedings.

17.13         CHANGE OF PLEA:

·       For a long time it was held that once an accused person entered a plea of guilty, the plea could not be changed: because, ostensibly, the Court became functus officio.¹²⁰ This, however, is no longer the law.

·       The Court has discretion at any time to allow: before sentence, an alteration of pleas. This was held in the case of Republic v. Mwangi s/o Kamuhi and another.¹²¹ In Republic v. Yusuf Maumba,¹²² the Court of

¹¹⁵ S.279(2), the Criminal Procedure Code, Cap 75.

¹¹⁶ (1949) 2 All E.R. 662.

¹¹⁷ S.142(3), the Criminal Procedure Code, Cap 75.

¹¹⁸ Butterworth’s Concise Australian Legal Dictionary, 2^nd edn.

¹¹⁹ Art.133(1)(a), the Constitution of Kenya, 2010.

¹²⁰ Means duty or authority has come to an end. See, Republic v. Okello, (1969) EA 378 and Republic v. Kibilo ,(1971) EA 101.

¹²¹ (1920) 2 KLR 72.

Appeal also held that the Magistrates’ powers to allow amendment exist only during trial, before conviction and before the Court becomes functus officio. The Court will not have power to re-open the case either of its own motion or on the application of the prosecution, or defence. Similarly, the Court of Appeal in Republic v. Kioko¹²³ held that an accused person may apply to change plea after the prosecution has opened its case and at any time before sentencing; and that it was within the discretion of the Court, taking into account the demands of justice, to decide whether to allow or disallow the application.

·       Factors to be considered: Since it is a discretion, the Judge or Magistrate will want some explanation for the change of heart and may take into account matters such as:

a)       legal advice the accused has received;

b)       age of the accused;

c)       level of intellect and experience of criminal proceedings.¹²⁴

d)       Due to the number of various languages in Kenya, it may be possible for an accused to misunderstand the proceedings.

·       Reading the charge afresh: In Republic v. Chacha,¹²⁵ it was held that if after pleading guilty to a charge, discussion follows and the accused is intending for any reason to amend his plea, the charge should be read to him afresh whereupon his new plea shall be recorded.

·       The accused person is allowed to change plea from ‘guilty’ to ‘not guilty’: and also from ‘not guilty’ to ‘guilty of a lesser cognate offence. This is within the discretion of the Court depending on the demands of justice. The Court is, therefore, not bound to accept the offer even if the prosecution is not opposing. It ought, however, to accept the change of plea to a lesser charge where it has already accepted that of a co- accused.¹²⁶

17.14         PLEA BARGAINING:

·       Introduction: Plea bargaining gives an accused an opportunity to bargain for some leniency instead of each party facing the burden of time and expense culminating in an uncertain outcome. Ultimately, there is mutual benefit by the accused and the State as it is used to reduce the number of cases and their aggregate impact on the criminal justice system while the accused saves costs and gets some leniency.

·       Plea agreement negotiation: Section 137A of the CrPC provides that:

a)       a prosecutor and an accused person or his representative may negotiate and enter into an agreement in respect of:

i.         reduction of a charge to a lesser included offence;

ii.       withdrawal of the charge or a stay of other charges or the promise not to proceed with other possible charges.¹²⁷

b)       Payment of compensation: A plea agreement may provide for the payment by an accused person of any restitution or compensation.¹²⁸

c)       It is entered into only after an accused person has been charged: but before judgment.¹²⁹

¹²² (1966) EA 167.

¹²³ (1983) KLR 289.

¹²⁴ See, Republic v. Dodd, (1981) 74 CR App r 50; S. v. Recorder of Manchester, (1971) AC 481.

¹²⁵ (1953) 20 EACA 339.

¹²⁶ Republic v. Kioko, (1983) KLR 289.

¹²⁷ S.137A(1), the Criminal Procedure Code, Cap 75.

d)       Where a prosecution is undertaken privately: no plea agreement can be concluded without the written consent of the DPP.

·       Plea agreement on behalf of the Republic: Section 137B of the CrPC provides that a plea agreement on behalf of the Republic cab be entered into by the DPP or his authorized officers or by any other person authorized by any written law to prosecute.

·       Initiation of plea agreement: Section 137C provides that:

a)       An offer for a plea agreement: may be initiated by the prosecutor, or an accused person, or his legal representative.

b)       The parties then need to notify the Court: of their intention to negotiate a plea agreement but the Court cannot participate in plea negotiation. This is meant to preserve the Court’s necessary impartiality as an independent arbiter between the parties.

·       Consultation with victim, etc: Section 137D provides that a prosecutor an only enter into a plea agreement:

a)       after consultation with the police officer investigating the case;

b)       with due regard to the nature of and the circumstances relating to the offence, the personal circumstances of the accused person and the interests of the community;

c)       unless the circumstances do not permit, after affording the victim or his legal representative the opportunity to make representations to the prosecutor regarding the contents of the agreement.

·       Form of plea agreement: Section 137E provides that plea agreement shall be in writing, and shall:

a)       be reviewed and accepted by the accused person, or explained to the accused person in a language that he understands;

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

c)       state fully the terms of the agreement, the substantial facts of the matter and all other relevant facts of the case and any admissions made by the accused person;

d)       be signed by the prosecutor and the accused person or his legal representative;

e)       be signed by the complainant if a compensation order has been included in the agreement.

·       Recording of plea agreement by Court: Section 137F provides that before the Court records a plea agreement, the accused person must be placed under oath and the Court must address the accused person personally and inform him of, and determine that the accused person understands:

a)       the right to:

i.         plead not guilty, or having already so pleaded, to persist in that plea;

ii.       be presumed innocent until proved guilty;

iii.     remain silent and not to testify during the proceedings;

iv.      not being compelled to give self-incriminating evidence;

v.       a full trial;

 

vi.      be represented by a legal representative of his own choice, and where necessary, have the Court appoint a legal representative;

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

b)       that by accepting the plea agreement, he is waiving his right to a full trial;

c)       the nature of the charge he is pleading to;

d)       any maximum possible penalty, including imprisonment, fine, community service order, probation or conditional or unconditional discharge;

e)       any mandatory minimum penalty;

f)        any applicable forfeiture;

g)       the Court’s authority to order compensation and restitution, or both;

h)       that by entering into a plea agreement, he is waiving the right to appeal except as to the extent or legality of sentence;

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

·       Competence of accused to make a plea agreement: Section 137G provides that the Court shall, before recording a plea agreement, satisfy itself that at the time the agreement was entered into, the accused person was competent, of sound mind and acted voluntarily.

·       Record of factual basis of plea: Section 137H provides that:

a)       Where the Court accepts a plea agreement:

i.         it must enter the factual basis of the plea on record;

ii.       the agreement becomes binding upon the prosecutor and the accused;

iii.     the agreement becomes part of the record of the Court.

b)       Where a plea agreement entered into is accepted by the Court: the Court shall proceed to convict an accused person accordingly.

·       Address by parties: Section 137I provides that upon conviction, the Court may invite the parties to address it on the issue of sentencing. In passing a sentence, the Court takes into account:

a)       the period during which the accused person has been in custody;

b)       the victim impact statement, if any;

c)       the stage in the proceedings at which the accused person indicated his intention to enter into a plea agreement and the circumstances in which this indication was given;

d)       the nature and amount of any restitution or compensation agreed to be made by the accused person;

e)       the probation officer’s report.

·       Rejection of plea agreement: Section 137J provides that:

a)       Where the Court rejects a plea agreement:

i.         it records the reasons for such rejection and inform the parties accordingly;

ii.        the plea agreement becomes null and void and no party can be bound by its terms;

iii.      the proceedings giving rise to the plea agreement are inadmissible in a subsequent trial or any future trial relating to the same facts; and

iv.      a plea of not guilty can be entered accordingly.

b)       Where a plea agreement has been rejected by the Court and a plea of not guilty consequently entered, the prosecution may, upon being informed of the fact proceed to try the matter afresh before another Court. But, the accused person may waive his right to have the trial proceed before another Court.

c)       Upon rejection of a plea agreement, there cannot be further plea negotiation in a trial relating to the same facts.

d)       Where the Court has rejected a plea agreement, no party can appeal against, or apply for a review of, the order of the Court rejecting the agreement.

·       Withdrawal of plea: Section 137K provides that an accused person may withdraw a plea of guilty pursuant to a plea agreement:

a)       prior to acceptance of the plea by the Court, for any reason; or

b)       after the Court accepts and convicts on the plea, but before it passes a sentence, if the accused person can demonstrate, to the satisfaction of the Court, a fair and just reason for requesting the withdrawal.

·       Finality of judgement: Section 137L provides that the sentence passed by a Court is final and no appeal can lie therefrom except as to the extent or legality of the sentence imposed. However, the DPP, in the public interest and the orderly administration of justice, or the accused person, may apply to the Court which passed the sentence to have the conviction and sentence procured pursuant to a plea agreement set aside on the grounds of fraud or misrepresentation.

·       Protection of plea agreement process: Section 137M provides that the statements or facts stated by an accused person in a plea agreement cannot be used for any other purpose except for the purpose of plea bargaining.

·       Application: Section 137N provides that plea bargaining cannot apply to:

a)       offences under the Sexual Offences Act, 2006;

b)       offences of genocide, war crimes and crimes against humanity.

·       Guidelines on plea bargaining: In England, Lord Parker CJ in Republic v. Turner,¹³⁰ set out some guidelines on plea bargaining:

a)       It may sometimes be the duty of counsel to give strong advice to the accused that a plea of guilty with remorse is a mitigating factor which might enable the Court to give a lesser sentence.

b)       The accused must ultimately make up his mind as to how to plead.

c)       There should be open access to the trial Judge and counsel for both sides should attend each meeting, preferably in open Court; and

d)       The Judge should never indicate the sentence which he is minded to impose, nor should he ever indicate that on a plea of guilty he would impose one sentence, but that on a conviction following a plea of not guilty he would impose a severer sentence.

 

 

¹³⁰ [1970] 54 Cr App 2352.

IDENTIFICATION PARADE

1.                   INTRODUCTION:

·       Identification Parade [hereinafter referred to ID Parade] is an evidence gathering process and not a judicial process.¹

·       In Kenya, ID parade procedure is regulated by:

a)       The National Police Service Act, 2011,² contained in the Police Force Standing Orders, 1974³ (Form P156, Rule 6) previously made under Section 5 of the Repealed Police Act and saved under Section 131 of the succeeding National Police Service Act.

b)       The Evidence Act, Cap 63: Under Section 63(1), oral evidence must in all cases be direct evidence. Under Section 63(2), “direct evidence” means with reference to a fact which could be seen, the evidence of a witness who says he saw it.

·       The general jurisprudence in Kenyan Courts is that failure to adhere to the guidelines in Form P156 will invalidate any evidence gathered through an ID Parade.

·       The Kenya Police Order 15/26 was the initial law governing the conduct of identification parades in Kenya. It was set out by the Police Commissioner with initial instructions from the Chief Justice early in the 1950’s. It was amended in 1974 and labeled as Chapter 46 of the Police Force Standing Orders, Paragraph 6.

·       Police Form 156 is used for the conduct of identification parades and is designed pursuant to the Police Force Standing Orders.

2.                   CONCEPT AND MEANING OF THE TERM “IDENTIFICATION PARADE”:

·       An ‘Identification Parade’ refers to a procedure in criminal law where a group of people with similar characteristics who must be at least 8 in number excluding the one suspected of committing a crime, are assembled to discover whether a witness can identify the suspect whom s/he allegedly saw during the commission of a crime and whom s/he had previously described in sufficient detail to the police.⁴

·       Dock Identification v. Identification Parade: Dock identification involves a witnesses pointing out the accused standing at the dock and identifies him as the culprit who committed the crime. The Courts generally avoid convictions based on dock identification as enunciated in Gabriel Njoroge v. Republic⁵ where it was held that “dock identification of a suspect is generally worthless unless other evidence is adduced to corroborate it.” The same was reiterated in Owen Kimotho Kiarie v. Republic.⁶ Later, the Court

 

¹ An English Scholar, J.W. Sheperd stated that ‘identification parades can be traced as far back as March 1860, when they were instituted by a Metropolitan Police Order. The Order stated that the police should place a suspect amongst his peers and then ask the witness to select the person seen performing the crime.’ The Hansard of 16^th May 1968, Vol. 764 evidences the existence of these regulations governing the Metropolitan District. In Kenya, the origin of the term identification parade can be traced back to the case of R. v. Mwango s/o Manaa, (1936) EACA 1. This was later confirmed in the case of David Mwita Wanja and 2 others v. R., Criminal Appeal No. 117 of 2005 where the Court held that “as long as 1936, the predecessor of this Court emphasized that the value of identification as evidence would depreciate considerably unless an identification parade was held with scrupulous fairness and in accordance with the instructions contained in the police standing orders.”

² See, S.35(b)&(d), the National Police Service Act, 2011.

³ Chapter 46 Standing Order 6.

⁴ Blacks Law Dictionary defines the term ‘Identification Parade’ as a police identification procedure in which a criminal suspect and other physically similar person are shown to the victim or a witness to determine whether the suspect can be identified as the perpetrator of the crime.

⁵ 1982-1988 1 KAR, 34.

⁶ Criminal Appeal No. 93 of 1983 (Unreported).

in Amolo v. Republic⁷ elucidated further by stating, “the reason for the Court’s reluctance to accept a dock identification is part of the wider concept, or principle of law that is not permissible for a party to suggest answers to his own witnesses or, as it sometimes put, to lead his own witness.” Thus, it is generally believed that if an accused is in the dock while the witness testifies against him, undue attention is drawn towards him. His presence in the dock may prompt a witness to point him out as the person he identified at the scene of the crime even though he might not be sure of that fact. Moreover, it is believed that the presence of an accused in the dock might suggest to a witness that he is expected to identify him as the person who committed the offence. This was discussed in the case of Mwiruri and 2 Others v. Republic.⁸ The striking difference between ‘dock identification evidence’ and ‘identification parade evidence’ is that the latter carries a lot of weight, is more credible and is admissible in a Court of law. However, it cannot be said that all dock identifications is worthless. The Court might base a conviction on such evidence if it is satisfied that, on the facts and circumstances of the case, the evidence produced is true and if prior thereto, the Court duly warns itself of the possible danger of mistaken identification.⁹

3.                   PURPOSE OF CONDUCTING ID PARADES:

·       An accused person must be clearly identified. If there is no proper identification then an accused cannot be convicted unless there are other factors connecting him with the offence.

·       In Republic v. Mwango,¹⁰ the Court held that an ID parade must be conducted when the identity of an accused is doubtful. However, in Ajode v. Republic,¹¹ it was held that where a suspect is known to the witness, then there is no need for an ID parade to be conducted as this becomes an instance of demonstrating recognition as opposed to identification of the suspect. Thus, the purpose of conducting ID parades can be said to be twofold. It is held to:

a)       enable eye witness identify the suspect(s) whom s/he allegedly saw prior to a trial being held: In Ajode

v.     Republic,¹² the Court further held that a Court should not place much reliance on dock identification unless it has been preceded by properly conducted identification parade. Similarly in Wafula & 3 Others v. R.,¹³ the Court held that the police failed to investigate the case, particularly conducting ID parade nearly 14 months after the commission of a crime. The identification was held to be valueless.

b)       facilitate due process which is a fundamental requirement in criminal law: Article 50 of the Constitution of Kenya, 2010 cements an accused person’s right to a fair trial. The right includes the right to have an ID parade conducted in accordance with set down procedure prior to an accused being charged. Moreover, the Kenya Police Force Standing Orders at Form No.156 has set down procedures which if flouted will negate the validity of an ID parade as violates an accused person’s rights and may lead to his release. In John Musyimi Mutua & Wambua Mutie v. R.,¹⁴ where witnesses identified one appellant in an ID parade two years after commission of the crime and no ID parade was conducted for

⁷ 1991 2 KAR, 254.

⁸ Criminal Appeal No. 117, 131, 133 of 2000.

⁹ Mwiruri and 2 Others v. Republic, Criminal Appeal No. 117, 131, 133 of 2000.

¹⁰ (1936) 3 EACA 39.

¹¹ (2004) 2KLR 81.

¹² (2004) 2KLR 81.

¹³ (1986) KLR 627.

¹⁴ (2004) eKLR.

the second appellant, the Court held that the admissibility of such identification was shaky and could not be relied upon. The conviction of the accused was quashed. In essence, this illustrates that identification evidence is an essential aspect in criminal procedure for a proper conviction.

4.                   WHEN TO HOLD ID PARADES:

Identification parades are held where:

a)       the police have sufficient information to justify the arrest of a particular person for suspected involvement in an offence;

b)       an eye witness has identified or may be able to identify that person;

c)       the suspect disputes his identification as a person involved in the commission of that offence or where a dispute as to identity may reasonably be anticipated.

5.                   EXCEPTIONS TO IDENTIFICATION PARADES: Where:

a)       suspect does not consent;

b)       it is impracticable to assemble people who resemble the suspect;

c)       the eye witness cannot identify the offender;

d)       the case is one of pure recognition of someone well known to the witness.

6.                   FACTORS INFLUENCING THE IDENTIFICATION PARADE:

These are the factors that the Court will take into account when finding out whether the accused is the perpetrator of the crime, or if an issue is raised concerning the conduct of the parade. These factors include:

a)       Whether the identification (given by a witness) places the accused at the scene of the crime? The factors to be considered are:

i.         Description of the perpetrator: The prosecution should not rely wholly on circumstantial evidence¹⁵ nor should the guilt of the accused be based on suspicion,¹⁶ nor based on public sympathy.¹⁷

ii.       Positive identification: If a witness is unable to identify an accused person at the identification parade, they cannot then purport to identify them at the dock.¹⁸

iii.     The initial report: It should contain a description of the accused persons.

iv.      Nature of the light: Whether the commission of the offence took place at night or during the daytime? Whether there was sufficient light to enable identification of the assailant? How bright was the light?

How far was the light from the persons identified? What was the intensity and size of the torchlight?¹⁹

v.       Time spent with the accused: Whether the witness spent sufficient time with the perpetrators and whether they were alert during the whole ordeal so as to observe each and every move of the accused persons? Whether the witnesses had a conversation with the robbers at close proximity?

vi.      Appearance of the robbers: Whether the accused had concealed their identity, for example, by wearing disguises.

 

 

¹⁵ Mary Wanjiku Gichira v. R. Criminal Appeal No. 17 of 1998 and restated in Joan Chebichii Sawe v. R., Criminal Appeal No. 2 of 2002.

¹⁶ R. v Manyara, Criminal case No. 52 of 2004. ¹⁷ R. v Manyara, Criminal case No. 52 of 2004. ¹⁸ R. v Manyara, Criminal case No. 52 of 2004.

¹⁹ Simon Kihanya Kairu & Another v R., 2006 eKLR: Criminal Appeal 99 & 100 of 2004.

7.                   PROCEDURE UNDER THE FORCE STANDING ORDERS:

Form Police 156 THE KENYA POLICE

(Chapter 46, The Force Standing Orders)

PROCEDURE FOR UNDERTAKING IDENTIFICATION PARADES

If it is necessary for a witness to identify an accused/suspected person, the following procedure must be undertaken:

a)       The parade must be conducted with scrupulous fairness, otherwise the value of identification as evidence will be lessened or nullified.

b)       The witness or witnesses must describe the accused person prior to the parade being conducted: The Courts have held that the witness should not merely state “I will be able to identify the accused if I see him again.” In Ajode v. Republic,²⁰ Court of Appeal held that it is trite law that before an ID parade is conducted and for it to be properly conducted, the witness should be asked to give an adequate description of the accused. This is what will inform the police on whom to include in the parade as there ought to be persons of similar appearance with the suspect. The police should then conduct a fair parade based on the description provided. This was reiterated in Ntelejo Lokwam v Republic.²¹ In this case, the ID parade was held 3 years after the robbery. The Court held that “in the absence of a description being given to the police when the first report was made after the robbery had taken place, it would be impossible for an independent tribunal evaluating the evidence to arrive at a determination that the complainants had in fact made a positive identification of the appellant.”

c)       Parade should be held in privacy: Thus, it should not, unless unavoidable, be held in public but in an enclosed compound or yard from which all spectators or unauthorized persons are excluded.

d)       An accused person must be informed of the reasons for the parade and that he may elect to have an advocate/friend present when the parade is undertaken. The presence of an advocate/friend helps to assure the accused that his rights are well taken care of.

In the case of David Mwita Wanja & 2 Others v. Republic, the appellant contended that his rights were violated as he was not allowed to have a friend present then. However, the Court held that the parade was conducted properly. It was an omission on Mwita’s part to provide a name and address of a friend he wished to call that led him not having a friend present.

In Ssesanga Stephen v. Uganda,²² the Court held that the suspect together with his lawyer have a legal right to be informed that an ID parade is being conducted. The right of an accused to be informed that he can have his lawyer present is mandatory and failure to do so is fatal to the parade.

In Joshua Mutiso Kisese v. Republic,²³ the appellant appealed his conviction on grounds that the officer conducting the ID parade had not followed the rules. The appellant had not been advised of his right to have an advocate or friend present. The officer conducting the parade did not tell the Court whether the witnesses were accommodated before the parade commenced. It also appears that the appellant and his co-accused (who passed

²⁰ (2004) 2KLR 81.

²¹ (2006) e KLR.

²² [1969] EA 365.

²³ (2013) eKLR.

away during the trial) were placed in the same line-up, and the witnesses went before that parade one after the other, without the appellant being asked whether he wished to change the position in which he was standing. The Court quashed the conviction and sentence holding that the parade was improper.

e)       The police officer in charge of the case cannot conduct the parade even though s/he is present. However, if the officer is present, then s/he must be present for the whole of the parade. This is because the rules require that for fairness, an independent person should be present to take care of the rights of the suspect. Another officer other than the one in charge of the case must therefore conduct the parade. Annegret Rust & Colin Tredoux in their Research Paper²⁴ have held that ‘…an officer conducting the parade should state that s/he is independent and that he knows nothing about the case…’

f)        When explaining the procedure to a witness, an officer conducting the parade must inform him/her that s/he will see a group of people which may or may not contain the accused person. The witness should not be told to ‘pick out someone’ or be influenced in any way whatsoever in the process of picking.

In Oluoch v. Republic,²⁵ Ndiku & 2 Others v. Republic²⁶ and Simon Kihanya Kairu & another v. Republic²⁷ the Court held that the identification parades were conducted unprocedurally because the police officer suggested to the witness the presence of the accused/suspected person in the parade.

In Oluoch v. Republic²⁸ the Court held that in an ID parade, it is dangerous to suggest to a witness that the person to be identified is believed to be present at the parade. The value of the parade as evidence is depreciated by this fact.

g)       The witness or witnesses should not see an accused before the parade.²⁹ In it Ajode v. Republic,³⁰ was held that where the witness saw the accused outside the Police Station prior to the parade being conducted, his identification was valueless as he was demonstrating recognition as opposed to identification. However, in Njuki & 4 Others v. Republic, the Court of Appeal held that although there were discrepancies in the conduct of the parade as the witness saw the accused persons before it was conducted, the main factor to be considered in such a case was whether the discrepancies were of such a nature as to create doubt in the guilt of the accused. Where the discrepancies were relatively minor they could be overlooked.

h)       Where a witness is identifying more than one suspect, the members of the ID parade should not be similar i.e., the parade should always contain new members whom the witness has not seen before:

In Mburu & Another v. Republic,³¹ the Court of Appeal held that in cases involving multiple suspects, multiple identification parades must be held. It is improper to line up the same persons in more than one parade. It was thus held that the ID parade of the second accused was valueless, his conviction was quashed and his sentence set aside.

 

²⁴ Annegret Rust & Colin Tredoux, Identification Parades: An Empirical Survey of Legal Recommendations and Police Practise in South Africa’.

²⁵ Criminal Appeal No. 66 of 1984.

²⁶ Criminal Appeal No.11of 2000’A’.

²⁷ Criminal Appeal No.99 &100 of 2004.

²⁸ Criminal Appeal No.66 of 1984.

²⁹ See, Livingstone Mwangi v. Republic, 2007 eKLR where the Court held that the identification parade was not worthy of any evidential value since the identifying witness had already seen the suspect who was arrested; Athumani Manzongo & Another v. Republic, Criminal Appeal Case No.467 of 2000; Omar v. Republic, Criminal Appeal No. 133 of 1985.

³⁰ (2004) 2KLR 81.

³¹ (2008) 1 KLR (G&F).

i)        If a witnesses desires to keep his/her identity secrete and the circumstances are such that the officer in charge of the case deems such a course advisable for reasons of security, victimization, etc., arrangements must be made for the witness to view the parade from a concealed vantage point (i.e., through a window, or from behind a screen). If the witness identifies one or more of the persons on the parade, the persons so identified will be removed from the parade and brought before and confronted with the witness, who will be asked to confirm in the normal way, i.e., by touching the person.

j)        An accused person must be placed among at least 8 persons of similar: i) Age, ii) Height, iii) General appearance and class of life as accused, and iv) if accused is suffering from disfigurement, steps should be taken to ensure that it is not especially apparent.

In Mburu & Another v. Republic,³² the fact that it was conceded, even by the prosecution that the second accused was the only person in the parade with a visible wounded face and swollen eye, the Court held that the parade was improperly conducted and identification of the accused was thus valueless.

Similarly, in R. v. Mwango and Maina, an ID Parade was conducted in hospital where the suspect was admitted and which the ID parade consisted of only 3 men. The officer in charge of the parade asked the complainant “among these men, who assaulted you?” The complainant picked out the accused who was later tried and convicted. The conviction was quashed as this flouted two major police force standing orders: i) the accused should have been placed among eight people of similar height, age and general appearance, and ii) the witness should have been asked to pick out the person he believed committed the offence.

Likewise, in Njihia v. Republic,³³ where the complainant stated that he had identified the appellant at an ID parade in which the appellant and two other suspects had been lined with eleven other persons, the Court of Appeal held that the ID parade conducted was not proper as it consisted of 3 suspects mixed with 11 others contrary to the ratio of 1 suspect to 8 persons which is stipulated in the Police Force Standing Orders. The ratio was thus mathematically too low to exclude the chance of random guesswork.

In the case of David Mwita Wanja & 2 Others v. Republic, the three appellants were charged with robbery with violence. They were convicted and death penalty imposed on them. Their first appeal was dismissed. They appealed to the Court of Appeal. The issue of law raised on appeal centred on the ID parades conducted two months after the commission of the alleged offence. In this case, two parades were conducted. The eight persons who took part in the second parade were however, the same persons in the earlier parade except for the positions they stood. It was submitted by the counsel for the appellants that the evidential value of the ID parades were rendered meaningless since the witness could readily tell by elimination that the two appellants were the only new faces in the parade. The Court concurred and held that it was extremely prejudicial to the appellant.

In the Station Stranglers Case, the suspect had a scar on his chin. After the parade, he raised a complaint that he was easily noticeable due to the scar. The Court rejected the argument stating that the distance between the witness and the accused was enough not to allow the visibility of the scar.

 

 

³² (2008) 1 KLR (G&F).

³³ (1986) eKLR: (1986) KLR 422.

k)       An accused may be allowed to take any position he chooses or change to any position after each identifying witness has left, if s/he so desires. This ensures that the suspect does not feel noticeable and that his protection is guaranteed. The intention of such movement is in no way intended to confuse the witness but to help achieve a positive identification of the suspect.

l)        The witnesses should not be allowed to communicate with each other: This ensures that the suspect is protected from bias in that s/he is not identified on the basis of information received from another witness which, in most cases, might be subjective.

m)     Every unauthorized person must be excluded. This ensures that the accused feels safe and protected from any form of bias or prejudice. Unauthorized persons are likely to interfere with the psychology of the accused person.

n)       Where a witness desires to see an accused person walk, talk, see him with a hat on or off, it should be done, but the whole parade must be asked to do the same. This should apply to the whole parade to ensure that the suspect does not have undue advantage over the others. In the South African case of Two Hats Parade the accused was the only one in the parade with a scarf. The woman identifying him asked the police officer conducting the parade to move and turn sideways and even asked him to produce a noise. The procedure was held improper as the others were not asked to do the same.

o)       Upon identification, the witness must actually touch the person s/he identifies. This ensures certainty and to avoid confusion that is likely to arise due to a misunderstanding. An example is where the police officer understands it another way and records it differently.

p)       A note indicating how the witness identified the accused must be made after each witness leaves the parade. This is done for the purpose of keeping proper records and to help in determining whether the witness positively identified the accused or not. Besides, the circumstances under which the accused was identified will help in comparing the description of the accused by the witness and the identified person in the parade. The record will assist the Court to exercise its discretion with regard to the circumstances surrounding the ID parade.

q)       A record should as well be made by an officer conducting the parade of any comments made by an accused person during the parade, particularly, comments made when the accused was identified. This is done for the purpose of keeping proper records and to determine the question of positive identification. Besides, it is also meant to assist the Court in exercising its discretion in determining whether or not to admit the evidence.

r)        At the end of the parade or during the parade, an officer conducting it should ask the accused is s/he is satisfied that the parade is undertaken in a fair manner and note down reply made.

In Jimmy Wanjohi Wanjiku v. Republic,³⁴ the Court held that the parade was properly conducted as the accused signed the report indicating that he was satisfied with the manner in which it had been conducted.

s)        It is the duty of the Magistrate to ensure that where a police officer gives evidence of an ID parade, the parade was conducted in accordance with the above rules.

 

 

 

 

³⁴ Criminal Appeal No. 128 0f 2006.

Form Police 156 THE KENYA POLICE

(Chapter 46, The Force Standing Orders)

REPORT OF AN IDENTIFICATION PARADE HELD AT

Diaspora Police Station

ON             21/02/1017                    FROM                          10.00AM                  TO                                12.00PM

A.                              CASE FILE NO. CR/24/2/2017

Offence:                        Robbery with violence contrary to Section 296(2) of the Penal Code, Cap 63

Investigating officer:                                        Name:                          Kevin Komite

Rank:                           Corporal whether present: Yes/No

B.                              OFFICER IN CHARGE OF THE PARADE:                                             Name: Chepkogen Kennedy

Rank:                              Chief Inspector

Station:                         Diaspora Police Station

Name of the suspect:                                                                             Margret Halo

Address of the Suspect:                                                                         P.O Box 287, Nairobi. Suspect informed of the purpose of the parade by:                                   Chepkogen Kennedy

Suspect asked if s/he consents to appear on the parade and replies thereto:                                                                                                                                            Yes

                                                                                                                                    Signature of the Suspect

Informed that, if desired, a friend or solicitor may be present and replies thereto: Yes Name and address of friend or solicitor:                                                                                      N/A

                                                                                                                                    Signature of the Suspect

C.                              WITNESS:

No.                               Name                                    Address

1.                                           Winnie Kamau P.O Box 1978-00100, Nairobi

2.                                           Wyclife Lonna P.O Box 992, Nairobi.

3.                                 ……………...                                    ………………………….

D.                              MEMBERS OF THE PARADE:

No.                               Name                                    Address

1.                                           Karen Wambui P.O Box 1978-00100, Nairobi

2.                                           Celestine Dofa P.O Box 112-00100, Nairobi

3.                                           Jackline Owuor P.O Box 78-00100, Nairobi

4.                                           Hellen Kerubo P.O Box 18-00100, Nairobi

5.                                           Sarak Kamau P.O Box 17-00100, Nairobi

6.                                           Asha Kim P.O Box 19-00100, Nairobi

7.                                           Silivia Ogola P.O Box 198-00100, Nairobi

8.                                           Susan Mwikali                         P.O Box 180-00100, Nairobi (N.B: The name of the accused person should not be include in the list of members of the parade)

What objections (if any) were made by the suspect concerning the arrangements, or the persons on the parade? What action was taken concerning the objection:                    No objection

The witnesses’ accommodation arrangements:                                         Witnesses sat in the crime office before the parade

away from the identification yard.

E.                              RESULT OF THE PARADE:

 

Witness No.	Position of the Suspect on the Parade	Was                                  Suspect Identified? If so, how?	Remarks
1	Between 3 & 4 (Suspect should not be counted)	Yes, by limping (This must match with the information the witness     gave     while reporting the incidence)
2	Between 6 & 7	Yes, by   limping   and speaking
3	Between - & -

 

Reply by suspect when asked if satisfied with the conduct of the parade: The suspect was asked and was contended with the process.

                                                                                                                                    Signature of the Suspect

F.                               CERTIFICATE BY THE OFFICER CONDUCTING THE PARADE:

I conducted the whole of the proceedings in connection with the parade and I certify that the instructions on identification parade were strictly complied with and that, as far as possible, the persons taking part in the parade were of similar age, height and general appearance, as the suspect.

Signature:

Date:          21/02/2017                  Rank: Corporal

4.                   CONCLUSIONS:

·       While the law sets out certain requirements of how ID parades should be conducted, requirements are not always followed to the letter, resulting in acquittals for individuals who may have participated in the investigated crime.

·       There are various questions that crop up. For instance, what are the odds that 8 people who look similar to an accused can be found to conduct an ID parade? The probability is extremely low. Why should witnesses whose lives have been threatened by an accused be asked to touch the accused they identify?

·       In the light of the above, it is proposed that the following reforms should be undertaken to change the conduct of ID parades so as to ensure that the evidence obtained cannot be impeached due to a minor technicality and more importantly, justice is not only done but seen to be done:

a)       Amendment of the Witness Protection Act: It should be amended to extend the protection of witnesses to witnesses who identify perpetrators at an ID parade especially for rape victims and victims of robbery with violence. The mere sight of the accused conjures up bad memories and having to touch the accused can be traumatizing for the witness.

b)       The provision for identification through touching should be scraped out: as it is intimidating especially for victims of rape. It may expose a witness to dangerous suspects. A witness may shy away from identification for fear of victimization. It is proposed that number tags can be used to identify suspect.

c)       Adoption of the sequential system of parades: This is where the parade members are presented to the witness individually in a random manner.

d)       Use of photographs in place of corporeal parades: Using photographs in a well prepared manner enables the witness to be confident and relaxed when identifying the accused persons. This is faster and it protects the identifying witness from coming face to face with the suspected person(s). It also removes the aspects of tension and fear among the identifying witness. The South African case of Station Strangler where the boy failed to identify the accused probably due to fear could have easily identified them from photographs.

e)       Incorporation of more advanced methods of identification: This is similar to the use of photographs only that a database system of pictures is used in collaboration with other hi-tech it equipment. ICT technology could also be embraced where a Video Identification Parade Electronic Recording System (VIPER) can be used as it is faster as compared to a real-life ID parade which generally takes weeks to arrange and causes the witnesses distress. Here the suspect’s description is entered into the system and then galleries of images similar to him are displayed. A video of the images is then shown to the witness in controlled conditions.

BAIL AND BOND

1.                   INTRODUCTION:

·       A person is presumed innocent until proved guilty. The presumption of innocence dictates that accused persons should be released on bail or bond whenever possible. It is for this reason that the existing law in Kenya safeguards against interference or violation of a person’s right to liberty.

·       Bail and bond processes protect a person’s liberty during pre-trial and trial processes.

2.                   DEFINITION OF BASIC TERMS:

·       Bail: It is the release from custody, pending a criminal trial, of an accused on the promise that money will be paid if he absconds.¹

Bail can also be defined as an agreement between an accused person or his/her sureties and the Court that the accused person will attend Court when required, and that should the accused person abscond, in addition to the Court issuing warrants of arrest, a sum of money or property directed by the Court to be deposited, will be forfeited to the Court.

·       Bond: It is an official document(s) signifying agreement between the accused person, the surety and the Court that the surety will guarantee by deposit of a security of an amount fixed by Court and the accused person’s attendance in Court until determination of the case. If the accused person absconds and does not complete trial process, the surety will surrender to Court the security deposited and the Court will realize the same and forfeit the proceeds to the State.

·       Surety: It is a person who undertakes to ensure that an accused person will appear in Court and abide by bail conditions. The surety puts up security, such as money or title to a property, which can be forfeited to the Court if the accused person fails to appear in Court.

·       Recognizance: It is a bond by which a person undertakes before a Court or Magistrate to observe some condition, especially to appear when summoned.

·       Security: It is a sum of money pledged in exchange for the release of an arrested or accused person as a guarantee of that person’s appearance for trial proceedings.

3.                   THE LEGAL FRAMEWORK ON BAIL AND BOND:

The existing law on bail and bond (presumption of innocence) is derived from:

a)       The International instruments: For instance, Art.62, the Charter of the United Nations, 1945; Art.1, the Universal Declaration of Human Rights, 1948; Art.9(3), the International Covenant on Civil and Political Rights, 1966; the International Covenant on Economic, Social and Cultural Rights, 1966; and Art.7(1)(b), the African Charter on Human and Peoples’ Rights, 1981.

b)       The Constitution of Kenya, 2010: The provisions, inter alia, include:

i.         Preamble: “Recognizing the aspirations of all Kenyans for a government based on essential values of human rights, equality, freedom, democracy, social justice and the rule of law.”

ii.       Supremacy of the Constitution: Art 2(4): Any law …. that is inconsistent with the Constitution is void to the extent of the inconsistency; any act or omission in contravention of the Constitution is invalid.

¹ Gary S. and Cavendish D. K., The English Legal System 445-450, 6^th edn., (2003).

Article 2 (5): The general rules of international law shall form part of the law of Kenya.

Article 2 (6): Any Treaty or Convention ratified by Kenya shall form part of the law of Kenya under the Constitution.

iii.     Chapter 4, Bill of rights: Art.19: Rights and fundamental freedoms: The purpose of recognising and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realisation of the potential of all human beings. The rights and fundamental freedoms in the Bill of Rights belong to each individual and are not granted by the State.

Art.20: Application of the bill of rights: Every person shall enjoy the rights and fundamental freedoms in the Bill of Rights to the greatest extent consistent with the nature of the right or fundamental freedom.

Art.21: Implementation of rights and fundamental freedoms: It is a fundamental duty of the State and every State organ to observe, respect, protect, promote and fulfill the rights and fundamental freedoms in the Bill of Rights.

Art.22: Enforcement of the bill of rights: Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.

Art. 49(1)(h): Rights of arrested persons: An arrested person has a right to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released. Art.49(2): A person shall not be remanded in custody for an offence if the offence is punishable by a fine only or by imprisonment for not more than six months.

Art.50(2)(a): Fair hearing: Every accused person has the right to a fair trial, which includes the right to be presumed innocent until the contrary is proved.

Sixth Schedule, Part 2, Art.7: Existing laws: All law in force immediately before the effective date continues in force and shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with the Constitution.

c)       The Statutes: They, inter alia, include:

i.         The Judicature Act, Cap 8: Sources of law.

ii.       The Children Act, 2001: Section 185(4) empowers Courts to grant bail to child offenders pending their appearance before a children’s Court.

iii.     The Prevention of Terrorism Act, 2012: Section 35 provides that the rights of an arrested person specified under Article 49(1)(f)² of the Constitution may be limited only for purposes of ensuring: a) the protection of the suspect or any witness; b) the suspect avails himself for examination, or trial, or does not interfere with the investigations; c) the prevention of the commission of an offence stated under the Act and for the preservation of national security.

iv.      The National Police Service Act, 2011: Section 53 provides that a Police Officer investigating an alleged offence (not being an offence against discipline) may require any person to execute a bond in

such sum and in such form as may be required, subject to the condition that the person shall duly attend Court if and when required to do so. However, this power is to be exercised in strict accordance with the Criminal Procedure Code, Cap 75.³

v.       The Evidence Act, Cap 80: Types of evidence, collection and presentation of evidence.

vi.      The Penal Code, Cap 63: Describes offences under the criminal justice system.

vii.    The Criminal Procedure Code, Cap 75: Section 123: Bail in certain cases: The Section which is yet to be amended to be in line with Art. 49(1)(h) provides that when a person (other than a person accused of murder, treason, robbery with violence, attempted robbery with violence and any drug related offence) is arrested or detained without warrant by an Officer in Charge of a Police Station, or is brought before a Court, and is prepared at any time while in the custody of that officer or at any stage of the proceedings before that Court to give bail, that person may be admitted to bail, provided that the officer or Court may, instead of taking bail from the person, release him on his executing a bond without sureties for his appearance. The amount of bail is fixed with due regard to the circumstances of the case, and cannot be excessive. The High Court may direct that an accused person be admitted to bail, or that bail required by a Subordinate Court or Police Officer be reduced.

Section 124: Bail bond: Before a person is released on bail, or ‘on his own recognizance,’⁴ a bond for such sum as the Court or Police Officer thinks sufficient must be executed by the person, and after release, by one or more sufficient sureties, s/he must be conditioned to attend at the time and place mentioned in the bond until otherwise directed by the Court or Police Officer.

d)       The Court practices: These are precedents.

4.                   BAILABLE AND NON-BAILABLE OFFENCES:

·       The question of bail is often a very emotive one especially where the persons seeking or obtaining it is facing capital charges. The public generally is overwhelmingly weighted against an accused person walking and mingling freely after being granted bail on a capital offence.

·       Section 72(5) of the repealed Constitution provided that a person arrested and brought to Court charged with a criminal offence and not tried within reasonable time shall, “unless he is charged with an offence punishable by death, be released either unconditionally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that he appears at a later date for trial.”

·       On its part, Section 123(1) of CrPC (see above) which is yet to be amended, reflected the provisions of Section 72(5) of the repealed Constitution. As such, persons convicted of murder, treason, robbery with violence or attempted robbery with violence could not be granted bail.

·       In Republic v. Margaret Magiri Ngui and Another,⁵ the applicant was charged, inter alia, with robbery with violence - a capital offence. While in custody she suffered severe ulcers and high blood pressure. She applied for bail in the High Court and she was refused. She thereafter applied to the same Court as a constitutional Court for the reading of Section 123 of CrPC which conflicted with the Constitution in

³ S.53(3), the National Police Service Act, 2011.

⁴ A ‘Release on Own Recognizance’ (ROR), also known as an ‘Own Recognizance’ or ‘Personal Recognizance,’ is a written promise signed by the defendant promising that s/he will show up for future Court appearances and not engage in illegal activity while out on an ROR.

regard to the provisions of bail. Whereas Section 72(5) of the Constitution, as it then stood, allowed bail generally to persons charged with any offence, Section 123 of the CrPC denied bail for capital offences. The Court refused to release the applicant on bail and held that bail should not be granted where the offences charged carry a mandatory death penalty because the temptation to abscond in such cases is very high. After the ruling, the Constitution was amended to deprive Courts the power to release persons charged with capital offences.⁶ Thus, the repealed Constitution read together with the current CrPC had similar provisions denying bail for capital offences.

·       The new Constitution of Kenya, 2010, however, the legal position on bail has reverted to the pre- Margaret Magiri Ngui state. Article 49(1)(h) of the Constitution entitles all persons arrested with the right to be released on bond or bail pending charge or trial. The terms of the bond or bail are to be reasonable without distinction between bailable and non-bailable offences. Inevitably, this provision has also attracted contestation in the Courts. In the first known such case, Republic v. Taiko Kitende Muinya,⁷ the accused who was charged with murder, applied to be admitted to bail. He had absconded from home for about two months. The High Court held that:

Under the new Constitution, there was no longer a category of offences characterized as non-bailable. The right of an accused person to be released on bail, although a constitutional right, was not absolute. The Court may decline to release him in appropriate cases and the appropriateness or otherwise is no longer pre-determined by Statute, as was the case before the promulgation of the new Constitution, when all persons charged with offences attracting death sentences could not be granted bail or bond pending trial. There were compelling reasons to warrant the accused being deprived of his liberty pending trial, namely, seriousness of the offence and the gravity of the sentence (which may incline the accused to abscond), the relationship between the accused and potential witnesses (his influence over whom might cause him to interfere with them) and his antecedents or prior conduct (in this case his previous two-month flight).

·      
Republic v. Danson Mgunya and Another,⁸ is the first case where bail was granted to suspects facing murder charges. Exercising their right under the new Constitution, the accused applied for bail. They were elderly members of the society, married and with children. They had fixed abodes and their places of residence were known. The first accused was an administration officer and the second was a chief. The State opposed the application for bail contending, inter alia, that due to the severity of the sentence there was a high possibility of flight or absconding. Moreover, the case had proceeded expeditiously and was about to be concluded, the evidence adduced was hard and incriminating. The State also contended that there should be no discrimination on the ground that the applicants were public servants and that there must be equality in the eyes of the law. In making its ruling, the Court found that there were no compelling reasons to continue with the detention of the accused and it did not matter that the trial was coming to an end with three witnesses remaining. The Applicants were then released on a bond of Ksh.3,000,000 each with two sureties each for like amount.

⁶ Act No. 20 of 1987.

⁷ High Court Criminal Case No 65 of 2010 (Unreported).

·       Bail is fixed with due regard to the circumstances of each case and should not be excessive: or it would defeat the purpose of the bail itself. In the case of Republic v. Patrick Irungu Maina,⁹ the accused had been admitted by a Magistrate’s Court to a bail of Ksh.150,000 for the offence of obtaining money by false pretence, which attracted a maximum penalty of three years imprisonment. The High Court found that the amount was excessive considering that the total amount alleged to have been obtained by the applicant was Ksh.98,000.

·       Withholding bail: In Republic v. Jamal Din,¹⁰ it was held that withholding bail by the Court is wrong. When an accused person appears in Court for his hearing, he is entitled to have his bail money returned to him.

5.                   CLASSIFICATION OF BAIL:

Bail may be classified into three:

a)            Anticipatory bail/ Bail pending arrest: It is an order to admit a person to bail issued before the person is arrested. It is bail in anticipation of arrest. Any person who suspects that he is about to be arrested on false or trumped-up charges, due to personal or political enmity or vendetta with someone, or who fears that a false case is likely to be built up against him, may move to Court for grant of bail in the event of his arrest and the Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail. In essence, the applicant invites the Court to arrest him and release him on bail and thereby pre-empt an apprehended oppressive apprehension in the hands of the police.

The right to anticipatory bail, under the new Constitution: can be located at Article 22 which gives every person the right to institute Court proceedings claiming that a right or fundamental freedom has been denied, violated or threatened. Besides, under Article 23(3), the High Court has power to grant appropriate relief. As such, anticipatory bail may not be viewed as one of the conservatory orders specifically mentioned in Article 23(3) but the list of what constitutes appropriate relief is not exhaustive so there is nothing to bar the Court from granting it.

Immunity: The grant of anticipatory bail does not give a person immunity from appearing before the police or any authority who would wish to question him in connection with the commission of a certain offence. He would still be required to report to the police and co- operate with the law enforcement agencies as they conduct the investigations, but safe from arrest.

Conditions that may be imposed by the Court before granting anticipatory bail: The person shall:

i.         make himself available for interrogation by the Police Officer as and when required;

ii.       not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any Police Officer;

iii.     not leave jurisdiction without the prior permission of the Court;

iv.      show, by disclosing facts and events that he has reason to believe that he may be arrested for a bailable offence(s) so that the Court may specify the offence(s) in respect of which the order will be effective.

 

⁹ (2006) eKLR: Miscellaneous Application No. 27 of 2006.

¹⁰ 12 EACA 75.

The Court may cancel or direct that any person who has been released on bail be arrested and committed to custody on an application moved by the complainant or the prosecution.

b)            Bail pending trial/ Pre-trial bail: Bail pending trial may be granted by the:

i.         Police at the Police Station: The Constitution and the CrPC provide that reasonable bond or bail can be granted to a person who is arrested and is at the Police Station.¹¹ The Officer-in-Charge of the Police Station exercises this power where it is impracticable to produce the person arrested before court within reasonable time. The release may be upon the person arrested executing a bond of a reasonable amount, with or without sureties, to appear at a specific time and specific Court. In Republic v. Hussen,¹² the Court held that the OCS is required to inquire into the case before he exercises his discretion to release the person on bail. He may release the accused if in his opinion there is insufficient evidence to proceed with the charge. If a person is arrested on a warrant, the warrant will state whether he is to be held in custody or released on bail.¹³

ii.       Court: The Court can grant bail post-charge and prior to conviction.¹⁴ In certain cases post-conviction, where a Court adjourns the case, whether for a week or a month, in preparation of post-sentencing reports, it has to decide whether the accused person should be released on bail or remanded in custody.¹⁵ The High Court may, whether or not a person has been committed for trial, direct that the person be admitted to bail with or without sureties. It may also reduce the bail directed by a Subordinate Court or Police Officer.¹⁶ Where the prosecution objects to the accused person being granted bail, the Court will invite both the prosecution and the defence to make submissions on the matter. The Magistrate, after hearing the prosecution’s objection and any counter objections, will then give his decision. In Republic v. George Kamau Ng’ang’a,¹⁷ it was argued that the release of the co- accused on bail leaving the applicant was discriminatory and could not be justified in law. The Court rejected the contention holding that, a case may have two or more accused persons yet the Court may grant bail to some and refuse to others, without being in breach of any constitutional provisions. This must be so considering that the propensity to abscond is to be determined by individual circumstances.

c)            Bail pending appeal: This bail, unlike the two above, does not exist as of right and is issued only in exceptional circumstances.¹⁸ The principles governing bail pending appeal are different from those governing bail pending trial. In the application for ‘bail pending trial,’ the presumption of innocence casts the burden on the prosecution to show why the accused person should not be granted bail while, in an application for ‘bail pending appeal,’ the presumption of innocence is not operative. The Courts have held that the presumption is that the accused was properly convicted and the burden is on him to show why he should get bail pending appeal.¹⁹ Moreover, an application for ‘bail pending appeal’ can only be made in

¹¹ See, Art.49(1)(h), the Constitution of Kenya, 2010 and S.123(1), the Criminal Procedure Code, Cap 75.

¹² (1990) KLR 425.

¹³ S.103(1), the Criminal Procedure Code, Cap 75.

¹⁴ S.123, the Criminal Procedure Code, Cap 75. ¹⁵ S.357, the Criminal Procedure Code, Cap 75. ¹⁶ S.123, the Criminal Procedure Code, Cap 75.

¹⁷ High Court Miscellaneous Criminal Application No. 61 of 1981.

¹⁸ Republic v. Abdi, (1991) KLR 171.

¹⁹ Republic v. Daniel Dominic Karanja, (1986) KLR 612.

respect of an offence which was originally bailable.²⁰ The CrPC provides that the High Court or Subordinate Court which has convicted or sentenced a person, may grant bail or may stay execution on a sentence or order pending the entering of an appeal, on such terms as to security for the payment of money or the performance or non-performance of any act, or the suffering of any punishment ordered by, or in the sentence or order as may seem reasonable to the High Court or the subordinate court.²¹ Besides, where an application for ‘bail pending appeal’ is made in the Court which convicted or sentenced the accused, the Court should not feel inhibited to consider the application merely because it has convicted the accused. It should consider the application for bail pending appeal on its own merits and rule on the same without being unduly trammeled by the fact of conviction.

The main consideration for bail pending an appeal is that the applicant must show overwhelming chances of the appeal succeeding. Other secondary considerations include the medical condition of the applicant, the nature of the offence, the sentence imposed and the likely delay in the preparation of the appeal record and the hearing of the same.²² If that be so, there will be no justification for depriving the applicant his freedom.

6.                   WAYS IN WHICH THE COURT MAY GRANT BAIL:

There are three ways in which the court can grant bail:

a)       Cash bail: Cash is deposited with Court and a receipt obtained. The Court will record that cash bail is granted and in addition, it will indicate the mention date and the date for hearing.   If it is within 14 days, one does not need a mention day, but if is more than 14 days there must be a mention date.

b)       Bond: It can be granted as free bond. The accused is released on their own bond after signing a document which indicates an amount e.g., Ksh.5000. In the event that the accused fails to turn up in the Court, the amount is forfeited. If s/he eventually shows up, s/he is required to give reasons for failure to show up. In USA, they have an institution of Bondsmen who can sign bonds for accused with the responsibility of ensuring that the accused people show up in Court. If the accused disappears, the bondsmen are required to forfeit the money.

c)       Bond and surety: Surety proceedings: the following is the procedure:

i.         In addition to bond, an accused or his next of kin is required to provide a suitable surety or sureties before grant of bail:²³ One must have a Kenyan surety so that the likelihood of absconding is minimized. The number of sureties to be produced is discretionary upon the Court.

ii.       The surety is brought before the Court for examination before admitting him/her as sufficient/suitable surety to secure the release of a person in custody. This is to ensure that the surety understands his/her obligation to the Court and his/her responsibility towards the accused person, i.e., attendance of Court proceedings. This apart, the surety would be needed to appear before Court and give evidence on oath, confirming, inter alia, his/her financial resources, character, including any previous convictions and relationship and proximity to the accused.

²⁰ Republic v. Daniel Dominic Karanja, (1986) KLR 612.

²¹ S.356(1), the Criminal Procedure Code, Cap 75.

²² Republic v. Nathan Browne Birundu, High Court Criminal Application No. 896 of 2001.

²³ S.124, the Criminal Procedure Code, Cap 75.

iii.     A surety needs to appear in Court with documents of title to the property being offered as security.²⁴ The same should be in the name of the surety and accompanied by a recent search at the relevant registry confirming the surety as the registered proprietor.²⁵ S/he should also have a valuation report from a reputable valuator confirming that the property has a value sufficient to cover the security. Security i.e., titles, payslips, share certificate, logbooks etc., is then deposited with Court.

iv.      The prosecutor is given a chance to cross-examine and object to the surety given. The prosecution is also to cross-check any details that they supply to the Court, i.e., place of residence, nature of the relationship that exists between surety and accused, employment, his capacity and authenticity of any documents produced. Essentially if the prosecutor does not raise objection, the Court is expected to grant bail.

v.       After examination, the Court has power to reject a surety.

vi.      Where the surety agrees to the terms, s/he is required to sign documents binding him/herself to a certain amount of money that s/he is prepared to forfeit to the State should the accused abscond.

vii.    Discharge of sureties: A person may apply to the Magistrate to discharge a surety, or a surety may apply, at any time, to be discharged from his duty due to: a) suspicion of the accused person wanting to abscond or due to misunderstanding between the accused person and himself,²⁶ b) personal reasons, i.e., where he may wish to free the property deposited as security for his other purposes. There is no requirement for a surety to furnish the Court with reasons.

Where there is reasonable suspicion that the accused person is about to abscond by leaving Kenya, the person holding the suspicion is required to swear an affidavit after which a warrant of arrest is issued against the accused. The accused is then committed to prison until trial unless the Court sees it fit to admit him to bail upon further recognizance.²⁷

In practice, applications for discharge are made during mention dates when the accused is present. Where the accused is absent, a warrant of arrest may be issued to require attendance.

viii.  Death of surety: Where a surety to a bond dies before the bond is forfeited, his estate shall be discharged from all liability in respect of the bond, but the accused may be required to find a new surety.²⁸ He may be kept in custody until he does so.

ix.      Forfeiture of recognizance: The procedure for forfeiture is: Where it is proved that an accused person has absconded, a warrant of arrest is issued against the accused and a summons to the surety. In practice, the surety will be given time to look for the accused and it is only where he fails to do so that the forfeiture will ensue. The Court will issue a notice to surety to pay his penalty or to show cause why he should not pay.²⁹ If sufficient cause is not shown and the penalty is not paid, the Court may issue a warrant of attachment of sale of the moveable property belonging to the surety, or his estate if

²⁴ The reasons why Courts require securities is when the accused absconds, it may be difficult to recover money from an accused but where the securities are available the State can recover what the accused is meant to have forfeited.

²⁵ For instance, if it is a logbook, a search must be done with the Motor Vehicle Department and official communication must come from the Registrar of Motor Vehicles confirming particulars of the logbook.

²⁶ S.128, the Criminal Procedure Code, Cap 75. ²⁷ S.130, the Criminal Procedure Code, Cap 75. ²⁸ S.129, the Criminal Procedure Code, Cap 75.

²⁹ S.131(1), the Criminal Procedure Code, Cap 75. See, Republic v. Benjamin Munyao Nzioka, [2004] eKLR: Criminal Appeal 74 of 2004.

he is dead.³⁰ If the penalty cannot be recovered by attachment of sale, the Court will order the imprisonment of such surety for a term not exceeding six months.³¹ The Court may, at its discretion, remit a portion of the penalty mentioned and enforce payment in part only of the amount of recognizance for which one had stood surety.³² All orders made by a Magistrate respecting the forfeiture of recognizance are amenable to appeal to the High Court, which may also exercise its revision jurisdiction over the same as of right.³³

The Court must follow rules of natural justice before ordering for forfeiture. There are Courts that when the accused person is called and does not respond, they issue a warrant of arrest. There is need to verify since some accused persons have good reasons for failure to attend Court proceedings and if an order of forfeiture is made, injustice will be mated. It is important to note that once an order for forfeiture is made the Magistrate cannot recall it. There can only be an appeal.

7.                   FACTORS TO BE CONSIDERED BEFORE BAIL IS GRANTED:

The grounds or factors that a Court will consider when determining the question of pre-trial bail can be summarised as follows:

a)       Likelihood of appearance at the trial: This is the main factor because if the accused is not able to attend trial, bail will subvert the administration of justice. In Republic v. Selwyn and 5 Others,³⁴ the Court held that the test to govern the discretion of the Court in deciding whether to grant or refuse bail is the probability of the accused appearing to stand his trial. In applying the test, the Court will not look to the character or behaviour of the accused at any particular time, but will be guided by the nature of the crime, severity of the punishment imposed and the probability of a conviction.

b)      Accused’s standing in the society: The Court will consider what sort of person the accused is in the society, if a citizen or non-citizen, immigrant, etc. The Court may also consider the special circumstances of the accused e.g., illness which may be aggravated by incarceration. If accused is a non-resident and he faces a serious charge, there is a chance that he will be tempted to flee. The Court may order the accused to produce sureties before the application for bail is granted. The Court must however determine whether the sureties are people being bought by a non-resident who will leave them money to pay up should they be ordered to forfeit the recognizance after the accused absconds.

c)       Likelihood of interference with investigations: This is especially so where the investigations may be incomplete by the time the accused is presented in Court and particularly necessitated by the complex nature of the case. The accused may conceal, destroy or tamper with the evidence.

d)      Likelihood of interfering with witnesses: An accused person who is in a position to interfere with witnesses whether by violence, elimination, threats, intimidation or even bribery with the intention of making the witnesses not turn up, or testify, or alter their testimony, may be denied bail.

e)      
Nature of the offence the accused is charged with: Although the COK does not cite the seriousness of the offence with which an accused is charged as a factor, it is undoubtedly a relevant factor. The more

³⁰ S.131(2), the Criminal Procedure Code, Cap 75. ³¹ S.131(4), the Criminal Procedure Code, Cap 75. ³² S.131(5), the Criminal Procedure Code, Cap 75. ³³ S.132, the Criminal Procedure Code, Cap 75.

³⁴ (1952) KLR 16. See, Republic v. Joseph Wambua Mutunga and Others, Criminal Case No. 23 of 2008.

serious the charge, including the heavier the sentence, the more likely it is that the accused will abscond and not attend trial and the more likely it is that he will be denied bail.

f)        Likelihood of commission of more offences: It is difficult to tell whether the accused is likely to commit any other offence while on bail. But, where a person is on bail and is charged with another offence alleged to have been committed when on bail, the Court may refuse to grant bail.

g)       The length of the remand period: The longer it will take before the trial ends, the more reason to grant bail. The Court may also consider delays either by the prosecution or by the defence. Unnecessary delay by prosecution may result in grant of bail in cases where the Court would otherwise not grant bail. At the same time, delaying tactics by the defence (i.e., seeking unnecessary adjournments) may also lead to cancellation of bail to have the case proceed with expediency.³⁵

h)      Safety or security of the accused: An accused person may be denied bail if the Court is satisfied that he poses a danger to himself especially where he is charged with an offence that excites considerable public revulsion such as child/sexual abuse or pedophilia and murder. It may also be in the best interest of a suspect to be denied bail and kept in safe and protective custody if he is a child or a young person without a family.

i)        The accused is serving a custodial sentence: An accused person who is already serving a custodial sentence for another offence cannot expect to be granted bail in connection with new matters. Once the prior custodial sentence is served, there is no bar to making of an application for bail in the current case.

j)        Breach of bail terms: Where, having been previously released on bail in connection with the same offence, an accused person absconds or otherwise breaches or violates the terms and conditions upon which the bail had been granted, he would not be eligible for bail.

k)      The economic circumstances of the offender: Section 127 of CrPC provides that where through mistake, fraud or otherwise, insufficient bail terms or sureties have been accepted, or if they afterwards become insufficient i.e., through additional of more serious charges, the Court may require the accused to find sufficient sureties failure of which he may be remanded in custody.

l)        Relative strength of prosecution case: If the trial Court is of the opinion that the prosecution case is not promising, it may grant bail but this is entirely at the discretion of the Court. Equally, if the Court is of the opinion that, in view of the evidence produced, the accused may be tempted to abscond, the Court may cancel bail.

m)     Paucity of information: The accused may not be granted bail where the Court is not served with sufficient information to enable it make a decision in relation to bail.³⁶ For instance, where the police have charged a suspect but still have insufficient details as to his identity and address, the Court cannot grant bail.

n)     
The circumstances out of which the charge had arisen: The Court is entitled to look at the totality of the circumstances out of which the charges facing the accused arose. Thus, in Republic v. Wainaina,³⁷ the accused was charged with various offences arising out of circumstances surrounding the death of a Kenyan Government Minister. He allegedly attempted to take advantage of the death to make personal pecuniary

³⁵ Republic v. Muturi Kigano.

³⁶ Republic v. John Kahindi Karisa and Others, HC Criminal Case No. 23 of 2010

³⁷ (1990) KLR 332.

gains. He even attempted to bribe a Police Officer. The High Court held that Magistrates are entitled to take into account the circumstances out of which the charges arose and weigh them in deciding whether or not the applicant should be granted bail.

o)       Antecedent character of the accused: In some jurisdiction this is taken into consideration. However in Kenya, the Courts do not have access to previous records of the accused. Therefore they can only consider situations where the accused had previously absconded or abused bail terms.

p)      Deposit in lieu of recognizance: The Court may require a person to execute a bond, or deposit money, or some property as a condition for his release.³⁸ When such a person does so, he essentially promises the Court that he will appear in Court when required. He may however, be required, in addition to, or instead of executing the bond, to deposit a sum of money determined by the Court. When money is deposited by the accused person or by some other person on his behalf, it is referred to as cash bail.

q)      Whether accused person is gainfully employed. The Courts also consider the fact that an accused person is gainfully employed to enhance the likelihood that he or she will attend trial.

r)       Public order, peace or security. The Courts will also consider whether the release of an accused person will disturb public order or undermine public peace or security.³⁹

s)        Others as cited in Republic v. John Kahindi Karisa and Another⁴⁰:

i.         Previous criminal record of the accused, if any.

ii.       Strength of the evidence which supports the charge.

iii.     The gravity of the punishment in the event of conviction.

iv.      The likelihood of further charges being brought against the accused.

v.       The probability of guilt.

 

 

THE TRIAL PROCESS

1.                   The trial process is the convergence of processes that include: a) formal complaint, b) investigations, c) compilation and presentation of evidence, and d) dispute resolution.

2.                   APPEARANCE OF PARTIES:

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

·       Complainant: Where the complainant,⁴¹ having had notice of the time and place appointed for the hearing of the charge does not appear, the Court acquits the accused, unless for some reason it thinks it proper to adjourn the hearing of the case until some other date, upon such terms as it thinks fit. The Court may release the accused person on bail, or remand him in prison, or take security for his appearance as it thinks fit.⁴²

³⁸ S.126, the Criminal Procedure Code, Cap 75.

³⁹ Republic v. Pascal Ochieng Lawrence, (2014) eKLR.

⁴⁰ HC Criminal Case No. 23 of 2010. See, Alhaji Mujahid Dukubo Asari v. Federal Republic of Nigeria, SC 20A/2006.

⁴¹ In Republic v. Mwaura Ikego and another, (1979) KLR 209, it was held that the term complainant under Section 202 of the Criminal Procedure Code, Cap 75 includes the Prosecutor.

⁴² S.202, the Criminal Procedure Code, Cap 75.

·       Witnesses: They are also required to appear in Court as and when required. In Attorney General v. Shimanyula,⁴³ Bosire J. held that once a Court decides to proceed with a matter on the hearing date, it cannot proceed to acquit an accused under Section 202 of the CrPC because witnesses did not turn up. Rather, it must ask the prosecutor to tender evidence in support of the charge, and to proceed to acquit the accused if he fails to tender any evidence in support of the charges as provided in Section 210 of the Code.

·       Appearance of both parties: If at the time appointed for the hearing of the case, both the complainant and the accused person appear before the Court, or if the complainant appears and the personal attendance of the accused person has been dispensed with under Section 99 of CrPC, the court shall proceed to hear the case.⁴⁴

3.                   ADJOURNMENTS:

·       Who is eligible: The right to adjournment is available to both the ‘prosecution’ and the ‘defence.’ Neither the prosecution nor the defence however is entitled to indefinite adjournments, as this would undermine the right to trial within a reasonable time and would be contrary to the public interest.

·       Legal basis for adjourning: From the point of view of the defence, the legal basis for adjourning the proceedings is the Constitution which guarantees the accused “adequate time and facilities for the preparation of his defence.⁴⁵ The Court therefore has to balance the right to adequate time for preparation of the defence on the one hand and the necessity of a timely trial, on the other.

·       When to adjourn: The Court may, before or during the hearing of a case, adjourn the hearing of a case to a certain time and place.⁴⁶ Any such time and place must be appointed and stated in the presence and hearing of the parties or their respective advocates. Where a case has been adjourned to a date agreed upon between the parties, the hearing date ought not to be altered without the involvement and consent of all the parties.⁴⁷

·       Period of adjournment: The adjournment must not be for more than 30 days, or, if the accused person has been committed to prison, no more than 15 days.⁴⁸

·       Adjournment a discretion: Section 205 of the CrPC confers a judicial discretion on the Court to grant or refuse an adjournment. This discretion has to be exercised judicially depending on the circumstances of each case. In Republic v. Mugema.⁴⁹ the accused applied for an adjournment at the close of prosecution case because the advocate he had engaged had not turned up in Court. The trial Court ruled that the accused had not informed it at the commencement of the trial of his intention to be represented by an advocate and that he had a proper opportunity to cross examine the prosecution witnesses. The Court accordingly directed him to give his defence, which he did. On appeal, it was held that the appellant had taken proper steps to engage an advocate but through no fault of his, the advocate had not appeared. In the circumstances, the appellant ought to have been allowed an adjournment to enable him have an advocate represent him.

⁴³ (1990) KLR 157.

⁴⁴ S.203, the Criminal Procedure Code, Cap 75.

⁴⁵ Art.50(2)(c), the Constitution of Kenya, 2010.

⁴⁶ S.205(1), the Criminal Procedure Code, Cap 75.

⁴⁷ Republic v. Ruhi, (1985) KLR 373.

⁴⁸ S.205(1), the Criminal Procedure Code, Cap 75.

⁴⁹ (1967) EA 676.

·       Non-appearance of parties after adjournment: Section 206 of the CrPC provides that if, at the time or place to which the hearing or further hearing is adjourned, the accused person does not appear before the Court which made the order of adjournment, the Court may, unless the accused person is charged with felony, proceed with the hearing as if the accused was present, and if the complainant does not appear, the Court may dismiss the charge with or without costs. However, where the accused person is convicted in his absence, the Court may set aside the conviction upon being satisfied that his absence was from causes over which he had no control, and that he had a probable defence on the merits. Where the accused person who has not appeared is charged with a felony, or if the Court refrains from convicting the accused in his absence, the Court shall issue a warrant for the arrest of the accused and cause him to be brought before the Court.

4.                   CASE FOR THE PROSECUTION:

·       When both parties are present and the trial commences, the prosecutor opens the case against the accused person before proceeding to call witnesses and adduce evidence in support of the charge.⁵⁰ The prosecution starts because it is the one that bears the onus of proof. Even in instances where a Statute casts the burden of proof on the accused person, the Republic must first lay some factual basis by calling witnesses before the burden of proof shifts to the accused person.⁵¹

·       The opening of the case takes the form of a brief address by the prosecutor in which he provides an outline of and a guide to the case as well as presents a summary of the facts and theory of the prosecution case.

·       After the opening address, the prosecution calls its witnesses in sequence usually beginning with the complainant and concluding with the Investigating Officer. The prosecutor determines the order in which witnesses are to appear before the Court.⁵² It is not necessary for the prosecution to call a multiplicity of witnesses, some of whom may be merely cumulative and repetitive. It is enough to call such number as are sufficient to prove its case. Where, however, the prosecution fails to call a material witness without any apparent reason, the Court is entitled to presume or infer that the evidence which that witness would have given would, if produced, be unfavourable or adverse to that party as was pointed out in Bukenya v. Uganda.⁵³

·       Each witness called is first sworn or affirmed and then led in testimony by the prosecutor. Thereafter, the witness is subjected to cross-examination by the accused person or his advocate before being re-examined by the prosecutor,⁵⁴ where necessary.⁵⁵

5.                   MODE OF TAKING AND RECORDING EVIDENCE:

·       Section 197(1) of the CrPC provides that the evidence of each witness is taken down in writing or on a typewriter in the language of the Court by the Magistrate, or in his presence and hearing and under his personal direction and superintendence. It must be signed by the Magistrate and it forms part of the record.

 

⁵⁰ S.300, the Criminal Procedure Code, Cap 75.

⁵¹ Republic v. Prabulal, (1971) EA 52.

⁵² Republic v. Roy Richard Elirema and Another, CA Criminal Appeal No 67 of 2002.

⁵³ [(972) EA 549. See, Republic v. Nguku, (1985) KLR 412; Republic v. Mwangi, (1984) KLR 595.

⁵⁴ S.302, the Criminal Procedure Code, Cap 75.

⁵⁵ See, Nzivo v. Republic, (2005) 1 KLR 699.

Such evidence is taken down in narrative form,⁵⁶ but the Magistrate may take down or cause to be taken down any particular question and answer.

·       A record of any proceedings at a trial before a Magistrate may be taken in shorthand if the Magistrate so directs; and a transcript of the shorthand shall be made if the Magistrate so orders, and the transcript shall form part of the record.⁵⁷

·       If a witness asks that his evidence be read over to him, the Magistrate shall cause that evidence to be read over to him in a language which he understands.⁵⁸

·       Whenever any evidence is given in a language not understood by the accused, and he is present in person, it must be interpreted to him in open Court in a language which he understands.⁵⁹ If he appears by advocate and the evidence is given in a language which is not understood by the advocate, it must be interpreted to him in English.⁶⁰

·       When documents are put in for the purpose of formal proof, it is in the discretion of the Court to interpret as much of them as appears necessary.⁶¹

·       When a Magistrate has recorded the evidence of a witness, he may also record such remarks as he thinks material respecting the demeanour of such witness whilst under examination.⁶² However, such remarks should not be taken in isolation or given undue or prejudicial weight. In Republic v. Byamungu s/o Rusiliba,⁶³ it was held that an impression as to the demeanour of a witness ought not to be made without testing it against the whole evidence in question.

6.                   CLOSE OF PROSECUTION CASE:

·       Once the prosecution has called all the witnesses and tendered all the evidence, it closes its case whereupon the Court has to determine whether a prima facie case⁶⁴ has been established but if it closes its case prematurely, for e.g., due to refusal of an adjournment to call for further witnesses, it is desirable to note the fact on record.

·       If, after considering the arguments and submissions (closing arguments),⁶⁵ the Court finds that the prosecution has not made a prima facie case against the accused to require that he be put on his defence, the Court makes a finding of not guilty, dismisses the case and acquits the accused person.⁶⁶ That determination is a judgment in law, hence it must be in writing and must state the points of decision and the reasons therefor.⁶⁷

 

⁵⁶ It should not be in question and answer form.

⁵⁷ S.197(2), the Criminal Procedure Code, Cap 75.

⁵⁸ S.197(3), the Criminal Procedure Code, Cap 75. The language of the High Court is English, and the language of a Subordinate Court is English or Swahili as per S.198(4).

⁵⁹ S.198(1), the Criminal Procedure Code, Cap 75. ⁶⁰ S.198(2), the Criminal Procedure Code, Cap 75. ⁶¹ S.198(3), the Criminal Procedure Code, Cap 75. ⁶² S.199, the Criminal Procedure Code, Cap 75.

⁶³ (1951) 18 EACA 233. See, Republic v. Musau, (1980) KLR 54.

⁶⁴ In Republic v. Ramanlal Bhatt, (1937) EA, the former Court of Appeal of East Africa held that a prima facie case is one which a reasonable tribunal, properly directing its mind to the law and the evidence would convict if no explanation is given by the defence.

⁶⁵ Submissions contain a summary of the evidence on record, the law that is relevant to the case, the ingredients of the charge(s) and what each party prays the court to do.

⁶⁶ S.210, the Criminal Procedure Code, Cap 75.

⁶⁷ Republic v. Amirali, (1971) E. A. 116.

·       In Republic v. Wanjiku,⁶⁸ the High Court held that failure of the Court to make a ruling on whether or not an accused person has a case to answer at the close of the prosecution case is an incurable defect.

·       If the Court finds that a prima facie case has been made out against the accused person sufficiently to require him or her to make a defence, the stage is set for the hearing of the defence case.⁶⁹ This determination, unlike the one of no case to answer, which must be elaborate in setting out the reasons for the accused person’s acquittal, is usually expressed in a single sentence. This is to avoid the appearance of having made a determination of guilty while at the same time inviting the accused to tender his defence.

7.                   CASE FOR THE DEFENCE:

·       Once the Court determines that a prima facie case has been established, it must, one more time, explain the substance of the charge to the accused person and:

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

b)       inform him of his alternative right to make an unsworn statement from the dock;

c)       ask him whether he has any witness to examine or other evidence to adduce in his defence;

d)       remind him that he is under no obligation to say anything.⁷⁰

·       Where the accused opts to give an unsworn statement, his or her statement is recorded in full by the Court and should not be cut short. The accused must be freely allowed to make his or her defence.⁷¹ Moreover, the Court cannot prompt the accused person to either add or subtract from an unsworn statement.⁷²

·       If the accused person says that he does not intend to give evidence or make an unsworn statement, or to adduce evidence, then the prosecution may sum up the case against the accused person. However, where the accused opts to give evidence or make an unsworn statement, the Court is to call upon him to enter upon his defence.⁷³

·       The accused or his advocate may then open his case, stating the facts or law on which he intends to rely, and make such comments as he thinks necessary on the evidence for the prosecution. Thereafter, accused may give evidence on his own behalf and he or his advocate may examine his witnesses (if any), and after their cross-examination and re-examination (if any) may sum up his case.⁷⁴

·       Where the accused elects to call witnesses, the accused has to give his or her evidence first, followed by the witnesses.⁷⁵ This evidence is subject to the same rules as of the prosecution in examination-in-chief, cross- examination and re-examination.

·       Where the witnesses of the accused are not available in Court at a particular time, the Court may adjourn to allow them appear unless it considers that their absence is due to any fault or neglect of the accused person. The Court may also issue summons to compel the attendance of such witnesses on behalf of the accused.

 

⁶⁸ (2002) 1 KLR 825.

⁶⁹ Bench Book for Magistrates pp 59.

⁷⁰ S.211, the Criminal Procedure Code, Cap 75.

⁷¹ Republic v. Peter Kipkemoi Cheruiyot, CA Criminal Appeal No 131 of 1981. ⁷² Republic v. Augastine Chebon Cheruiyot, CA Criminal Appeal No 16 of 1982. ⁷³ S.306(3), the Criminal Procedure Code, Cap 75.

⁷⁴ S.307(1), the Criminal Procedure Code, Cap 75.

⁷⁵ Republic v. Andiazi and another, (1967) EA 813.

·       Where the only witness to the facts of the case called by the defence is a person charged, he shall be called as a witness immediately after the close of the evidence for the prosecution.⁷⁶

·       If the accused person or his witnesses adduce evidence that introduces a totally new matter that the prosecutor could not, by the exercise of reasonable diligence have foreseen, the Court may allow the prosecutor to adduce evidence in reply thereto. This rebuttal evidence may take the form of recalling witnesses who had previously testified or calling new witnesses altogether and tendering new evidence which is subject to the usual rules as to examination and cross-examination.

8.                   COMPETENCE AND COMPULSION OF WITNESSES:

·       The capacity of a witness to give evidence in a trial is governed by rules of competence⁷⁷ and

compellability.⁷⁸

·       All persons are competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by reason of tender years, extreme old age, disease (whether of body or mind) or any similar cause.⁷⁹

·       If, without sufficient excuse, a witness does not appear in obedience to the summons, the Court, on proof of the proper service of the summons, may issue a warrant to bring him before the Court at the time and place specified.⁸⁰

·       If the Court is satisfied by evidence on oath that the person will not attend unless compelled to do so, it may at once issue a warrant for the arrest and production of the witness before the Court at a time and place specified.⁸¹

·       A witness is not excused from answering any question as to any matter relevant to the fact in issue in a criminal proceeding, upon the ground that the answer to such question may incriminate such witness, or that it will expose such witness to a penalty or forfeiture of any kind. The law deals with such legitimate concerns by providing that no such answer which a witness is compelled to give shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by such answer.⁸²

9.                   SWEARING AND AFFIRMATION:

·       Oath: Every witness in a criminal cause or matter must be examined upon oath, and the Court before which any witness shall appear shall have full power and authority to administer the usual oath.⁸³

·       A witness who submits to the oath has to be sworn on a Holy Book such as a Bible, Koran or Gita. The oath takes the following form: “I . . . do swear that the evidence I shall give to this Court touching the matter in issue, shall be the truth, the whole truth and nothing but the truth. So help me GOD.”

·       Where an oath has been duly administered and taken, the fact that the person to whom it was administered had as the time of taking the oath no religious belief shall not affect the validity of the oath.⁸⁴

 

⁷⁶ S.160, the Criminal Procedure Code, Cap 75.

⁷⁷ Competence is the ability of a person to give evidence in a Court of law.

⁷⁸ A witness is said to be compellable if he is capable of being summoned to Court to give evidence or suffer a form of punishment upon refusal.

⁷⁹ S.125(1), the Evidence Act, Cap 80.

⁸⁰ S.145, the Criminal Procedure Code, Cap 75. ⁸¹ S.146, the Criminal Procedure Code, Cap 75. ⁸² S.128, the Evidence Act, Cap 80.

·       Affirmation: Where a witness objects to being sworn either on the basis of lack of religious belief, or that the taking of an oath is contrary to his or her religious belief, such witness shall be permitted to make a solemn affirmation instead of taking an oath.⁸⁵ The legal effect of affirmation is the same as that of an oath.⁸⁶ Affirmation takes the following form: “I . . . do solemnly, sincerely and truly declare and affirm that the evidence I shall give in this Court, touching the matters in question, shall be the truth, the whole truth and nothing but the truth.”⁸⁷

10.                EXAMINATION:

·       A Court may, at any stage of a trial proceeding, summon or call any person as a witness. It may examine any person in attendance though not summoned as a witness; or recall and re-examine a person already examined if the evidence of such person appears to it essential to the just decision of the case. Where the Court recalls or permits the recall of a witness, then the prosecution or defence has a right to cross-examine any such person and the Court shall adjourn the case for such time (if any) as it thinks necessary for the cross-examination to be adequately prepared if, in its opinion, either party may be prejudiced by the calling of that person as a witness.⁸⁸

·       At the commencement of the trial, it is advisable to request both the prosecution and defence witnesses who are yet to testify to stay outside the Court while a witness testifies. The Court should not, however, reject the evidence of a witness merely because he was in Court when other witnesses were testifying. His evidence should be taken and the fact of his prior inopportune presence in Court only goes to the weight to be attached to such evidence as was held in Republic v. Waithaka and Another.⁸⁹

·       There are three stages of examining witnesses:

a)       Examination-in-chief: The direct examination of a witness by the party who calls him. The object of examination in chief is to obtain testimony in support of the version of the facts in issue or relevant to the issue for which the party calling the witness contends. The witness is asked questions relevant to the issue before Court in their natural sequence. Questions which cannot be asked at this stage are:

i.         Questions regarding a witness’ personal opinion or points of law.

ii.       Leading questions i.e., questions which obviously suggest the desired answer or assume the existence of disputed facts which the witness has been called to testify about.

iii.     The examination must not be conducted in an attacking manner. Usually, at cross-examination one can attack but one cannot do so to a own witness. If a witness turns hostile, a party can ask the Court to declare the witness a hostile witness and once the Court does so, a party can proceed to attack and impeach the creditability of that witness.

 

 

 

 

⁸⁴ Judiciary of Kenya, Bench Book for Magistrates in Criminal Proceedings, Nairobi, Kenya p.49. ⁸⁵ Judiciary of Kenya, Bench Book for Magistrates in Criminal Proceedings, Nairobi, Kenya p.49. ⁸⁶ S.15, the Oaths and Statutory Declarations Act, Cap 15.

⁸⁷ S.16, the Oaths and Statutory Declarations Act, Cap 15.

⁸⁸ S.150, the Criminal Procedure Code, Cap 75.

⁸⁹ (1972) EA 184; Judiciary of Kenya, Bench Book for Magistrates in Criminal Proceedings, Nairobi, Kenya.

Ordinarily, a witness may not read the evidence from a statement he previously recorded but he may refresh his memory from it or from notes, so long as the same were written shortly after the event he is testifying about.⁹⁰

b)       Cross-examination: The examination of a witness by the adverse party or his advocate.⁹¹ The Court has a duty not only to invite the accused to cross-examine the witnesses of the prosecution especially where the accused is not represented by an advocate, but also to record the answer he gives.⁹² In Republic v. Godhana,⁹³ the Court held that cross-examination is one of the principles of fair hearing and a denial of the right to the accused will vitiate any resultant conviction. The appellant in this case had not been given the opportunity to cross-examine his co accused and other prosecution witnesses. At this stage, one is allowed to ask leading questions. There are three aims of cross-examination:

i.         To elicit further facts which are favourable to the cross-examining party;

ii.       To test and cast doubt on the evidence given by the witness in chief;

iii.     To impeach the credibility of the witness.

c)       Re-examination: This is where a witness has been cross-examined and is then examined by the party who called him. At this stage, leading questions cannot be asked. The questions asked are meant to clarify issues brought out during cross-examination. The stage is confined to matters that only arose during cross-examination. New matters can only be introduced with leave of Court.⁹⁴

·       When the evidence of both the accused and the prosecution has been adduced, their witnesses called, submissions are allowed wherein both sides are supposed to summarize their cases.⁹⁵

11.                DIFFICULT WITNESSES:

There are two types of witnesses who present difficulties to the party calling them as well as to the Court,

namely:

a)       Hostile Witnesses: This is one who gives evidence that is contrary to that which the party that called him wishes to rely on to support their case. It is for this reason that Section 161 of the Evidence Act, Cap 80 empowers the Court to permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party. This is referred to as declaring a witness hostile. In Reublic

v. Alowo,⁹⁶ the Court held that the basis of leave to treat a witness as hostile is that, the evidence which the witness is giving and some earlier statement shows him to be unreliable and this renders his evidence of negligible value. Similarly, in Republic v. Shiguye,⁹⁷ the Court held that the effect of declaring a witness as hostile is to render his whole (and not part) of evidence untrustworthy. Such a witness is unreliable whose evidence cannot be accepted by the Court. The purpose of having a witness declared hostile by the party who calls him is thus to discredit him completely. Equally, in Republic v. Abel Monari Nyamamba and 4

 

⁹⁰ Douglas B., Criminal Procedure in Uganda Kenya (Law in Africa, 1964).

⁹¹ S.302, the Criminal Procedure Code, Cap 75.

⁹² S.208(3), the Criminal Procedure Code, Cap 75.

⁹³ (1991) KLR 417.

⁹⁴ Judiciary of Kenya, Bench Book for Magistrates in Criminal Proceedings 52, Nairobi, Kenya.

⁹⁵ S.307, the Criminal Procedure Code, Cap 75.

⁹⁶ (1972) EALR 324.

⁹⁷ (1975) EA 191.

Others,⁹⁸ the Court of Appeal held that “no Court could base a conviction solely on evidence of a hostile witness because his unreliability introduces an element reasonable for doubt.”

b)       Refractory witness: This refers to any person who, appearing either in obedience to summons or by virtue of a warrant, or being present in Court and being verbally required by the Court to give evidence without offering sufficient excuse for his uncooperative conduct or neglect: i) refuses to be sworn; or ii) having been sworn, refuses to answer any question put to him; or iii) refuses to produce any document or thing which he is required to produce; or iv) refuses to sign his deposition.⁹⁹ In dealing with such a witness, the Court may adjourn the case for any period not exceeding 8 days, and may in the meantime commit him to prison, unless he sooner consents to do what is required of him.¹⁰⁰ If the person, upon being brought before the Court at or before the adjourned hearing, again refuses to do what is required of him, the Court may again adjourn the case and commit him for the same period and so again from time to time until the person consents to do what is so required of him.¹⁰¹ Such person is also liable to any other punishment or proceeding for refusing or neglecting to do what is so required of him.¹⁰²

 

12.                PENALTY FOR NON-ATTENDANCE OF WITNESS:

·       A person summoned to attend as a witness who, without lawful excuse, fails to attend as required, or who, having attended, departs without having obtained the permission of the Court, or who fails to attend after adjournment of the Court after being ordered to attend, shall be liable by order of the Court to a fine not exceeding Ksh.5000.¹⁰³

·       The fine shall be levied by attachment and sale of movable property belonging to the witness within the local limits of the jurisdiction of the Court.¹⁰⁴

·       In default of recovery of the fine by attachment and sale, the witness may, by order of the Court, be imprisoned as a civil prisoner for a term of 15 days unless the fine is paid before the end of term¹⁰⁵ but the High Court may remit or reduce a fine imposed by a Subordinate Court if good cause is shown.¹⁰⁶

13.                SPECIAL WITNESSES:

·       Deaf and dumb witnesses: The Evidence Act, Cap 80 provides that a witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible for e.g., by writing or by signs but, such writing and signs must be made in an open Court and evidence so given is deemed to be oral evidence.¹⁰⁷ In Republic v. Hamisi,¹⁰⁸ the Court held that a deaf and dumb witness is not incompetent as a witness if he can be made to understand the nature of an oath and if intelligence can be conveyed to and from him by means of signs.

⁹⁸ (1996) eKLR: Criminal App No. 86 of 1994.

⁹⁹ S.152(1), the Criminal Procedure Code, Cap 75. ¹⁰⁰ S.152(1), the Criminal Procedure Code, Cap 75. ¹⁰¹ S.152(2), the Criminal Procedure Code, Cap 75. ¹⁰² S.152(3), the Criminal Procedure Code, Cap 75. ¹⁰³ S.149(1), the Criminal Procedure Code, Cap 75. ¹⁰⁴ S.149(2), the Criminal Procedure Code, Cap 75.

¹⁰⁵ S.149(3), the Criminal Procedure Code, Cap 75. See, Republic v. Mohammed, (1990) KLR 569.

¹⁰⁶ S.149(4), the Criminal Procedure Code, Cap 75.

¹⁰⁷ S.126, the Evidence Act, Cap 80.

¹⁰⁸ (1951) 18 EACA 217.

·       Lunatics: When in the course of a trial the Court has reason to believe that the accused is of unsound mind and consequently incapable of making his defence, it shall inquire into the fact of unsoundness,¹⁰⁹ and postpone proceedings in the case.¹¹⁰ If the case is one in which bail may be taken, the Court may release the accused person on sufficient security being given that he will be properly taken care of and prevented from doing injury to himself or to any other person, and for his appearance before the Court or such officer as the Court may appoint in that behalf.¹¹¹ For a case involving a non-bailable offence or if sufficient security is not given, the Court will order that the accused be detained in safe custody in such place and manner as it may thinks fit, and shall transmit the Court record or a certified copy thereof to the Minister for consideration by the President.¹¹² Upon consideration of the record, the President may by order under his hand addressed to the Court direct that the accused be detained in a mental hospital or other suitable place of custody, and the Court shall issue a warrant in accordance with that order; and the warrant shall be sufficient authority for the detention of the accused until the President makes a further order in the matter or until the Court which found him incapable of making his defence orders him to be brought before it.¹¹³ In case a person detained in a mental hospital or other place of custody is found by the medical officer in charge of the mental hospital or place to be capable of making his defence, the medical officer shall forthwith forward a certificate to that effect to the Attorney-General,¹¹⁴ who shall thereupon inform the Court which recorded the finding concerning that person whether it is the intention of the Republic that proceedings against that person continue or otherwise.¹¹⁵ If the Attorney-General intimates that it is the intention of the Republic that proceedings against that person continue, the Court shall order the removal of the person from the place where he is detained and shall cause him to be brought in custody before it. If otherwise, the Court shall forthwith issue an order that the person be discharged in respect of the proceedings brought against him and released from custody, but the discharge and release shall not operate as a bar to any subsequent proceedings against him on account of the same facts.¹¹⁶

·       Children: The Oaths and Statutory Declarations Act, Cap 15 provides that a child of any age may be sworn as a witness in a criminal case provided that he appears to possess sufficient intelligence to understand the nature and obligation of the oath, for his competency depends on his understanding, not his age.¹¹⁷ In Republic v. Gabriel,¹¹⁸ the Court of Appeal held that it is always the duty of the Court to ascertain the competence/ intelligence of a child to give evidence. In Republic v. John Otieno Oloo,¹¹⁹ the Court of Appeal went on to observe that the trial Court, before swearing a child of tender years, should out of caution form an opinion on a voire dire examination whether the child understands the nature of an oath or not. Failure to do so could occasion a miscarriage of justice had that been the only witness on the issues

 

¹⁰⁹ S.162(1), the Criminal Procedure Code, Cap 75. See, Republic v. Kinyua, (2002) 1 KLR 256; Republic v. Omae, Cri. Appeal No.1 of 2007.

¹¹⁰ S.162(2), the Criminal Procedure Code, Cap 75. ¹¹¹ S.162(3), the Criminal Procedure Code, Cap 75. ¹¹² S.162(4), the Criminal Procedure Code, Cap 75. ¹¹³ S.162(5), the Criminal Procedure Code, Cap 75. ¹¹⁴ S.163(1), the Criminal Procedure Code, Cap 75. ¹¹⁵ S.163(2), the Criminal Procedure Code, Cap 75. ¹¹⁶ S.163(3), the Criminal Procedure Code, Cap 75.

¹¹⁷ S.19, the Oaths and Statutory Declarations Act, Cap 15.

¹¹⁸ (1960) EACA 159.

that were before the Court. Even where a child does not understand the nature of an oath, he may, nonetheless, give unsworn evidence.¹²⁰ The general rule is that an accused cannot be convicted of the offence charged against him unless the unsworn evidence of a child is corroborated by some other material evidence implicating him.¹²¹ The position however is different where the evidence given is that of a victim ‘child of tender years.’¹²² Such evidence, as was held in the case of Republic v. Mohamed,¹²³ need not be corroborated if the Court is satisfied that the child is telling the truth.

14.                TRIAL OF CHILDREN:

·       The unique vulnerabilities of young persons have led to the enactment of several child-centric international and municipal laws. In Kenya, the controlling statute is the Children Act, 2001 which removes children in conflict with the law from the jurisdiction of ordinary Courts and places them under Special Courts known as Children’s Courts presided over by Magistrates appointed by the Chief Justice who, by notice in the Gazette, stipulates such Magistrates’ geographical jurisdiction.¹²⁴

·       The Children’s Courts have jurisdiction to hear any criminal charge against a child, other than a charge of murder, or a charge in which the child is charged together with a person(s) of the age of eighteen years and above.

·       Where in the course of any proceedings in a Children’s Court it appears to the Court that the person charged, or to whom the proceedings relate, is over 18 years of age, or where in the course of any proceedings in any Court other than a Children’s Court it appears to the Court that the person charged or to whom the proceedings relate, is under 18 years of age, nothing shall prevent the Court, if it thinks fit, from proceeding with the hearing and determination of the case.¹²⁵

·       Where any conviction or sentence made or passed by a Court other than a Children’s Court is appealed against, or is brought before the High Court for confirmation or revision and it appears that the person convicted was at the time of the commission of the offence under 18 years of age, the High Court shall have power to substitute for the conviction a finding of guilty in accordance with Section 196 and substitute for the sentence an order under section 125(2) of this Act.¹²⁶

·       The foregoing safeguards are now part of the Constitution, which provides that every child has the right not to be detained, except as a measure of last resort, and when detained, to be held for the shortest appropriate period of time¹²⁷ and separate from adults and in conditions that take account of the child’s sex and age.¹²⁸ Furthermore, a child’s best interests are of paramount importance in every matter concerning the child.¹²⁹

15.                TRANSFER OF CASES:

·       Factors to be considered in transferring a case: They include:

¹²⁰ Republic v. Musikiri v Republic, (1987) KLR 69. See, Douglas B., Criminal Procedure in Uganda Kenya (Law in Africa, 1964): Republic v. Onserio, (1985) KLR 618

¹²¹ Republic v. Johnson Muiruri, [1983] KLR 445.

¹²² Under the S.2 of the Children Act, 2001 a ‘child of tender years’ has been defined as that of below the age of 10 years. There is no definition of the term under the Oaths and Statutory Declarations Act, Cap 15.

¹²³ (2005) 2 KLR 138.

¹²⁴ S.73(ii), the Children Act, 2001.

¹²⁵ S.73(iii), the Children Act, 2001.

¹²⁶ S.73(iv), the Children Act, 2001.

¹²⁷ Art.53(1)(f)(i), the Constitution of Kenya, 2010. ¹²⁸ Art.53(1)(f)(ii), the Constitution of Kenya, 2010. ¹²⁹ Art.53(2), the Constitution of Kenya, 2010.

a)       Fair trial                                                                                                         c) Clarity of the case

b)       Lack of submissions from the defense counsel                                                  d) Release on bond

·       The transfer of cases can be undertaken by either the:

a)       High Court: The power of the High to transfer a case from one Magistrate Court to another is part of its wide supervisory powers over the Subordinate Courts. Besides, the High Court has unlimited original jurisdiction both in civil and criminal matters. In Republic v. Kenya Matches Ltd.,¹³⁰ the accused sought to transfer the case from Kericho to Kisumu on grounds that witnesses were in Kisumu. The Court granted the application and held that the transfer was convenient to both the accused and the witnesses.

b)       Subordinate Court: Transfer of cases where offence committed outside jurisdiction: Section 78 of the CrPC provides that if upon the hearing of a complaint it appears that the cause of complaint arose outside the limits of the jurisdiction of the Court before which the complaint has been brought, the Court may, on being satisfied that it has no jurisdiction, direct the case to be transferred to the Court having jurisdiction where the cause of complaint arose.¹³¹ If the accused person is in custody and the Court directing the transfer thinks it expedient that custody should be continued, or, if he is not in custody, that he should be placed in custody, the Court shall direct the offender to be taken by a police officer before the Court having jurisdiction where the cause of complaint arose, and shall give a warrant for that purpose to the officer, and shall deliver to him the complaint and recognizances, if any, taken by the Court, to be delivered to the Court before whom the accused person is to be taken; and the complaint and recognizances, if any, shall be treated to all intents and purposes as if they had been taken by the last-mentioned Court. If the accused person is not continued or placed in custody, the Court shall inform him that it has directed the transfer of the case.

·       Transfer of cases between Magistrates: Section 79 of the CrPC provides that a Magistrate holding a Subordinate Court of the First Class may: a) transfer a case of which he has taken cognizance to any Magistrate holding a Subordinate Court empowered to try that case within the local limits of the First Class Subordinate Courts’ jurisdiction, and b) direct or empower a Magistrate holding a Subordinate Court of Second Class who has taken cognizance of a case and whether evidence has been taken in that case or not, to transfer it for trial to himself or to any other specified Magistrate within the local limits of his jurisdiction who is competent to try the accused and that Magistrate shall dispose of the case accordingly.

·       Transfer of part-heard cases: Section 80 of the CrPC provides that if in the course of any trial before a Magistrate the evidence appears to warrant a presumption that the case is one which should be tried by some other Magistrate, he shall stay proceedings and submit the case with a brief report thereon to a Magistrate holding a Subordinate Court of the First Class empowered to direct the transfer of the case under Section 79.

·       Power of High Court to change venue: Section 81 of the CrPC provides that whenever it is made to appear to the High Court that: a) a fair and impartial trial cannot be had in any criminal Court subordinate

¹³⁰ Misc. Crim. App. No. 24/1992 H.C. Kisumu.

¹³¹ S.78(1), the Criminal Procedure Code, Cap 75.

thereto; or b) some question of law of unusual difficulty is likely to arise; or c) a view of the place in or near which any offence has been committed may be required for the satisfactory trial of the offence; or d) an order will tend to the general convenience of the parties or witnesses; or such an order is expedient for the ends of justice or is required by any provision of the Code, it may order that:

i.         an offence be tried by a Court not empowered under the preceding Sections of this Part but in other respects competent to try the offence;

ii.       a particular criminal case or class of cases be transferred from a criminal Court subordinate to its authority to any other criminal Court of equal or superior jurisdiction;

iii.     an accused person be committed for trial to itself.

The High Court may act on the report of the lower Court, or on the application of a party interested, or on its own initiative. Every application for the exercise of the power is made by motion, which shall, except when the applicant is the DPP, be supported by affidavit. An accused person making any such application shall give to the DPP notice in writing of the application, together with a copy of the grounds on which it is made, and no order shall be made on the merits of the application unless at least twenty-four hours have elapsed between the giving of notice and the hearing of the application. When an accused person makes any such application, the High Court may direct him to execute a bond, with or without sureties, conditioned that he will, if convicted, pay the costs of the prosecutor.

·       Republic as an applicant to transfer: The republic as an accusing party in criminal proceedings rarely applies for a transfer from one Court to another. It acts at the instance of the police investigators or the victim of the alleged crimes.¹³²

16.                TERMINATION OF CHARGES:

·       Termination of cases occurs where the prosecutor acting alone, or on the advice of the claimant, deems it fit to terminate charges.

·       Grounds for termination of charges: These, inter alia, include:

a)       Withdrawal of complaints by a complainant;

b)       Acquittal of accused person when no case to answer;

c)       Decision by the Court.

·       Power of Director of Public Prosecution to enter nolle prosequi: Section 82(1) of the CrPC provides that in any criminal case and at any stage thereof before verdict or judgment, as the case may be, the DPP may enter a nolle prosequi, either by stating in Court or by informing the Court in writing that the Republic intends to discontinue the proceedings and thereupon the accused shall be at once discharged in respect of the charge for which the nolle prosequi is entered. Consequently if the accused has been committed to prison he shall be released, or if on bail his recognizances shall be discharged. Since such a discharge might not operate as a bar to future prosecution, the prosecutor can only terminate the cases with permission of the Court.

 

 

¹³² See, Republic v. Samson Ochieng Nyambua & others, Republic v. Kiprop Koech.

·       When to terminate charges: Section 87 of the CrPC provides that in a trial before a Subordinate Court a Public Prosecutor may with the consent of the Court or by the instructions of the DPP, at any time before the judgment is pronounced, withdraw from the prosecution of the accused person.

·       Effects of termination of charges: The effect of termination of a matter depends on the stage of the case. If termination occurs:

a)       before the accused is called to make his defense, then the accused will be ‘discharged’ but the discharge of an accused person shall not operate as a bar to subsequent proceedings against him on account of the same facts;

b)       after the accused person is called upon to make his defence, he shall be acquitted.

·       Permission to conduct prosecution: Section 88 of the CrPC provides that a Magistrate trying a case may permit the prosecution to be conducted by any person authorized by the DPP. Such authorised person has the same power of withdrawing from the prosecution as is provided by Section 87. Any person conducting the prosecution may do so personally or by an advocate.

17.                WATCHING BRIEF AND HOLDING BRIEF:

·       Watching brief: It is a practice of representing persons who are not strictly parties to proceedings. For instance, an advocate can watch brief/ follow proceedings of a case on behalf of a client who is not directly involved in the suit, or look after the interests of a client in proceedings in which the client is the complainant or the aggrieved party. Watching brief happens largely in criminal proceedings where the complainant is never considered as a party on account of the fact that their interests are represented by the State.

·       Purpose of watching brief: It:

a)       ensures all the relevant evidence the victim has is presented to Court;

b)       ensures that witnesses are ready for the hearing and that all legal issues are addressed;

c)       offers the client the peace of mind that the matter is being pursued, and

d)       allows advocate the opportunity to proactively ensure that justice is indeed done.

·       Constitutional provisions in support of watching brief:

a)       Article 157(6): Power of the DPP to institute and undertake criminal proceedings before any Court (other than a Court Martial) in respect of any offence alleged to have been committed.

b)       Article 48: The State must ensure access to justice for all persons.

c)       Article 50(7): In the interest of justice, a Court may allow an intermediary to assist a complainant or an accused person to communicate with the Court.

·       The role of an advocate watching brief: It includes:

a)       Evaluating the evidence collected by the police and liaising with the complainant and the police for any additional evidence that may be crucial to the outcome of the case.

b)       Assessing the charges brought against the accused, and notifying the prosecutor and the investigating officer of any defects in the charge sheet.

c)       Drafting applications and affidavits on behalf of the prosecutor.

d)       Informing the prosecutor about matters that would affect applications for bail or bond terms.

e)       Holding pre-trial meetings.

f)        Preparing written submissions, on the facts and legal issues in the case.¹³³

18.                PRINCIPLES GOVERNING A FAIR TRIAL:

The various provisions for a fair trial are to be found at Article 50 of the COK within the Bill of Rights. These principles may be seen as the application of natural justice or due process to the criminal justice system and are a defining feature of a free and democratic society. So important is the right to fair trial that it is one of the four non-derogable rights which cannot be limited or alienated under any circumstances.¹³⁴ The principles or specific rights as provided by the Constitution include:

a)       Trial by an independent and impartial Court: The judges need to be not only fair but also manifestly seen to be fair. The judiciary must interpret the laws of the land fairly and dispense justice impartially without fear or favour between individuals, or the individuals and the State.

b)      Presentation before Court within 24 hours: An arrested person has the right to be brought before a court as soon as reasonably possible, but not later than twenty-four hours after being arrested, or if the twenty- four hours ends outside ordinary Court hours, or on a day that is not an ordinary Court day, the end of the next Court day. For e.g., if a person is arrested for murder in Mandera where the High Court is not there, he cannot be charged by a Magistrate Court due to lack of jurisdiction under the CrPC. However, the person can be taken to any Court by following the provisions of Art.49(1)(g)¹³⁵ for appearance and later taken to Garissa High Court which is the nearest Court with jurisdiction. In Republic v. Albabus Mwangi,¹³⁶ the person was detained for 8 months. Failure to produce hi in Court within the required period lead to his acquittal.

c)       Right to expeditious justice: Unreasonably prolonged court proceedings in a criminal case cannot be consistent with the requirements of a fair hearing. The Constitution requires that the trial must begin and conclude without unreasonable delay.¹³⁷

d)      Right to a public trial: Precisely because criminal trials implicate the most cherished rights of the citizens, namely, life and liberty and considering that the public has a definite interest in the outcome thereof, the Constitution requires that the same be held in public. Thus court premises and court proceedings should be open to all members of the public who may wish to attend. However, the Constitution empowers the Courts to exclude press or other members of the public from any proceedings if the exclusion is necessary to protect witnesses or vulnerable persons, morality, public order or national security.¹³⁸

e)       Presumption of innocence: One is presumed to be innocent until he is proven or has pleaded guilty. A full and proper appreciation of this right ought to lead to a more humane and dignified treatment of accused persons by the police and the Courts.

 

¹³³ Republic v. Paul Mwangi Macharia, Criminal Case 56 of 2011 and Timothy Isaac Bryant and Another v. Inspector General of Police and Another.

¹³⁴ Art.25(c), the Constitution of Kenya, 2010.

¹³⁵ An arrested person has the right at the first Court appearance, to be charged or informed of the reason for the detention continuing, or to be released. The most important word here is ‘appearance.’

¹³⁶ Crim. Appeal No. 120 of 2014.

¹³⁷ Art.50(2)(e), the Constitution of Kenya, 2010.

¹³⁸ Art.50(8), the Constitution of Kenya, 2010.

f)        Right to be informed of the charge, with sufficient detail to answer it: An accused person is to be informed, as soon as reasonably practicable, in a language that he understands and in detail, of the nature of the offence with which he is charged. This is meant to eliminate ambushes and undue secrecy in the criminal justice system and to provide clear enough and unambiguous information such as would enable him to make full answer thereto.¹³⁹

g)       Right to adequate time and facilities for the preparation of his defence: The accused must be given adequate opportunity to prepare for his defence. The right to pre-trial discovery is now well established and the giving of the charge sheet, witness’ statements, investigations diaries, experts’ reports, copies of documents and exhibits is basic to every trial nowadays. Besides, every citizen has the right of access to information held by the State and/or another person and required for the exercise or protection of any right or fundamental freedom.¹⁴⁰

h)      Right to chosen counsel: An accused person must be permitted to defend himself before the Court in person or by a legal representative of his own choice; and to be informed of this right promptly. However, where the advocate for the accused behaves unreasonably or makes it impossible for the trial to proceed without undue delay, the Court may order the trial to proceed in his absence without infringing on the right of the accused to an advocate. In Republic v. Adiedo,¹⁴¹ it was held that the accused can on his own consent or conduct, forfeit the right. The right to counsel is not absolute and may be subject to the rights of other persons including of the advocate. In Republic v. Lockhart Smith Republic,¹⁴² an advocate applied to withdraw from acting for an accused person. The trial Court declined the application and ordered the advocate to remain in Court under threat of arrest if he left. On Appeal, it was held that the Court cannot prevent an advocate from withdrawing from a case if for any reason he feels he is unable to continue to serve his clients’ best interests. The advocate must however ask leave from the Court to withdraw.

i)        Right to assigned counsel: To level the playing field, the Constitution provides that every accused person has the right to have an advocate assigned to him by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly. An indigent accused person thus can be provided with an advocate under the pauper brief system. This applies only to capital trials at the High Court and capital appeals at the Court of Appeal.

j)        Right to silence: Every accused person has the right to remain silent and not to testify during the proceedings. This is in keeping with the time-honoured principles of innocence until proved guilty and its corollary, that the burden to prove criminal cases beyond reasonable doubt always rests with the prosecution and never shifts.¹⁴³

k)     
Right to adduce and challenge evidence: An accused person has the right to adduce and challenge evidence. He must be afforded facilities to examine in person or by his legal representative the witnesses called by the prosecution and to carry out the examination of witnesses to testify on his behalf before the Court on the same conditions prosecution witnesses.

¹³⁹ Republic v. Wanjiku, (2002) 1KLR 825.

¹⁴⁰ Art.35(1), the Constitution of Kenya, 2010.

¹⁴¹ (1969) EA 586.

¹⁴² (1965) EA 211.

¹⁴³ Woolmington v. DPP, (1935) AC 462.

l)        Right of non- self-incrimination: An accused person has the right to refuse to say anything, disclose any information, produce any document or answer any question if such disclosure, production or answer would tend to incriminate him. This right is related to and is a continuation of his right to silence both at the time of arrest and during the trial.

m)     Right to interpreter: The accused is permitted to have the assistance of an interpreter without payment if he cannot understand the language used at the trial. Thus, whenever information is required to be given to him as part of the fair-hearing guarantee, the same shall be in a language that he understands. This presupposes translation or interpretation.

n)      Right against retrospective operation of law (res prospicit non respicit): No person can be held to be guilty of a criminal offence on account of an act or omission that did not, at the time it took place, constitute an offence in Kenya nor constitute a crime under international law.¹⁴⁴

o)       Right against double jeopardy: No person who shows that he has been tried by a competent Court for a criminal offence and either convicted or acquitted shall again be tried for that offence or for any other criminal offence of which he could have been convicted at the trial of that offence. Such a person would have the right to plead autrefois convict or autrefois acquit.

p)      Right of exclusion of evidence: Evidence obtained in a manner that violates any right or fundamental freedom in the Bill of Rights shall be excluded if the admission of that evidence would render the trial unfair, or would otherwise be detrimental to the administration of justice.

q)      Right to least severe sentence: An accused has the right, where the sentence prescribed for an offence has been changed from the time he committed the offence to the time of sentencing, to receive the benefit of the least severe sentence. This essentially means that if the punishment for an offence is enhanced by legislation during the pendency of proceedings, the accused on conviction will have the former, lesser sentence imposed. Similarly, even though a person commits an act or omission punishable by a certain sentence, at the time of sentencing he will receive a lesser one if the penalty reduces between charge and sentence.

r)       Right to records: Every accused person, except one charged with any offence triable by summary procedures, is entitled during and in the course of the trial to a copy of the record of proceedings of that trial whenever he requests for the same. The record ought to be available to an accused personally or his legal representatives on continuous basis. At the end of the trial and at a reasonable fee to be prescribed by law, an accused person has a right to a copy of the record of the entire proceedings. This should be availed within a reasonable period.

s)        Right to appeal or review: Every person who is convicted of an offence has a right to appeal to, or apply for review by, a higher Court as prescribed by law.

t)        Right to new trial: The new Constitution provides that a person who is convicted of a criminal offence may petition the High Court for a new trial notwithstanding the dismissal of his appeal by the highest Court to which he is entitled to appeal, or notwithstanding his failure or omission to mount an appeal within

 

¹⁴⁴ Art.50(2)(n), the Constitution of Kenya, 2010.

prescribed time. This new right is exercisable only within narrow strictures of discovery of new and compelling evidence.

u)      Right to be held separate: from persons who are serving a sentence.¹⁴⁵ This is meant to avoid networking.

v)       Right to be released on bond or bail: An arrested person has the right to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.¹⁴⁶

w)     Right to intermediary: The Constitution also recognizes the right of an accused person as well as a complainant to communicate with the court with the aid or assistance of an intermediary where the interest of justice so requires for indeed there may be instances where certain witnesses are in positions of such vulnerability as to be unable to effectively communicate. An intermediary is a person who, on account of his or her own expertise or experience, is allowed by the Court to give evidence on behalf of a vulnerable witness and may include a parent, relative, psychologist, counselor, guardian, children’s officer or social worker.¹⁴⁷

JUDGMENT AND SENTENCING

1.                   DEFINITION OF JUDGMENT:

·       A judgment is the final decision of the Court as pertains the guilt or otherwise of the accused person.

·       It is entered and rendered by the court once all evidence has been adduced by both sides.

2.                   MODE OF DELIVERY OF JUDGMENT (S.168):

·       Judgment is read either immediately after the termination of the trial or some subsequent time.¹⁴⁸

·       The Court need not read the entire judgment and may pronounce and explain the substance only. If, however, either the prosecution or the defence requests that the whole judgment be read out by the Presiding Judge or Magistrate, it shall be so read.¹⁴⁹

·       The accused person shall, if in custody, be brought before the Court, or, if not in custody, be required by the Court to attend, to hear judgment delivered, except where:

a)       his personal attendance during the trial has been dispensed with

b)       the sentence is one of a fine only, or

c)       he is acquitted.

·       No judgment delivered by a Court can be invalid by reason only of the absence of a party or his advocate on the day, or from the place notified for the delivery thereof, or of any omission to serve the parties or their advocates the notice of the day and place.

·       On application of the accused person, a copy of the judgment, or when he so desires, a translation in his own language, if practicable, shall be given to him without delay.¹⁵⁰

3.                   CONTENTS OF JUDGMENT (S.169):

Every judgment must:

 

¹⁴⁵ Art.49(1)(e), the Constitution of Kenya, 2010.

¹⁴⁶ Art.49(1)(h), the Constitution of Kenya, 2010.

¹⁴⁷ See, for instance, S.2, the Sexual Offences Act, 2006.

¹⁴⁸ S.168(1), the Criminal Procedure Code, Cap 75. ¹⁴⁹ S.168(1), the Criminal Procedure Code, Cap 75. ¹⁵⁰ S.170, the Criminal Procedure Code, Cap 75.

a)       be written by or under the direction of the presiding officer of the Court: In Republic v. Lute s/o Luzala,¹⁵¹

the Court held that a judgment must be written and read at the time of its delivery.

b)       be written in the language of the Court;

c)       have the title i.e., Republic v. Accused Person(s) - names and paginations;

d)       contain a brief statement/facts of the offence with which the accused is charged;

e)       have a statement of issue(s) to be decided by the Court;

f)        contain a summary of the evidence/arguments of the prosecution. This should be in narrative form;

g)       contain a summary of arguments of the defence case. It should be clear where the defence case differs from that of the prosecution. The Magistrate must refer to the contested and uncontested elements of the charge;

h)       contain the point(s) for determination;

i)        have the Court’s holding on each point/issue.

j)        contain the decision thereon and the reasons for the decision (ratio decidendi): In Republic v. Gikunju Karingu,¹⁵² the Court held that the judgment should contain within itself all the reasons which have acted on the Magistrate’s mind in coming to his conclusion. The Magistrate can make reference to the demeanour of a witness and the manner in which a witness gave evidence. The decision of the Court will be based on a finding of each count or charge in the charge-sheet and not in global or lump-sum decision for all charges.

k)       have obiter dicta: comments, observations of the proceedings, witnesses’ demeanor, etc;

l)        In the case of a conviction, specify the:

i.         offence of which, and the Section of the Penal Code or other law under which, the accused person is convicted;

ii.       punishment to which an accused is sentenced.¹⁵³

m)     In the case of an acquittal:

i.         state the offence of which the accused person is acquitted, and

ii.       direct that the accused be set at liberty.¹⁵⁴

n)       The concluding paragraph should contain a single sentence clearly stating whether the accused is found guilty and convicted or not guilty and acquitted of the offence with which he is charged.

o)       be dated and signed by the presiding officer in open Court at the time of pronouncing it:¹⁵⁵ In Republic v. Lokwacharia,¹⁵⁶ the judgment of the High Court appealed from was dated but not signed by one of the two judges who delivered it. The Court of Appeal held that in such a case there was actually no judgment and thus, it was precluded from hearing the merits and demerits of the said judgment. The judgment may contain two dates i.e., the day the judgment was written and the day it is delivered.

 

 

 

 

¹⁵¹ 1 E.A.C.A. 106.

¹⁵² (1943) K.L.R. 23. See, Republic v. Njoroge, (2002) 2 KLR 200.

¹⁵³ The Court may convict on a lesser charge not in the charge-sheet but proved by evidence in Court.

¹⁵⁴ The Court in its decision may acquit the accused person(s) on some counts and convict on some of them or acquit on all the charges in the charge-sheet.

¹⁵⁵ S.169(1), the Criminal Procedure Code, Cap 75.

¹⁵⁶ (2005) 2 KLR 379.

4.                   SENTENCING:

·       Once the Court finds that an accused person is not guilty: of the offence charged, it acquits and sets him at liberty. Section 218 of the CrPC provides that the production of a copy of the order of acquittal, certified by the Clerk or other officer of the Court, shall without other proof, be a bar to a subsequent complaint for the same matter against the same accused person. It is the essence of the plea of autrefois acquit.

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

5.                   PRINCIPLES OF SENTENCING:

·       Purpose of a sentence: In Republic v. Jagani and Another¹⁵⁷ the High Court held that the purpose of a sentence is usually to:

a)       disapprove or denounce unlawful conduct as a means to deter the offender from committing the offence;

b)       separate offenders from society if necessary;

c)       assist in rehabilitation of offenders;

d)       provide for reparation for harm done to victims in particular and generally to society;

e)       promote a sense of responsibility in offenders.

·       Equity of sentence: In Kennedy Indiema Omuse v. Republic,¹⁵⁸ the Court of Appeal held that the sentence imposed must be commensurate with the moral blameworthiness of the offender and as such, the trial Court must first look at the facts and circumstances of the case in their entirety before settling for any given sentence.

·       Any Court may pass a lawful sentence: combining any of the sentences which it is authorized by law to pass.¹⁵⁹ Thus, the High Court has jurisdiction that is unlimited and may therefore pass any sentence that the law authorizes¹⁶⁰ while Subordinate Courts pass such sentences as are conferred upon their class and seniority.¹⁶¹ The Court has jurisdiction to pass the full sentence of imprisonment provided in addition to any term of imprisonment which may be awarded in default of payment of a fine, costs or compensation.¹⁶²

·       In computing time: the period of time spent in custody is taken into account as part of time served.

·       When a person is convicted at one trial of two or more distinct offences: In Republic v. Njoka,¹⁶³ the High Court held that it lies in the discretion of the Court to order whether sentences should run concurrently or consecutively. Thus, where offences are committed in one transaction, as it was in this case where the accused had been charged with the offences of ‘stealing’ and ‘burglary’¹⁶⁴ contrary to Sections 279(b) and 304(2) of the Penal Code, Cap 63 respectively, the sentences ought to run concurrently even when laid in separate counts.

 

¹⁵⁷ (2001) KLR 590.

¹⁵⁸ Criminal Appeal No. 344 of 2006.

¹⁵⁹ S.12, the Criminal Procedure Code, Cap 75. ¹⁶⁰ S.6, the Criminal Procedure Code, Cap 75. ¹⁶¹ Ss.6 and 7, the Magistrates Courts Act, 2015. ¹⁶² S.7(5), the Magistrates Courts Act, 2015.

¹⁶³ [2001] KLR 175.

¹⁶⁴ Housebreaking at night is termed ‘burglary,’ and the offender is liable to imprisonment for 10 years.

6.                   THE SENTENCING PROCESS:

·       Evidence: The process of arriving at an appropriate sentence is not a matter left to the whim and caprice of the Court rather, the CrPC provides that before passing sentence or making an order against an accused person, the Court should receive such evidence as it thinks fit in order to inform itself as to the sentence or order properly to be passed.¹⁶⁵

·       The matters that the Court should consider in determining proper sentencing include:

a)       Intrinsic value of the subject matter.

b)       Antecedents of the accused.

c)       Age of the accused.

d)       Conduct of the accused at trial, particularly with regard to his plea.

e)       Prevalence of the particular crime in society.

f)        The period during which the accused person has been in custody.

g)       The nature and amount of any restitution or compensation agreed to be made by the accused person.

h)       The probation officer’s report.¹⁶⁶

·       Previous convictions: After convicting the accused, the Court will first call upon the prosecution to give a factual statement on the accused and in particular whether the accused has any previous convictions and if so the nature and date of the sentence and the date when the accused was released from prison.¹⁶⁷

·       Where the accused denies or disputes an issue alleged by the prosecution: the Court will make a finding on its truth by following the normal procedure for trial and where the prosecution alleges previous conviction, the Court should specifically ask the accused whether he admits or denies such conviction allegation.¹⁶⁸

·       Prejudicial statements: meant to influence the Court to award severe sentences are not allowed.

·       A Court should not take into account extraneous matters: that were neither in evidence nor proved in sentencing the accused person.

·       The accused may then be given an opportunity to deny or qualify the prosecution evidence, plead for mercy or pardon, or indicate why sentence ought not to be pronounced.

·       In case of conviction, fingerprints are taken afresh for examination and then stored at the criminal data cases at the CID headquarters.

7.                   TYPES OF SENTENCES:

The types of sentences are listed in Chapter VI the Penal Code, Cap 63 and not under CrPC. These are:

a)       Death Sentence: Despite many admirable advances in the area of human rights, Kenya retains this type of punishment in its Statute books. Death penalty is held to be cruel, inhuman and unusual form of punishment. The Penal Code provides that where any person is sentenced to death, the form of the sentence shall be to the effect only that he is to suffer death in the manner authorized by law.¹⁶⁹ Persons under the

 

¹⁶⁵ S.216, the Criminal Procedure Code, Cap 75.

¹⁶⁶ S.137I, the Criminal Procedure Code, Cap 75.

¹⁶⁷ Judiciary of Kenya, Bench Book for Magistrates in Criminal Proceedings, Nairobi, Kenya. p.72.

¹⁶⁸ This implies that sentencing involves a structured mini-hearing with full participation and submissions by the prosecutor and the defense. However, the prosecution should not allege or imply that the accused has committed offences for which he has not been convicted.

¹⁶⁹ S.25(1), the Penal Code, Cap 63.

age of eighteen years and a pregnant woman cannot be awarded death sentence.¹⁷⁰ However, such persons are to be detained during the President’s pleasure, and if so sentenced they shall be liable to be detained in such place and under such conditions as the President may direct, and whilst so detained shall be deemed to be in legal custody.¹⁷¹

b)       Imprisonment: A sentence of imprisonment for any offence may be accompanied by hard labour as may be required or permitted by the law under which the offence is punishable.¹⁷² A person liable to imprisonment for an offence may be sentenced to pay a fine in addition to or in substitution for imprisonment but where the law concerned provides for a minimum sentence of imprisonment; a fine shall not be substituted for imprisonment.¹⁷³

c)       Fines: Where a fine is imposed under any law, then in the absence of express provisions relating to the fine in that law, the following apply:

i.         Where no sum is expressed to which the fine may extend, the amount of the fine which may be imposed is unlimited, but shall not be excessive;

ii.       in the case of an offence punishable with a fine or a term of imprisonment, the imposition of a fine or a term of imprisonment shall be a matter for the discretion of the Court.

In the case of Republic v. Kwirichia s/o Kinyua,¹⁷⁴ the Court said that the sentence of imprisonment for non-payment of fine is not a substantive sentence but a sanction imposed by law where a fine cannot be recovered.

d)       Forfeiture: When any person is convicted of an offence the Court may, in addition to or in lieu of any penalty which may be imposed, order the forfeiture of any property which has passed in connexion with the commission of the offence or, if the property cannot be forfeited or cannot be found, of such sum as the Court shall assess as the value of the said property.¹⁷⁵

e)       Compensation: The Court can order the convicted person to make compensation to any person injured by his offence. The compensation may be either in addition to, or in substitution for any other punishment.¹⁷⁶

f)        Costs: A Court may order any person convicted of an offence to pay the costs of and incidental to the prosecution or any part thereof.¹⁷⁷

g)       Security for keeping peace: A person convicted of an offence not punishable with death may, instead of, or in addition to any punishment to which he is liable, be ordered to enter into his own recognizance, with or without sureties, in such amount as the Court thinks fit, conditioned that he shall keep the peace and be of good behaviour for a time to be fixed by the Court, and may be ordered to be imprisoned until such recognizance, with sureties, if so directed, is entered into. The imprisonment for not entering into the recognizance shall not extend for a term longer than one year, and shall not, together with the fixed term of

 

¹⁷⁰ S.25(2), the Penal Code, Cap 63. ¹⁷¹ S.25(2), the Penal Code, Cap 63. ¹⁷² S.26(1), the Penal Code, Cap 63. ¹⁷³ S.26(3), the Penal Code, Cap 63. ¹⁷⁴ [1959] KLR.22.

¹⁷⁵ S.29(9), the Penal Code, Cap 63.

¹⁷⁶ S.31, the Penal Code, Cap 63.

¹⁷⁷ S.32, the Penal Code, Cap 63.

imprisonment, if any, extend for a term longer than the longest term for which he might be sentenced to be imprisoned without fine.¹⁷⁸

h)       Absolute and conditional discharge: Where the Court is of the view, having regard to all the circumstances of the case including the nature of the offence and the character of the offender, that it is inexpedient to inflict punishment and that an order of probation would not be suitable, it may discharge the convict absolutely or upon the condition that he shall not commit another offence in a period not exceeding 12 months from the date of the order.

i)        Community service: The Court may make an order that a convicted offender do perform community service for offences punishable by imprisonment for not more than three years and for which probation is not an appropriate sentence.¹⁷⁹ Community service comprises unpaid public work¹⁸⁰ within a community and is popularly referred to as Extra Mural Penal Employment. The nature or type of public work, in any particular case, is determined by the Court after consultation with the community service orders committee.

j)        Probation.

APPEALS AND REVISIONS

1.                   RIGHT OF APPEAL:

·       The general rule is that any person convicted of a criminal offence has a right of appeal to a higher Court under Article 50(2)(q) of the COK which provides that every citizen has the right to a fair trial, which includes the right if convicted, to appeal to, or apply for review by, a higher Court as prescribed by law.

·       Accused to be informed of right to appeal: When an accused person is sentenced of a criminal offence, the Court is required to inform him of:

a)       his right of appeal to the next higher Court against conviction;

b)       the time within which, if he wishes to appeal, his appeal should be preferred.¹⁸¹

2.                   GROUNDS FOR APPEAL:

·       In Republic v. Jagani and Another¹⁸² it was held that a Court on appeal will only interfere with the decision of the trial Court where:

a)       the sentence was imposed against legal principles; or

b)       relevant factors were not considered; or

c)       irrelevant and or extraneous matters were considered; or

d)       the sentence is manifestly excessive in view of the circumstances of the case; or

e)       there is no evidence to support a particular conclusion.

·       Some of the most common grounds for appeal are:

a)       Defects in the charge: Where it is alleged that the charge is bad for duplicity that is, it charges more than one offence in one count. For e.g., in Saina v. Republic,¹⁸³ the appeal was allowed where the

 

¹⁷⁸ S.33, the Penal Code, Cap 63.

¹⁷⁹ S.3(1), the Community Service Orders Act, Cap 10.

¹⁸⁰ Public work includes but is not limited to: construction or maintenance of public roads or roads of access; afforestation works; maintenance work in public schools, hospitals and other public social service

amenities; work of any nature in a foster home or orphanage; rendering specialist or professional services in the community and for the benefit of the community.

¹⁸¹ S.330, the Criminal Procedure Code, Cap 75.

appellant was charged in a single count with the offences of shop-breaking, theft and handling of stolen property. The trial Magistrate found that he had committed all the offences but, sentenced him for handling of stolen property. The High Court, on appeal, held that each offence must be set out in a separate count and the failure to do so was an incurable illegality.

b)       Wrongful admission of evidence: Where it has been established that evidence has been wrongly admitted, the appellate court may quash the conviction if the matter is of fundamental importance to the case.¹⁸⁴

c)       Wrongful exclusion of evidence: Where evidence has been wrongly excluded, the appellate court may have to consider whether or not the verdict would have been the same.¹⁸⁵

d)       Absence of corroboration: Where an accused has been convicted on uncorroborated evidence, the appellate Court may acquit the appellant.

e)       Misdirection as to the law or procedure applicable to the case: This is especially important for cases of second appeals to the Court of Appeal.

f)        If the decision is unreasonable: That the decision is unreasonable or cannot be supported having regard to the evidence, perhaps because there are too many gaps in the prosecution case.

g)       Any sentence which is unlawful: For e.g., persons sentenced to death have often appealed on this ground as Kenya by fact has abolished the death penalty but it is still contained in our statute books.

h)       Inadequate interpretation of legal principles.

3.                   APPEALS FROM SUBORDINATE COURTS:

·       An appeal lies from the Magistrate’s Court to the High Court on matters of fact as well as of law.¹⁸⁶

·       The High Court, as the first appellate Court is duty bound to reconsider the evidence, evaluate it itself and draw its own conclusions in deciding whether the judgment of the trial Court is to be upheld.¹⁸⁷ The High Court can therefore ask an appellant to resubmit the evidence afresh for exhaustive examination before the High Court draws its own conclusion.

·       The Court of Appeal in Republic v. Amolo,¹⁸⁸ held that an Appellate Court is not entitled to alter the sentence on appeal unless convinced that the trial Court erred in principle in imposing it, or where the sentence is so manifestly harsh or excessive.

·       Number of Judges on Appeal: Appeals from Subordinate Courts are heard by two Judges of the High Court, except when in any particular case the Chief Justice, or a judge to whom the Chief Justice has given authority in writing, directs that the appeal be heard by one Judge.¹⁸⁹ If on the hearing of an appeal the Court is equally divided in opinion, the appeal is reheard before three judges.¹⁹⁰

·       Time of Appeal: Section 349 of the CrPC provides that an appeal must be entered within 14 days of the date of the order or sentence appealed against. However, the Court to which the appeal is made may for

¹⁸³ (1974) EA.

¹⁸⁴ R v. Robert Sinoya & Another, 6 E.A.C.A. 155.

¹⁸⁵ R v. Nganga s/o Kanja and Another, 18 K.L.R. 37.

¹⁸⁶ S.347, the Criminal Procedure Code, Cap 75.

¹⁸⁷ Republic v. Okeno, (1972) EA 32. See, Republic v. Pandya, (1957) EA 570.

¹⁸⁸ (1991) KLR 392.

¹⁸⁹ S.359(1), the Criminal Procedure Code, Cap 75.

¹⁹⁰ S.359(2), the Criminal Procedure Code, Cap 75.

good cause admit an appeal after the period of 14 days has elapsed if it is satisfied that the failure to enter the appeal within that period was caused by the inability of the appellant or his advocate to obtain a copy of the judgment or order appealed against, and a copy of the record, within a reasonable time of applying to the Court therefore.

·       Petition of Appeal: The application is first made by ‘Notice of Motion’ and accompanied by ‘Supporting Affidavit,’ after expiry of 14 days, in an open Court at or before the hearing of the appeal. The prayers at this are generally: a) Allow the application to appeal, b) Cost of the petition. Once leave is granted by the Court, a person shall file a Petition of Appeal. ‘Notice of Appeal’ is not necessary when preparing documents for submission from Subordinate Court to High Court.

·       Appeals from Subordinate Court to High Court are by way of ‘Petition of Appeal.’ Section 350 of the CrPC provides that an appeal must be:

a)       made in the form of a petition in writing;

b)       presented by the appellant or his advocate.

·       Every such petition must:

a)       be accompanied by a copy of the judgment or order appealed against unless the High Court otherwise directs;

b)       specify an address at which notices or documents connected with the appeal may be served on the appellant or his advocate;

c)       grounds of appeal;

d)       contain particulars of the matters of law or fact in regard to which the Subordinate Court appealed from is alleged to have erred; and

e)       be signed by the appellant or his/her advocate.

·       Appellant cannot be permitted, at the hearing of the appeal, to rely on a ground of appeal other than those set out in the petition of appeal provided that:

a)       where, within five days of the date of the judgment or order appealed against, the appellant or his advocate has applied to the Subordinate Court which passed the judgment or order for a copy of the record of the proceedings and where the appeal is entered within 14 days but before receipt by the appellant or his advocate of the copy of the record, the petition of appeal may be amended on notice in writing to the Registrar of the High Court and to the DPP and without leave of the High Court, within seven days of the receipt by the appellant or his advocate of the copy of the record applied for;

b)       the petition of appeal is signed by an advocate who represented the appellant in the proceedings before the Subordinate Court.

·       If the appellant is in prison, he may present his petition of appeal and the accompanying documents to the Officer in Charge of the Prison, who will forward them to the Registrar of the High Court.¹⁹¹

·       Summary disposal of the appeal: When the High Court has received the petition and copy of record, a Judge will peruse them and if he considers that there is no sufficient ground for interfering,¹⁹² may reject

¹⁹¹ S.351, the Criminal Procedure Code, Cap 75.

¹⁹² For instance, lack of enough evidence, or that the sentence is excessive.

the appeal summarily and certify that he has perused the record and is satisfied that the appeal has been lodged without any sufficient ground for complaint. However, no appeal can be rejected summarily unless the appellant or his advocate has had the opportunity of being heard in support of it.¹⁹³ Whenever an appeal is summarily rejected notice of rejection must however be given to the DPP and the appellant or his advocate. If the High Court does not dismiss the appeal summarily, it shall cause notice to be given to the appellant or his advocate, and to the respondent or his advocate, stating the time and place at which the appeal will be heard, and shall furnish the respondent or his advocate with a copy of the proceedings and of the grounds of appeal.¹⁹⁴

·       Power of the High Court: Section 354 of the CrPC provides that the appellant has a right to be present in Court (even when in custody) and to first addresses the Court in support of the grounds set out in the petition of appeal and the respondent then gives his response. The Court may thereafter invite the appellant to reply upon any matters of law or fact raised by the respondent in his address. Besides, the High Court may, if it deems it necessary for reasons to be recorded, take itself or direct a Subordinate Court to take any additional evidence.¹⁹⁵ In order to avoid any actual or perceived prejudice, the accused must be present when the additional evidence is taken unless the High Court otherwise directs.¹⁹⁶ The Court may then make any of the following orders:

a)       Dismiss the appeal where it finds no sufficient ground for interfering.

b)       In an appeal from a conviction:

i.         reverse the finding and set aside the sentence, acquitting, or discharging, or ordering the retrial of the accused.

ii.       alter the finding but maintain the sentence or with or without altering the finding, reduce or increase the sentence; or

iii.     alter the nature of the sentence.

c)       In an appeal against sentence, increase, reduce it or alter its the nature.

d)       In an appeal from an acquittal, an order refusing to admit a complaint or refusing or dismissing a charge; reverse, affirm or vary the determination of the subordinate court, or remit the matter with its opinion thereon to guide the Subordinate Court in determining it whether by way of re-hearing or otherwise.

e)       In an appeal from any other order, alter or reverse it.

In a residual sense, the High Court is empowered to make any amendment or any consequential, incidental or other order that commends itself to it as just and proper but may not impose a greater sentence than might have been imposed by the trial Court.

 

 

 

 

¹⁹³ S.352, the Criminal Procedure Code, Cap 75. ¹⁹⁴ S.353, the Criminal Procedure Code, Cap 75. ¹⁹⁵ S.358, the Criminal Procedure Code, Cap 75.

¹⁹⁶ S.358(3), the Criminal Procedure Code, Cap 75. Additional evidence taken be taken as if it were evidence taken at a trial before a Subordinate Court.

·       Upon deciding the appeal, the High Court certifies its judgment or order to the Court appealed from, which must then make orders and, if necessary, amend the records in conformity with the said judgment or order.¹⁹⁷

3.1                ILLUSTRATION:

REPUBLIC OF KENYA

AT THE HIGH COURT OF KENYA IN NAIROBI CRIMINAL APPEAL NO..................................................... 2013

HARAKA HARAMU.............................................................................. APPELLANT

VERSUS

REPUBLIC............................................................................... RESPONDENT

PETITION OF APPEAL

(Under Article 50(2)(q) of the Constitution of Kenya, 2010 and Section 350 of the Criminal Procedure Code, Cap. 75. Being an appeal against the conviction and sentence of Hon. Phionah Yassin (Ms.) CM in Criminal Case No. … of …, Republic versus Haraka Haramu delivered on 12^th November, 2013)

The Appellant HARAKA HARAMU, hereby appeals against the conviction and sentence of the Court in Criminal Case No. ………. of................... on the following grounds:

1.       The learned Magistrate erred in law in recording a plea of guilt on an equivocal plea.

2.       The learned Magistrate erred in law in failing to enter a plea of guilt.

3.       The learned Magistrate erred in law in failing to convict the appellant.

4.       The learned Magistrate erred in law in failing to ask the prosecution to render facts of the charge.

5.       The learned Magistrate erred in law in failing to entertain the appellant on mitigation.

6.       The learned Magistrate erred in law in sentencing the appellant under the wrong provisions of the law.

 

REASONS WHEREFORE the Appellant prays that:

1.             The appeal be allowed.

2.             The conviction be quashed.

3.             The sentence be set aside.

[A copy of the proceedings incorporating the decision appealed against is attached.] DATED at NAIROBI this ......... day of .......... 20................................................................................ ¹⁹⁸

(Signature is very important)

RES IPSA & COMPANY ADVOCATE

ADVOCATES FOR THE PETITIONERS

 

(Signature is very important)

DRAWN AND FILED BY

RES IPSA & COMPANY ADVOCATE QUEENSWAY HOUSE, 5^TH FLOOR, KAUNDA STREET,

P.O. BOX 29871-00202, NAIROBI.

 

TO BE SERVED UPON:

DIRECTOR OF PUBLIC PROSECUTIONS SHERIA STREET, P.O. BOX 29871-00202, NAIROBI.

4.                               APPEALS FROM THE HIGH COURT:

 

 

 

 

¹⁹⁷ S.355, the Criminal Procedure Code, Cap 75.

¹⁹⁸ The Date and Signature must be in all documents.

·       Section 379 of the CrPC provides that a person convicted on a trial held by the High Court may appeal to the Court of Appeal as of right against conviction where he has been sentenced to death, or to imprisonment for longer than twelve months, or to a fine exceeding two thousand shillings.

·       An appeal against sentence can only be with leave of the Court of Appeal unless the sentence is one fixed by law. The rules applicable for appeals from High Court to Court of Appeal are the Appellate Jurisdiction Rules, 2010.

·       As this is a first appeal, it may be mounted on grounds of law or of fact or of mixed law and fact.¹⁹⁹

·       No appeal is allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by the High Court, except as to the extent or legality of his sentence.

·       There are two important documents to prepare in the appeal:

a)       Notice of Appeal: This is filed in the trial Court i.e., the High Court. It is a mandatory document for appeals from High Court to Court of Appeal and it must be filed within a period of 14 days after sentencing. Once it is filed, it operates as a stay of execution. The parties are the same as presented before the High Court in this document.

b)       Memorandum of Appeal: This is filed in the Court of Appeal.

·       In a proper case, except where the appellant has been sentenced to death, a Judge of the High Court, or of the Court of Appeal, may, once a notice of appeal is filed, grant bail pending the hearing and determination of the appeal.

·       Powers of the Court of Appeal: Similar to High Court above.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

¹⁹⁹ The question of whether or not a person was properly identified as the perpetrator of a crime is an example of mixed law and fact.

NOLLE PROSEQUI

1.                   INTRODUCTION:

·       The omnibus instrument for use in terminating criminal proceedings in any Court is a Nolle Prosequi.

2.                   ILLUSTRATION:

IN THE CHIEF MAGISTRATES COURT AT BURA CRIMINAL CASE NO. …….. OF 20…….

REPUBLIC.................................................... PROSECUTOR/APPLICANT

VERSUS

ABUNUASI KICHWANGUMU.................................................... ACCUSED/RESPONDENT

NOLLE PROSEQUI

IN EXERCISE of the powers conferred on the Director of Public Prosecutions by Article 157(6) & (8) of the Constitution of Kenya, 2010, Section 25 of the Director of Public Prosecutions Act, 2013, Section 82 of the Criminal Procedure Code, Cap. 75 and delegated to me by Article 157(9) of the Constitution, the prosecution hereby seeks to enter a Nolle Prosequi and informs this Honourable Court that the Republic intends that the proceedings against the accused person who is charged with the offence of stealing by servant, contrary to Section 281 of the Penal Code, Cap. 63 SHALL NOT continue on the following principal grounds:

1.       The key witness Abdi Makengeza who testified-in-chief before the Court died before being cross- examined.

2.       The prosecution cannot find a replacement witness without causing further delay to the continuation of the trial.

3.       The events necessitating temporary halting of the proceedings were beyond the control of the prosecution.

4.       It is in the interests of justice that the Honourable Court grants the prosecution permission to enter a

Nolle Prosequi in the prevailing circumstances. Dated at MOYALE the 19th day of November, 2014.

 

(Signed)

JUSTUS GURUDUMU

ASSISTANT DIRECTOR OF PUBLIC PROSECUTIONS

 

 

 

1.                              INTRODUCTION:

SPECIAL PROCEEDINGS PRIVATE PROSECUTION

·       There is no express constitutional provision for private prosecution¹ simply because:

a)       the general procedure for prosecution is through the office of the Director of Public Prosecutions [hereinafter referred to as DPP];²

b)       the conduct of criminal prosecutions is always a matter of public interest.

·       Constitutional provisions on criminal prosecutions:

a)       Art.157(6)(a): Vests in the DPP State power to prosecute. The DPP may institute and undertake criminal proceedings against any person before any Court (other than a Court Martial) in respect of any offence alleged to have been committed.

b)       Art.157(6)(b): The DPP may take over and continue any criminal proceedings commenced in any Court (other than a Court Martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority.

c)       Art.157(6)(c): The DPP may discontinue at any stage before judgement is delivered any criminal proceedings instituted by him or taken over by him. However, the DPP cannot discontinue a prosecution without the permission of the Court.³ If the discontinuance of any proceedings takes place after the close of the prosecution’s case, the defendant is acquitted.⁴

·       The Office of the Director of Public Prosecutions Act, 2013 enumerates two ways in which prosecution can be carried out in Kenya:

a)       Prosecution as a constitutional mandate of the office DPP;

b)       Prosecution by a private person in circumstances where prosecution by the DPP is not exercised or is unlikely to be exercised.

·       Meaning: ‘Private prosecution’ happens when any person, other than a Public Prosecutor or a Police Officer who has reasonable and probable cause to believe that an offence has been committed by any person makes a complaint of the alleged offence to the Magistrate who has jurisdiction to try or inquire into the alleged offence, or within the local limits of whose jurisdiction the accused is alleged to reside or be.⁵

·       Purpose: It is necessary as it enables citizens to bring matters before the Courts when the:

a)       Police or the Government officials or cronies of DPP commit wrongs against citizens, and

b)       DPP or the Government is unwilling, fails, neglects, or refuses to discharge constitutional obligations. This is however not without statutory and legal mechanisms to ensure that the independence of the office of the DPP is not prejudiced.

 

 

 

¹ This power is implied by virtue of Art.157(6)(b) which is on same terms as in Section 26(3)(b) of the repealed Constitution, see, Kimani v. Kihara, (1985) KLR 79.

² Art.157(6), the Constitution of Kenya, 2010. ³ Art.157(8), the Constitution of Kenya, 2010. ⁴ Art.157(7), the Constitution of Kenya, 2010.

⁵ S.28 and 57, the Office of the Director of Public Prosecutions Act, 2013.

In Gouriet v. Union Workers,⁶ the Court held that “enforcement of the law means that any person who commits an offence is prosecuted. So, it is the duty of the DPP or the Attorney General to take the steps to enforce the law. Failure to do so, without good cause, is a breach of their duty. An individual in such a situation who wishes to see the law enforced has a remedy of his own. He can bring a private prosecution.”

·       Person entitled to institute proceedings: Any person conducting the prosecution may do so personally or through an advocate.⁷

·       Problem: The only problem with private prosecutions is that:

a)       it does not extend to serious criminal matters or where limited private interests are involved.⁸

b)       they are liable to be controlled by the DPP or Attorney General (by taking over the prosecution and if they think fit, enter a nolle prosequi).

2.                              PROCEDURE FOR PRIVATE PROSECUTION: Step 1

·       Any person may institute private prosecution: S/he shall however, within thirty days of instituting such proceeding, notify the DPP in writing of such prosecution.⁹

In the Floriculture International Limited and Another,¹⁰ Kuloba J. stated that criminal proceedings at the instance of a private person can be allowed to start or to be maintained by the private prosecutor if the:

a)       complainant has exhausted public machinery of prosecution before embarking on it himself: i.e., a report of the alleged offence must first have been made to the Attorney General or the police or other appropriate public prosecutor, to accord either of them a reasonable opportunity to commence or take over the criminal process, or to raise objection (if any) against prosecuting;

b)       Attorney General or other public prosecutor seized of the complaint has declined to institute criminal proceedings;

c)       refusal by the State agencies to prosecute is without reasonable cause and there is no good reason that a prosecution should not be undertaken;

d)       suspect is not prosecuted at that point in time there is likely to be a failure in public and private justice;

e)       there is a basis for the locus standi, such as, that he has suffered special, exceptional and substantial injury peculiarly personal to him and that he is not motivated by malice, politics or ulterior considerations;

f)        there exist demonstrable grounds for believing that a grave social evil is being allowed to flourish if unchecked because of the inaction of Attorney General or police force.

Step 2

·       Permission ought to be sought from the Court: before initiating private prosecution proceedings. Therefore, leave must be sought under Section 88 of the Criminal Procedure Code, Cap 75 from a Magistrate to conduct a private prosecution. The permission sought is mainly meant to:

a)       privately prosecute a case; and

b)       institute criminal proceedings.¹¹

⁶ (1977) 3 All ER 70.

⁷ S.28(1), the Office of the Director of Public Prosecutions Act, 2013.

⁸ Gregory and Another v. Republic through Nottingham and Two Others, (2004) 1 KLR 547.

⁹ S.28(1) and (2), the Office of the Director of Public Prosecutions Act, 2013.

¹⁰ Misc. Civil Appli. No. 114 of 1997.

It is after permission has been granted that Sections 89 and 90 of the CrPC can be brought into effect and the criminal proceedings instituted. In Republic v. Otieno Clifford Richard,¹² the Court observed as follows with regards to leave to carry out private prosecution:

Section 85 to 88 of the Criminal Procedure Code, Cap 75 deals with appointment of Public Prosecutors and conduct of prosecution. On the other hand, Section 89 to 90 of the Code deals with the institution of proceedings and making of complaint. We think that in the case of a private prosecution an application must first be made under Section 88(1) of the Code for the Magistrate trying the case to grant or refuse to grant permission to the plaintiff to conduct a private prosecution. It is after permission has been granted for the private prosecution to be conducted, that Section 89 and 90 of the Code can be brought into effect and the criminal proceedings instituted. We believe that the principles set out in the Kahara case¹³ at page 89 are good law and provide guidance to a subordinate Court when determining the question whether to allow a private prosecution since it spells out certain issues which must be addressed by the Court when considering an application for permission to private prosecute before granting it.

·       The Magistrate will inquire the following taking into account Kimani v. Kahara case:

a)       Whether a complaint has been made to the DPP or police, if so what was the result? If no such complaint has been made, the Magistrate may either adjourn the matter to enable a complaint to be made and to await a decision thereon, or in a simple case of trespass or assault, proceed to grant permission and notify the police of that fact.

b)       How the complainant is involved in terms of locus standi?

c)       Whether the complainant suffered any injury or danger?

d)       Whether the applicants are motivated, actuated, impelled by malice or political consideration?

If the above are satisfied, the Magistrate will then, at its own discretion, draw or cause to be drawn a formal charge containing a statement of the offence(s).

Step 3

·       Framing of charges: After permission is granted, a charge should then be framed and signed by the complainant and the Magistrate.

·       Issuance of summons or warrant: After the Magistrate has signed the charge, s/he will issue either summons or warrant to compel the attendance of the accused person before the Court under Section 90 of the CrPC, i.e., if the accused has not been brought before the Court on arrest without warrant as envisaged under Section 89(1) of the CrPC.

·       Commencement of the trial: Once the accused person appears before the Court, trial should commence with the Magistrate reading out the charge to the accused in the language that s/he understands.

·       The DPP can only take over a private prosecution: with the permission or authority of the person undertaking such prosecution.¹⁴ With regard to discontinuation or termination of prosecution, the DPP

 

¹¹ The proceedings are deemed to have commenced once an applicant lodges his application for permission under Sections 89(1) of the Criminal Procedure Code, Cap 75 before a Subordinate Court.

¹² Misc. Appli. No.720 of 2005.

¹³ Kimani v. Kahara, (1985) KLR 79.

¹⁴ S.5(1)(b)(ii), the Office of the Director of Public Prosecutions Act, 2013.

cannot terminate or discontinue any prosecution without the permission of the Court.¹⁵ If the DPP takes over proceedings, they become public prosecution. However, Courts have in post 2010 Constitution continued to hold that despite the changes, the procedure for instituting private prosecution remains unchanged. In Isaac Aluoch Polo Aluochier v. Stephen Kalonzo Musyoka,¹⁶ the Court held:

The law and judicial precedent with regard to the extent and circumstances under which a private person may institute criminal prosecutions against another as was in force under the former Constitution is still applicable today. I do not believe that a private citizen can wake up one morning and decide that a fellow citizen has committed an offence, and that he is entitled as of right to bring a private prosecution against the said citizen without reference to the police or the office of the Director Public Prosecution.

·       A private person may engage services of private investigators: at his/her expense to investigate the circumstances of the offence and have the relevant evidence collected and preserved for a possible trial. The private person shall have the same power of withdrawing from the prosecution as is provided by Section 87 of the Criminal Procedure Code, Cap 75 and the provisions of that Section shall apply to withdrawal by that person.

Step 4

·       The applications shall be accompanied by a Certificate of Urgency and a Supporting Affidavit: setting out the ground upon which the applicant is relying on. Applications are generally governed by Order 51 of the Civil Procedure Rules, 2010 which are set out through a notice of motion. Its contents shall be the complaint and permission requesting for private prosecution.

3.                              WHETHER A PRIVATE PROSECUTOR CAN APPEAL ACQUITTAL?

·       Under Section 348A of the CrPC, it is only the DPP who can appeal from an order of acquittal by a Subordinate Court. A private prosecutor is thus not empowered to file an appeal.

·       In Njoroge v. Karanja¹⁷ Chesoni J. dismissed a Private prosecutor’s appeal against the accused who had been acquitted by trial Court under Section 210 CrPC of the offence of malicious damage to property. In Shah v. Patel, (1954) XXI EACA 236 it was also held that a private prosecutor is not entitled to be heard on appeal.

4.                              ILLUSTRATIONS – 1

On 23^rd April 2012, John Kano, the Managing Director of Twit To Ltd., a garment manufacturing plant in Athi River, was conducting what he calls an ‘administrative morning round’ in the factory premises at about 10.am when he received a telephone call from the factory’s Chief Security Officer, Mr. Kali Kauka. Mr. Kauka explained to Mr. Kano that he was at the main factory gate and that there were about four visitors who included Mr. Atoti Supa, the Honourable Minister for Labour and Manpower Development of the Republic of Kenya. The Minister’s Personal Assistant, Mr. Kacheke, explained to Mr. Kauka that in fulfillment of their Political Party Leader’s election pledge to supervise factories and in readiness for the upcoming Labour Day celebrations, the Minister had decided to visit their premises to assess their workers’

 

¹⁵ S.5(1)(b)(iii), the Office of the Director of Public Prosecutions Act, 2013.

¹⁶ (2013) eKLR.

¹⁷ (1984) KLR 662.

working conditions and examine their payroll to satisfy himself that Twit To Ltd complied with all their statutory obligations.

Mr. Kano authorized the factory security to let the Minister and his entourage into the factory premises whereupon he would conduct them on a factory tour. As soon as the Minister and his entourage entered the factory premises, they went straight to Mr. Kano’s offices and were ushered into the boardroom for a discussion before the tour. Mr. Kano met the Minister and expressed his pleasant surprise at the surprise visit. The Minister explained that his mission was two-fold:

i)        to meet factory workers and assess their working condition, and

ii)       to examine the payroll and confirm if the factory has been meeting/paying out the minimum wage as gazette.

Mr. Kano confirmed to the Minister that he would conduct him on a tour of the factory unconditionally but added that as for the second request, he required a Board of Director’s approval to avail to the Minister or any third party payroll details, in the absence of a Court order. The Minister demanded for the payroll, with or without the Board’s consent arguing that he was discharging his ministerial responsibilities. Mr. Kano stood his ground after which a scuffle ensued. The Minister slapped Mr. Kano across the face, picked Mr. Kano’s official laptop that was lying on the table and smashed it on the ground before his Personal Assistant and bodyguard intervened and restrained the Minister. The scuffle was witnessed by Ms. Subira Mrembo (Mr. Kano’s Secretary), Mr. Kali Kauka, Mr. Kacheke and Mr. Matata (the Minister’s bodyguard).

Mr. Kano bled profusely and was rushed to Athi River District Hospital where he was treated and discharged the same day.   From hospital, he drove to Athi River Police Station and made a report to the duty officer (Occurrence Book Number 13/23/04/2012) giving a detailed account of what happened. On mentioning the assailant’s name, the duty officer said he had no authority to enter a Minister’s name in the occurrence book and claimed that he had to be specifically authorized by the Officer Commanding Station who at the time was not in office.   Mr. Kano was asked to return to the Police Station the following day, 24^th April 2012 at 10.am for further instructions. When he returned on 24^th April 2012, he was asked to go away and return on 25^th April 2012 to enable the OCS to ‘consult further.’ On 25^th April 2012, the OCS informed Mr. Kano that he had received orders ‘from above’ to take Mr. Kano’s complaint in full, which he did and commence investigations into the incident. Mr. Kano, Ms Subira and Mr. Kauka recorded statements and were thereafter advised that they would be contacted in due course. For the last five months, Mr. Kano has not heard from the OCS despite making numerous telephone calls and visits to the Police Station. Mr. Kano feels very frustrated by the conduct of the OCS and calls on you for advice. He affirms to you his desire to put the criminal justice system into motion and have the Minister punished for his misconduct. Mr. Kano tells you that he is a believer in revenge, what he describes as an eye for an eye.

He instructs you to prepare the necessary documents to commence private prosecution. Draw up the documents as instructed.

ANSWER: The important documents in this case are the Certificate of Urgency, Supporting Affidavit and Notice of Motion.

REPUBLIC OF KENYA

IN THE MAGISTRATE COURT OF KENYA AT ‘MAVOKO’ MISCELLANEOUS CRIMINAL CAUSE¹⁸ NO............................................................. OF 2012

 

JOHN KANO                                                         ……………. ………   APPLICANT VERSUS

ATOTI SUPA............................................................................................................................ 1^st RESPONDENT

 

 

CERTIFICATE OF URGENCY

I, MANENO MATWERI, an Advocate of the High Court of Kenya practising as such in the Firm of DARC K. JOVAR ADVOCATES, BRUCE HOUSE STANDARD STREET P.O BOX 20514 00100 NAIROBI, KENYA

who have the conduct of this matter on behalf of the Applicant do hereby certify that the application filed herewith is urgent for reasons:

1.       THAT the Applicant has been following the arrest and investigation of the case against the Respondent.

2.       THAT for five months, no charges have been preferred against the Respondent by the police or the Director of Public Prosecutions despite the applicant’s efforts to compel them to do so.

3.       THAT the Police have failed, refused and/or neglected to exercise their statutory duties as a result of clouded and compromised judgement.

4.       THAT if the prosecution is not commenced privately the Respondent are likely to go unpunished.

5.       THAT the passage of time will erode evidence.

6.       THAT the applicant believes that if the above orders are not granted, the Applicant will be prejudiced and suffer a great injustice.

7.       THAT it is in the best interest of justice that the orders be granted as prayed for.

WHICH APPLICATION is supported by the annexed affidavit of the applicant JOHN KANO.

The grant of the appropriate orders is absolutely essential for the preservation of the rule of law and the democratic constitutional order in Kenya.

 

DATED at NAIROBI this ……. day of...................................... 2012.

 

 

DARC K. JOVAR ADVOCATES

ADVOCATES FOR THE PETITIONER

 

 

DRAWN AND FILED BY

DARC K. JOVAR ADVOCATES

BRUCE HOUSE STANDARD STREET, P.O BOX 20514-00100, NAIROBI, KENYA.

¹⁸ Miscellaneous Application – Must emanate from other proceedings while Miscellaneous Cause – No other proceedings are going on.

REPUBLIC OF KENYA

IN THE MAGISTRATE COURT OF KENYA AT ‘MAVOKO’ MISCELLANEOUS CRIMINAL CAUSE NO............................................................. OF 2012

 

JOHN KANO                                                         ……………. ………   APPLICANT VERSUS

ATOTI SUPA............................................................................................................................ 1^st RESPONDENT

SUPPORTING AFFIDAVIT

I, JOHN KANO, a resident of House No. 2874, Uper Hido and of P.O Box 1754 - 00400, ATHI RIVER in the Republic of Kenya do hereby make oath, swear and state as follows:

1.       THAT I am a male adult of sound mind and understanding and thus competent to swear this affidavit.

2.       THAT I am an applicant in this application seeking leave to institute a private prosecution.

3.       THAT the respondent, ATOTI SUPA is the Honourable Minister for Labour and Manpower Development of the Republic of Kenya.

4.       THAT on 23^rd April 2012, at 10.am, I was conducting an ‘administrative morning round’ at Twit To Ltd., a garment manufacturing plant in Athi River when I received a telephone call from the factory’s Chief Security Officer, Mr. Kali Kauka who informed me that there were about four visitors at the main factory gate.

5.       THAT the four visitors were the Respondent, the Respondent’s Personal Assistant, Mr. Kacheke and the Respondent’s body guards.

6.       THAT I instructed the security men to allow the visitors to enter the factory premises.

7.       THAT upon entry, the Respondent was ushered into the boardroom for a discussion before the tour.

8.       THAT the Respondent explained to me that his mission was two-fold:

a)       to meet factory workers and assess their working condition, and

b)       to examine the payroll and confirm if the factory has been meeting/paying out the minimum wage as gazette.

9.       THAT I confirmed to the Respondent that I would conduct him on a tour of the factory unconditionally but added that as for the second request, I required the Board of Director’s approval to avail to the Respondent payroll details, in the absence of a Court order.

10.    THAT the Respondent demanded for the payroll, with or without the Board’s consent arguing that he was discharging his ministerial responsibilities.

11.    THAT on refusal, the Respondent slapped me across the face, picked my official laptop from the table and smashed. (Annexure ‘A’ for the photographs of the laptop).

12.    THAT the slapping led to I bleeding profusely and was forced to be rushed to Athi River District Hospital where I was treated and discharged. (Annexure ‘B’ for the discharge report)

13.    THAT from hospital, I drove to Athi River Police Station and made a report to the duty officer (Occurrence Book Number 13/23/04/2012) giving a detailed account of what happened.

14.    THAT on mentioning the Respondent’s name, the duty officer said that he could not enter the Respondent’s name in the Occurrence Book without being specifically authorized by the Officer Commanding Station who at the time was not in office.

15.    THAT I was asked to return to the Police Station the following day, 24^th April 2012 at 10.am for further instructions.

16.    THAT when I returned on 24^th April 2012, I was asked to go away and return on 25^th April 2012 to enable the Officer Commanding Station to ‘consult further.’

17.    THAT on 25^th April 2012, the Officer Commanding Station informed me that he had received orders ‘from above’ to take my complaint and commence investigations into the incident.

18.    THAT my Secretary, Security Officer and I recorded statements and were thereafter advised that we would be contacted in due course.

19.    THAT for the last five months, I have not heard from the Officer Commanding Station despite making numerous telephone calls and visits to the Police Station.

20.    THAT despite my visits and insistent requests to the Officer Commanding Station to arrest and prosecute the said Respondent, it has fell on deaf ears.

21.    THAT as time lapses, evidence is jeopardised and will therefore be difficult to prosecute Respondent.

22.    THAT I swear this Affidavit conscientiously believing the same to be true and correct to the best of my knowledge, information and belief sources of my information having been duly disclosed and attributed.

 

 

 

 

 

 

 

Sworn at Nairobi by the said   ) JOHN KANO on this ……… day of ………   2012 ) )                                                         )                           (Deponent)   BEFORE ME     ) )   COMMISSIONER FOR OATHS   ) )

)

 

 

 

 

 

 

 

 

 

DRAWN & FILED BY:¹⁹

DARC K. JOVAR ADVOCATES

BRUCE HOUSE STANDARD STREET, P.O BOX 20514-00100, NAIROBI, KENYA

 

 

 

¹⁹ S.35 of the Advocates Act, Cap 16 requires this to be inserted.

 

 

 

REPUBLIC OF KENYA

IN THE MAGISTRATE COURT OF KENYA AT ‘MAVOKO’ MISCELLANEOUS CRIMINAL CAUSE NO............................................................. OF 2012

 

JOHN KANO                                                         ……………. ………   APPLICANT VERSUS

ATOTI SUPA............................................................................................................................ 1^st RESPONDENT

(Under Article 157(6)(b) of the Constitution of Kenya, 2010, Section 88(1) of the Criminal Procedure Act, Cap. 75 of the Laws of Kenya, Section 28(1) of the Office of the Director of Public Prosecutions Act, 2013 and all other enabling provisions of the law)

 

NOTICE OF MOTION

 

TAKE NOTICE that this Honourable Court will be moved on the ………. day of............................................................................................................................................................ 2012 at 9.00am or soon

thereafter for the hearing of the application for ORDERS:

1.       THAT this application be certified as urgent.

2.       THAT this Honourable Court be pleased to grant leave to the applicant herein to privately prosecute the Respondent.

3.       THAT the costs of this application be provided for.

4.       THAT this Honourable Court be pleased to grant any other orders that it deems fit.

WHICH APPLICATION is supported by the annexed affidavit of JOHN KANO and is premised on the following grounds:

1.       THAT the Applicant has been following the arrest and investigation of the case against the Respondent.

2.       THAT for five months, no charges have been preferred against the Respondent by the police or the Director of Public Prosecutions despite the applicant’s efforts to compel them to do so.

3.       THAT the Police have failed, refused and/or neglected to exercise their statutory duties as a result of clouded and compromised judgement.

4.       THAT if the prosecution is not commenced privately the Respondent is likely to go unpunished.

5.       THAT the passage of time will erode evidence.

6.       THAT the applicant believes that if the above orders are not granted, the Applicant will be prejudiced and suffer a great injustice.

7.       THAT it is in the best interest of justice that the orders be granted as prayed for.

 

This Hournable Court has jurisdiction to hear and determine this application. DATED at NAIROBI this ……. day of.......................................................................... 2012.

 

DARC K. JOVAR ADVOCATES

ADVOCATES FOR THE PETITIONER

 

DRAWN AND FILED BY

DARC K. JOVAR ADVOCATES

BRUCE HOUSE STANDARD STREET, P.O BOX 20514-00100, NAIROBI, KENYA.

 

TO BE SERVED UPON:

ATOTI SUPA

CONTINENTAL HOUSE, CITY HALL WAY, P. O. BOX 40112 - 00100,

NAIROBI, KENYA.

HABEAUS CORPUS

1.                   INTRODUCTION:

·       The writ of habeas corpus consists of a mandatory order by the Court directed to any person alleged to have another person unlawfully in his custody, requiring him to have the body of such person before the Court.

·       The writ is available only to Government bodies and is applicable if the person detained is within jurisdiction. It cannot therefore be issued if the person is out of the country.

·       For High Court only: Because habeas corpus is a prerogative writ, it can only be issued by the High Court.

2.                   CONSTITUTIONAL AND LEGAL ANCHOR:

·       Article 25(3)(d) of the COK acknowledges rights which cannot be limited i.e., habeas corpus.

·       Article 51(2) makes express provision that a person who is detained or held in custody is entitled to a petition for an order of habeas corpus.

·       Power to issue directions of the nature of habeas corpus: Section 389(1) of the Criminal Procedure Code,

Cap 75 provides that the High Court may whenever it thinks fit direct that:

a)       any person within the limits of Kenya be brought up before the Court to be dealt with according to law;

b)       any person illegally or improperly detained in public or private custody within those limits be set at liberty;

c)       any prisoner detained in a prison situated within those limits be brought before the Court to be examined as a witness in any matter pending or to be inquired into in that Court;

d)       any prisoner so detained be brought before a Court Martial or Commissioners acting under the authority of a Commission from the President for trial to be examined touching any matter pending before the Court Martial or Commissioners respectively;

e)       any prisoner within those limits be removed from one custody to another for the purpose of trial; and

f)        the body of a defendant within those limits be brought in on a return of cepi corpus²⁰ to a writ of attachment.

·       Issuance of rules: Section 389(2) of the Code empowers the Chief Justice to make rules to regulate the procedure in cases under Section 389(1). The said procedure is laid down in the Criminal Procedure (Directions in the Nature of Habeas Corpus) Rules, Legal Notice No.474 of 1963. These, inter alia, include:

a)       Rule 2: An application for the issue of directions in the nature of habeas corpus has in the first instance to be made ex-parte to a Judge in chambers (Chamber Summons), supported by affidavit in triplicate.

b)       Rule 3: If the application is accepted, the Judge shall order a summons to be issued directed to the person in whose custody the person alleged to be improperly detained is said to be, requiring his appearance at a specified place and time, together with the original of any warrant or order for the detention, to show cause why the person detained should not be released forthwith.

c)      
Rule 4: The summons shall be accompanied by a copy of all affidavits lodged in support of the application and, where the person detained is in public custody, a duplicate of the application, of the summons and of all affidavits lodged in support thereof shall be forwarded to the DPP.

²⁰ Cepi Corpus is a Latin term which means ‘I got the body.’

d)       Rule 5: Affidavits in reply are to be filed in duplicate, of which one copy must be served on the applicant.

e)       Rule 6: The date fixed for the return to the summons shall be as soon as may be convenient after its issue, to permit the attendance of the parties served.

f)        Rule 7: Pending the return of summons, the person detained, if in public custody, may be admitted to bail, and if in private custody may be released on such terms and conditions as the Court may deem fit.

g)       Rule 12: A Judge may, in addition to any other orders he may make under the rules, order the body of any person alleged to be improperly detained to be produced before him in Court.

3.                   TYPES OF HABEAS CORPUS:

a)       Habeas corpus ad deliberandum et recipiendum: A writ for bringing an accused from a different country into a Court in the place where a crime had been committed for purposes of trial (extradition).

b)       Habeas corpus ad deliberandum: Removal of a prisoner from one custody to another.

c)       Habeas corpus ad faciendum et recipiendum (also called habeas corpus cum causa): A writ of a superior Court to a custodian to return with the body being held by the order of a lower Court, with reasons, for the purpose of receiving the decision of the superior Court and of doing what it ordered.

d)       Habeas corpus ad prosequendum: A writ ordering return with a prisoner for the purpose of prosecuting him before the Court.

e)       Habeas corpus ad respondendum: A writ ordering return to allow the prisoner to answer to new proceedings before the Court.

f)        Habeas corpus ad testificandum: It secures attendance of a prisoner in custody under civil process to testify or give evidence before any Court, Tribunal, Commission, etc.

g)       Habeas corpus ad subjiciendum: A writ securing liberty.

4.                   HABEAS CORPUS VIS-À-VIS PRODUCTION ORDER:

 

PRODUCTION ORDER	HABEAS CORPUS
It is issued when a person is in lawful custody.	Issued when person is in unlawful custody.
It is issued only in ongoing proceedings	It is not issued in relation to any other proceedings other than the application for the writ.
It is issued by any Court seized of proceedings for which the accused is in custody.	It is only issued on application by the High Court.

 

5.                   HABEAS CORPUS: JUDICIAL APPROACH

·       Purpose of the writ: In Salim Mohammed v. Commissioner of Police²¹ and Ibingira & Others v. Attorney General of Uganda,²² the Eastern Africa Court of Appeal held:

The purpose of the writ is to require the production before the Court of a person who claims that he is unlawfully detained so as to test the validity of the detention and so as to ensure his release from unlawful restraint should the Court hold that he is unlawfully restrained. The writ is … a means whereby the most humble citizen ... tests the action of the Executive no matter how high the position of the person who ordered the detention. If the writ is not obeyed, then it is enforced by the attachment for contempt of all persons who are responsible for the disobedience of the writ.

²¹ HCCRIM App. No. 64 (2003).

²² (1966) E.A. 445.

·       When it cannot be granted: The purpose of habeas corpus as stated by the Court in Ibingira case was also restated in Republic v. Mohamed²³ and the High Court went on to add that habeas corpus may be refused if:

a)       the circumstances are such that the writ should not issued;

b)       the cause is not shown, or where there is an alternative remedy by which the validity of the detention can be challenged. So, the applicant must show cause and demonstrate that other ordinary remedies are either inapplicable or inadequate.²⁴

·       In Secretary of State for Home Affairs v. O’Brien,²⁵ the Court pointed out that:

The essential and leading theory of the whole procedure (habeas corpus) is the immediate determination of the right of the appellant’s freedom … The Court … determines two questions, first, whether the person to whom the writ is addressed, either directly … or by his agents, detained in custody the person named in the writ? and second, if so, was that detention legal or illegal?

·       Considerations:

6.                   PROCEDURE OF SEEKING ORDER OF HABEAS CORPUS:

The procedure is governed by Section 389 of the Criminal Procedure Code, Cap 75:

a)       Applications to the Judge in Chambers are brought under Chamber Summons (in triplicate).

b)       The Chamber Summons is accompanied by a Supporting Affidavit.

c)       The Court will then issue summons to the authority detaining the subject.

d)       The detaining authority is required to show cause why the detainee should not be released forthwith.

7.                   ILLUSTRATION-1

Mr. Mali Yamungu a resident of Rongai Estate in Kajiado County, is believed to be aged 50 years. Most of his neighbours saw him grow up as a young man. On attaining the age of about 15 years, he disappeared. He reappeared two years ago and nobody knows where he has been for the last 33 years.   It is rumoured that at 15 years, he travelled to North Western Pakistan where he underwent military training on how to make improvised explosive devices (IEDS) and unarmed hand to hand combat. He is believed to have crossed over to Afghanistan where he fought alongside Osama bin Laden in the Mojahedeen that drove the Soviet Army out of Afghanistan. He is also believed to have been the Chief Explosives Instructor at a military academy set up by the Taliban in Afghanistan in the year 2000. After the United States Army invaded Afghanistan in November 2001, Mr. Yamungu is believed to have crossed back to Pakistan where he lived for a couple of years before moving to Syria.

In 2005 he moved to Iraq where he is believed to have fought alongside a Shiite militia in Ramadi Province opposed to the presence of American forces in that country. He is then believed to have relocated to Yemen before ending up in Somalia in the year 2011. When civil war broke out in Syria around 2012, he was invited by one of the militias, called ISIS, to set up their explosives academy in a city called Allepo. After a close shave with an armed American drone that killed 100 of his trainees, leaving him nursing injuries, Mr. Yamungu finally ‘retired’ from the global jihadi movement and returned to Kenya settling in Kasipul- Kabondo, Homa Bay County. Mr. Yamungu is newly married to Ms Hamadi Yamaki.

Recent events in the country involving explosions have caused the intelligence community to be interested in his life. The Inspector General of Police, acting on instructions of the National Security Council, had him arrested on 22.05.2016 and interrogated. The police have employed the latest interrogation techniques on Mr. Yamungu but he has adamantly refused to divulge anything. He has been in police custody for the last three months without any Court appearance. You are approached by Ms Hamadi who explains to you what befell her beloved husband.

Draft the necessary documents for the realization of the recommended remedy.

 

 

 

²³ (2003) KLR 344. This is one of the cases where the writ of habeas corpus was successfully applied for in Kenya.

²⁴ Paul Mburu Kamau and another v Provincial Criminal Investigation Officer Coast Province and Another, (2006) KLR 2.

²⁵ (1923) A.C. 603.

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT HOMA BAY MISCELLANEOUS CRIMINAL CAUSE²⁶ NO............................................................. OF 2016

IN THE MATTER OF HABEAS CORPUS FOR MALI YAMUNGU HAMADI YAMAKI                                                                    ……………………                                                                           APPLICANT

VERSUS

INSPECTOR GENERAL OF POLICE........................................................................................ RESPONDENT

CERTIFICATE OF URGENCY

I, ENOI WERI, an Advocate of the High Court of Kenya practising as such in the Firm of SEEMA AND CO. ADVOCATES, P.O BOX 20514 – 00100, NAIROBI, KENYA who have the conduct of this matter on behalf of the Applicant do hereby certify that the application filed herewith is urgent for reasons:

·       THAT the Applicant has been following the arrest and investigation of the case against the Mali Yamungu.

·       THAT the Applicant’s husband, Mali Yamungu, has been in police custody for the last three months and has not been brought before Court to answer to any other charges.

·       THAT Mali Yamungu be forthwith released from custody or immediately produced before the Court of law.

·       THAT the police be ordered to stop employing the latest interrogation techniques on Mali Yamungu.

·       THAT it is in the best interest of justice that the orders be granted as prayed for.

DATED at NAIROBI this.............................. day of................. 2016.

 

 

(Signature is very important)

SEEMA AND CO. ADVOCATES

ADVOCATES FOR THE APPLICANT

 

 

DRAWN AND FILED BY SEEMA AND CO. ADVOCATES, P.O BOX 20514-00100, NAIROBI, KENYA.

 

 

 

 

 

 

 

 

 

 

 

 

 

²⁶ Miscellaneous Application – Must emanate from other proceedings while Miscellaneous Cause – No other proceedings are going on.

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT HOMA BAY MISCELLANEOUS CRIMINAL CAUSE NO............................................................ OF 2016

IN THE MATTER OF HABEAS CORPUS FOR MALI YAMUNGU HAMADI YAMAKI                                                                    ……………………                                                                           APPLICANT

VERSUS

INSPECTOR GENERAL OF POLICE........................................................................................................ RESPONDENT

 

CHAMBER SUMMONS

(Articles 21(1), 22(2)(a), 23(3), 25(d), 29(d), 49(1)(f), 51(2), of the Constitution of Kenya, 2010, Section 389(1)(b) of the Criminal Procedure Code, Cap 75, and Criminal Procedure (Directions in the Nature of Habeas Corpus) Rules, Legal Notice No.474 of 1963)

 

LET ALL PARTIES CONCERNED attend the Honourable Judge in Chambers on the ……. day of

…….. 2016 at 9.00 O'clock in the forenoon or soon thereafter as counsel for the Applicant may be heard for ORDERS:

1.       THAT this application be certified as urgent.

2.       THAT there be and is hereby issued a writ of habeas corpus ad subjiciendum directed to the Respondent or his agents and/or representative to have the body of MALI YAMUNGU produced before the honorable Court at such time as the Judge may direct.

3.       THAT the Respondent be directed to release the applicant on bail on such terms and conditions as the Court deems fit to grant.

4.       THAT the costs of this application be provided for.

WHICH APPLICATION is based on the ground:

1.       THAT the Applicant is Mali Yamungu’s wife.

2.       THAT on 22.05.2016, Mali Yamungu was unlawfully arrested on the instructions of the National Security Council for being involved in the manufacture of improvised explosive devices that have rocked the country in the recent past.

3.       THAT Mali Yamungu has been in police custody for the last three months and has not been brought before Court to answer to any charges.

4.       THAT the police authorities are employing latest unlawful interrogation techniques on Mali Yamungu.

DATED at NAIROBI this ……. day of....................................... 2016.

 

SEEMA AND CO. ADVOCATES

ADVOCATES FOR THE APPLICANT

 

DRAWN AND FILED BY SEEMA AND CO. ADVOCATES P.O BOX 20514-00100, NAIROBI, KENYA.

 

TO BE SERVED UPON:

THE INSPECTOR GENERAL OF POLICE P. O. BOX 44249 – 00100,

NAIROBI, KENYA.

 

NB: “If any party served does not appear at the time and place above mentioned, such order will be made and proceedings taken as the Court may think just and expedient.”

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT HOMA BAY MISCELLANEOUS CRIMINAL CAUSE NO............................................................. OF 2016

IN THE MATTER OF HABEAS CORPUS FOR MALI YAMUNGU HAMADI YAMAKI                                                                    ……………………                                                                           APPLICANT

VERSUS

INSPECTOR GENERAL OF POLICE........................................................................................................ RESPONDENT

SUPPORTING AFFIDAVIT

I HAMADI YAMAKI, a resident of Kasipul-Kabondo, Homa Bay County of P. O. Box 297 – 00189, Homa Bay within the Republic of Kenya make oath and state as follows:

1.       THAT I am the wife of Mali Yamungu and the applicant in this cause.

2.       THAT my husband had been unlawfully arrested on the instructions of the National Security Council for being involved in the manufacture of improvised explosive devices that have rocked the country in the recent past.

3.       THAT my husband has been in police custody for the last three months and has not been brought before Court to answer to any charges.

4.       THAT the police authorities are employing latest unlawful interrogation techniques on Mali Yamungu.

5.       THAT he is the family’s sole breadwinner and we are likely to suffer without his presence.

6.       THAT I believe that unless this Court grants the writ of habeas Corpus, Mali Yamungu will continue being detained at the Police Station.

 

 

 

 

 

 

 

Sworn at Nairobi by the said   ) HAMADI YAMAKI   ) on this ……… day of ……… 2016 )                                                         )                           (Deponent)   BEFORE ME     ) )   COMMISSIONER FOR OATHS   ) )   DRAWN & FILED BY: SEEMA AND CO. ADVOCATES P.O BOX 20514-00100,     NAIROBI, KENYA.

)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT HOMA BAY MISCELLANEOUS CRIMINAL CAUSE NO............................................................ OF 2016

IN THE MATTER OF HABEAS CORPUS FOR MALI YAMUNGU HAMADI YAMAKI                                                                    ……………………                                                                           APPLICANT

VERSUS

INSPECTOR GENERAL OF POLICE........................................................................................ RESPONDENT

 

NOTICE OF MOTION

TAKE NOTICE that this Honourable Court will be moved on the ………. day of.......................................................................................................................................... 2016 at 9.00am

or soon thereafter for the hearing of the application for ORDERS:

1.       THAT this application be certified as urgent.

2.       THAT there be and is hereby issued a writ of habeas corpus ad subjiciendum directed to the Respondent or his agents and/or representative to have the body of MALI YAMUNGU produced before the honorable Court at such time as the Judge may direct.

3.       THAT the Respondent be directed to release the applicant on bail on such terms and conditions as the Court deems fit to grant.

4.       THAT the costs of this application be provided for.

WHICH APPLICATION is supported by the annexed affidavit of HAMADI YAMAKI and is premised on the following grounds:

1.       THAT the Applicant is Mali Yamungu’s wife.

2.       THAT on 22.05.2016, Mali Yamungu was unlawfully arrested on the instructions of the National Security Council for being involved in the manufacture of improvised explosive devices that have rocked the country in the recent past.

3.       THAT Mali Yamungu has been in police custody for the last three months and has not been brought before Court to answer to any charges.

4.       THAT the police authorities are employing latest unlawful interrogation techniques on Mali Yamungu.

5.       This Hournable Court has jurisdiction to hear and determine this application. DATED at NAIROBI this ……. day of 2016.

 

SEEMA AND CO. ADVOCATES

ADVOCATES FOR THE APPLICANT

 

 

DRAWN AND FILED BY SEEMA AND CO. ADVOCATES, P.O BOX 20514-00100, NAIROBI, KENYA.

 

TO BE SERVED UPON:

THE INSPECTOR GENERAL OF POLICE

P. O. BOX 44249 – 00100, NAIROBI, KENYA.

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT HOMA BAY MISCELLANEOUS CRIMINAL CAUSE NO............................................................ OF 2016

IN THE MATTER OF HABEAS CORPUS FOR MALI YAMUNGU HAMADI YAMAKI                                                                    ……………………                                                                           APPLICANT

VERSUS

INSPECTOR GENERAL OF POLICE........................................................................................ RESPONDENT

PETITION

(Articles 21(1), 22(2)(a), 23(3), 25(d), 29(d), 49(1)(f), 51(2), of the Constitution of Kenya, 2010, Section 389(1)(b) of the Criminal Procedure Code, Cap 75, and Criminal Procedure (Directions in the Nature of Habeas Corpus) Rules, Legal Notice No.474 of 1963)

The humble Petition of HAMADI YAMAKI whose address of service for the purpose of this Petition is care of SEEMA AND CO. ADVOCATES, P.O BOX 20514-00100, NAIROBI is as follows:

A)                 THE PARTIES:

1.                   The Petitioner is an adult female of sound mind, a citizen of the Republic of Kenya and is Mali Yamungu’s wife.

2.                   The Respondent is an authority appointed under Article 245(2) of the Constitution of Kenya, 2010 and charged under Section 10 of the National Police Service, 2011 with performance of various function which, inter alia, include the investigation of any particular offence or offences, implementation of policy decisions, co-ordination of all police operations, advising the Government on policing matters and services and the enforcement of the law against any particular person or persons.

B)                  BRIEF OVERVIEW OF THE LAW AND THE GROUNDS OF THE PETITION:

3.                   The Petitioner aver that her husband had been unlawfully arrested and detained contrary to Articles 21(1), 22(2)(a), 23(3), 25(d), 29(d), 49(1)(f), 51(2), of the Constitution of Kenya, 2010, Section 389(1)(b) of the Criminal Procedure Code, Cap 75, and Criminal Procedure (Directions in the Nature of Habeas Corpus) Rules, Legal Notice No.474 of 1963.

C)                 GROUNDS AND ARGUMENTS SUPPORTING THE PETITION:

4.                   THAT the Petitioner is Mali Yamungu’s wife.

5.                   THAT on 22.05.2016, Mali Yamungu was unlawfully arrested on the instructions of the National Security Council for being involved in the manufacture of improvised explosive devices that have rocked the country in the recent past.

6.                   THAT Mali Yamungu has been in police custody for the last three months and has not been brought before Court to answer to any charges.

7.                   THAT the police authorities are employing latest unlawful interrogation techniques on Mali Yamungu.

8.                   This Hournable Court has jurisdiction to hear and determine this application

D)                 THE QUESTIONS OR ISSUES FOR DETERMINATION BY THE COURT:

The following are the questions or issues for determination as considered by the Petitioner:

9.                   Whether the arrest and detention of Mali Yamungu was conducted in accordance with and in compliance with the Constitution and the national legislations?

10.                Whether the Respondent has violated the existing law by detaining Mali Yamungu for the last three months without charging him in a Court of law?

11.                Whether the disappearance of Mali Yamungu from his village and the claims leveled against him for being an expert in the manufacture of improvised explosive devices that have rocked the country in the recent past are valid grounds for his arrest and detention?

E)                  RELIEFS SOUGHT IN THE PETITION:

12.                THAT there be and is hereby issued a writ of habeas corpus ad subjiciendum directed to the Respondent or his agents and/or representative to have the body of MALI YAMUNGU produced before the honorable Court at such time as the Judge may direct.

13.                THAT the Respondent be directed to release the applicant on bail on such terms and conditions as the Court deems fit to grant.

14.                THAT the costs of this application be provided for. DATED at ……… this ……… day of ……… 2016.

 

SEEMA AND CO. ADVOCATES

ADVOCATE FOR THE PETITIONER

 

 

DRAWN & FILED BY

SEEMA AND CO. ADVOCATES P. O. BOX 22255-00505 NAIROBI.

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT HOMA BAY MISCELLANEOUS CRIMINAL CAUSE NO............................................................ OF 2016

IN THE MATTER OF HABEAS CORPUS FOR MALI YAMUNGU HAMADI YAMAKI                                                                    ……………………                                                                           APPLICANT

VERSUS

INSPECTOR GENERAL OF POLICE........................................................................................ RESPONDENT

 

REPLYING AFFIDAVIT

 

I SAM DEORA, a resident of Kasipul-Kabondo, Homa Bay County of P. O. Box 734 – 00189, Homa Bay within the Republic of Kenya make oath and state as follows:

1.       THAT I am a Chief Inspector of Police attached at the Anti-Terrorism Police Unit (ATPU) Homa Bay County and having been part of the team that are investigating the subject herein and therefore competent to swear this affidavit on behalf of the Respondent.

2.       THAT I have read and understood the contents of the Applicant’s affidavit sworn on ……… of

……… 2016 in support of the petition sworn by HAMADI YAMAKI on ……… of ……… 2016.

3.       THAT I confirm that the subject was lawfully arrested on the instructions of the National Security Council for being involved in the manufacture of improvised explosive devices that have rocked the country in the recent past. (See, Annexture A containing instructions of the National Security Council)

4.       THAT a search was conducted at MALI YAMUNGU’s residence on 22.05.2016 and two improvised explosive devices were found.

5.       THAT prior to conducting a search at MALI YAMUNGU’s residence, a search warrant was issued by the Chief Magistrate, Homa Bay Magistrate Court. (See, Annexture B containing a search warrant issued by the Chief Magistrate, Homa Bay Magistrate Court)

6.       THAT paragraph 3 of the Applicant’s sworn affidavit is not true as the subject in question has not been in police custody for the last three months and was brought before Court to answer charges on the manufacture of improvised explosive devices (See, Annexture C containing the remand orders from Chief Magistrate, Homa Bay Magistrate Court).

7.       THAT to my knowledge, the ATPU officers do not torture, mistreat or threaten suspects but carry out their duties professionally and as such, paragraph 4 of the Applicant’s sworn affidavit alluding to any mistreatment of the suspect while in custody is denied.

8.      

Sworn at Nairobi by the said SAM DEORA on this ……… day of ………     2016 ) ) )                                                         )                           (Deponent) BEFORE ME   ) )   COMMISSIONER FOR OATHS   ) ) DRAWN & FILED BY: KARIO AND CO. ADVOCATES P.O BOX 20514-00100, NAIROBI, KENYA.

THAT what has been deponed herein is true to the best of my knowledge and belief.

 

 

 

 

)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT HOMA BAY MISCELLANEOUS CRIMINAL CAUSE NO............................................................. OF 2016

IN THE MATTER OF HABEAS CORPUS FOR MALI YAMUNGU HAMADI YAMAKI                                                                    ……………………                                                                           APPLICANT

VERSUS

INSPECTOR GENERAL OF POLICE........................................................................................................ RESPONDENT

ORDER

UPON READING the application to this Court on the ……… of.......................................................................................................................................... 2016 by the advocates for the

Applicant and supported by an affidavit of HAMADI YAMAKI sworn on …….. of......................................................................................................................................... 2016.

AND WHEREAS the application coming up for hearing on …….. of.......................................................................................................................................... 2016 before Hon. Steve Aoko

in the presence of the advocates of the applicants and in the presence of the Respondents, AND UPON HEARING the said advocate:

IT IS ORDERED:

1.       THAT there be and is hereby issued a writ of habeas corpus ad subjiciendum for the production of MALI YAMUNGU.

2.       THAT the Inspector General of police do enforce this order.

3.       THAT all parties herein concerned, should be in attendance on the said date.

GIVEN under my hand and seal of the Court this.............................................. day of..................................................................................................................... 2016.

 

 

……………………………………..

HON. STEVE AOKO

 

 

PENAL NOTICE

TAKE NOTICE that you are bound by and required to comply with the Court Orders herein given on

…….. day of.......................... 2016 by HON. STEVE AOKO J. in the above noted matter. A true copy of the said

Order is annexed herewith and served upon you for immediate and strict compliance.

TAKE FURTHER NOTICE that you are required to immediately and strictly comply with the terms of the said Order and that any person who does not comply with the said Order of the HON. STEVE AOKO

J. shall be liable for Contempt of Court which is punishable by six (6) months imprisonment with or without a fine as the Court may deem fit.

 

8.                   EXTRACTION OF THE ORDER:

·       This is done by writing to the Registrar of the High Court.

·       When the letter is stamped, it becomes a decree absolute that will be served on the judgment creditors.

 

 

 

 

 

 

 

 

TO

THE REGISTRAR OF THE HIGH COURT MILIMANI 'A,' TAIFA ROAD,

P. O. BOX 44249 – 00100, NAIROBI, KENYA.

Dear Sir/Madam,

RE:            EXTRACTION OF THE HABEAS CORPUS ORDERS CAUSE NO. 5862 OF 2015

DARC K. JOVAR ADVOCATES BRUCE HOUSE

STANDARD STREET, P.O BOX 20514-00100, NAIROBI, KENYA 25^TH AUGUST 2015

MREMBO WIMA v. INSPECTOR GENERAL OF POLICE AND DIRECTOR OF PUBLIC PROSECUTIONS

We refer to the above matter.

We attended Court on 1^st September 2015 for the hearing of our petition. All parties were present and the Judge issued an Order of Habeas Corpus. We kindly ask you to urgently extract for us the said Order issued on 1^st September 2015 in the High Court of Kenya, (Court Room 4) at Milimani.

We undertake to pay the reasonable fees charged thereof. Yours faithfully,

MAARIFA MKWELI

DARC K. JOVAR ADVOCATES

 

 

INQUESTS

1.                   INTRODUCTION:

·       The provisions relating to inquests are found in Sections 385 to 388 of the CrPC.

·       Whenever there is a sudden and unexplained death, or where a person is missing under circumstances leading to the belief that s/he may be dead, the law requires that an inquiry be conducted to determine the said question. This is referred to as an inquest.

·       A person is under obligation to immediately inform the nearest administrative or police officer: upon becoming aware of a death or discovers a body under circumstances suggestive that the deceased has:

a)       committed suicide; or

b)       been killed by another or by an accident; or

c)       died under circumstances raising a reasonable suspicion that some other person has committed an offence; or

d)       is missing and believed to be dead.

·       Police to inquire and report on suicide, murder, etc: Section 386 of the CrPC provides that Officer-in- Charge of a Police Station, or any other officer appointed by the Minister, on receiving such news shall immediately inform the nearest Magistrate empowered to hold inquests. After informing, the officer is required to:

a)       proceed to the place where the body of the deceased person is;

b)       make an investigation;

c)       draw up a report on the apparent cause of death;

d)       describing such wounds, fractures, bruises and other marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument (if any), the marks appear to have been inflicted.

The report shall in (a), (b) or (c) above must be forwarded forthwith to the nearest Magistrate empowered to hold inquests. But in the case (d), the report must immediately be sent to the DPP through the Inspector General of Police together with details of all supporting evidence relating to the circumstances surrounding the disappearance and the grounds upon which the death of that person is presumed to have taken place.

In order to determine the cause of death with a degree of precision, the Police Officer must forward the body to the nearest Medical Officer for examination.

·       Inquiry by Magistrate into cause of death: To prevent extrajudicial killings and to avoid circumstances where the police are investigating themselves where they are the primary suspects, it is mandatory under Section 387 of the CrPC for an inquest to be held by a Magistrate where a person dies in the following circumstances:

a)       while in the custody of police, or

b)       while in the custody of a prison officer, or

c)       while in a prison or

d)       in the case of a missing person believed to be dead.

Should the Magistrate consider it expedient to examine the dead body of a person already interred so as to discover the cause of death, he may cause the same to be disinterred or exhumed for the purpose.

If before or at the termination of the inquiry the Magistrate forms the opinion that some known person(s) committed an offence, he issues summons or warrant of arrest or takes such other steps as may be necessary to secure attendance to answer the charge whereupon the Magistrate commences the inquiry de novo by way of a trial. If, on the other hand, the Magistrate, at the termination of the inquiry is of the opinion that an offence has been committed by some unknown person(s), he is to record his opinion and sends a copy to the DPP. Should his opinion be that no offence has been committed, especially on missing person, he shall so record and close the inquiry.

·       Powers of DPP as to inquiries into cause of death: They include:

a)       The DPP may, at any time, direct a Magistrate to hold an inquiry, into the cause of a particular death and shall in the case of missing person believed to be dead, give such directions as he deems fit.

b)       When an inquiry has been terminated under Section 387, and it appears to the DPP that further investigation is necessary, he may direct the Magistrate to reopen the inquiry and to make further

investigation, and thereupon the Magistrate shall have full power to reopen the inquiry and make further investigation and proceed in the same manner as if the proceedings at the inquiry had not been terminated. However, where a Magistrate has recorded his opinion that the offence of murder or manslaughter has been committed by a person, such further investigations is not necessary.

c)       The DPP may also direct whether the body is to be disinterred and examined.

d)       Upon receiving an investigation report, the DPP is, after considering the recommendations of the Magistrate, direct him to make an order as to the period which should be recorded before the death is presumed and upon the expiration of such period, the Registrar-General is empowered on the production to him by the proper officer entitled to apply for and receive a grant of representation under the Law of Succession Act, Cap. 160, of a Court certified copy of the Magistrate’s order, to issue to that person an appropriate certificate of death in accordance with the Births and Deaths Registration Act, Cap.149.

EXTRADITION AND RENDITION

1.                   Extradition: It is an official process, regulated by Treaties, where a nation surrenders a suspected or convicted criminal to another country. The suspects are sought for an offence over which the requesting State wishes to exercise jurisdiction.

The extraordinary or illegal extradition can occur where:

a)       the treaty does not cover the alleged offence; or

b)       the State of refuge is unable or unwilling to prosecute the alleged offender; or

c)       due to widening reach of a State’s law in response to transnational crimes.

The extraordinary extradition is considered a violation of human rights due to actual physical abuse, violation of freedom of movement, threat to personal integrity, torture, inhuman and degrading treatment, arbitrary detention and abuse, and the right to a fair trial before an independent and impartial Court. This contravenes Articles 7 and 9 of International Covenant on Civil and Political Rights, 1966, Articles 3, 5, 8, 9 and 10 of the Universal Declaration of Human Rights, 1948 and Article 6 of the African Charter on Human and Peoples Rights, 1981 which Kenya has ratified.²⁷

2.                   Rendition: Where extradition is compelled by law, it is known as rendition. Rendition is surrender or handing over of persons or property, particularly from one jurisdiction to another. Extraordinary rendition refers to an extrajudicial procedure in which criminal suspects are sent to other countries for imprisonment and interrogation with a view to extracting information.²⁸

The High Court in Mohamed Aktar Kana v. The Attorney General²⁹ ruled that extraordinary renditions impugn the oath of office by the President to uphold and obey the Constitution, including the Bill of Rights. The Court ordered that the applicant should not be extradited to Uganda and that the President should be served with the ruling through the Office of the Secretary to the Cabinet.

3.                   Principles of extradition:

a)       There must be an identified person whose surrender is sought.

²⁷ See, Art.2(6), the Constitution of Kenya, 2010.

²⁸ Kenya has routinely carried out extraordinary renditions. Examples include the 1976 extradition of two Palestinian suspected terrorists handed over to Israel. The suspects were arrested near the Jomo Kenyatta International Airport for attempting to bomb a plane. Some terrorist attack suspects of the USA Embassy in Nairobi were extradited to USA in 1998.

²⁹ (2010) eKLR: Constitutional Application 544 of 2010.

b)       Extradition offence: The offence of which the accused is suspected to have committed must be within the terms of an existing Treaty or reciprocal agreement between the two States in question.

c)       Double criminality: The act committed should be a criminal offence in both jurisdictions.

d)       Rule of specialty: The offence(s) for which the requesting State seeks the extradition of the suspect is/are the only offence(s) for which the suspect will have to answer in the requesting State.

4.                   Sovereignty: Under international law, a State cannot exercise jurisdiction or interfere with internal and external affairs of another State under the UN Charter without consent. The law thus, preserves the principles of State sovereignty³⁰ and territorial integrity and prohibits enforcement functions, including abductions, without consent. Arrest in the territory of another State constitutes interference in the internal affairs of a State. Where there is a violation of the international law, such State may seek reparation³¹ and demand cessation and/or return of the abducted individual. However, no violation occurs where a State grants permission to the foreign agents to arrest a person within its borders.

5.                   Laws on extradition in Kenya: There are a number of laws governing extradition in Kenya, i.e.,

a)       The Constitution of Kenya, 2010: Article 2 (6) of the Constitution provides that any Treaty or Convention ratified by Kenya shall be part of the laws of Kenya. Article 157 establishes the Office of Director of Public Prosecutions. The DPP has the power to direct the Inspector General of Police to investigate any information or allegation of criminal conduct including those that may lead to a request for extradition through diplomatic channels. Whenever an extradition request is received, the DPP is the one to commence proceedings for extradition orders. Prior to the promulgation of the Constitution 2010, all prosecutorial functions and all those related to the conduct of a request for extradition were carried out by the office of the Attorney-General. Since extradition proceedings are “criminal proceedings of a very special kind”, the Kenyan laws still give the Attorney General a central role in the proceedings instead of the DPP. The two extradition Statutes above (‘a’ and ‘b’) make provisions on the conditions which must be satisfied before a request for extradition can be granted:

i.             A request for surrender may be denied if it appears to the Court or the Attorney General, that the alleged offender would, if charged with that offence in Kenya, be entitled to discharge under any rule of law relating to the previous acquittal or conviction.

ii.            Extradition cannot be granted if the Minister is of the opinion the offence is one of a political character.

b)       The Extradition (Contiguous and Foreign Countries) Act, Cap 76: The Act consolidates the law concerning the extradition of offenders and related matters, where Kenya has an agreement with a non-Commonwealth country.

c)       The Extradition (Commonwealth Countries) Act, Cap 77: The Act make provisions for Kenya to surrender to other Commonwealth countries on a reciprocal basis persons accused or convicted of offences in those countries.

d)       The Fugitive Offenders Pursuit Act, Cap 87: The Act authorises the police of Uganda and Tanzania to pursue within Kenya offenders fugitive from those countries where there are reciprocal arrangements with

³⁰ Sovereignty denotes the authority of a State over persons within its borders.

³¹ Reparation means the making of amends for a wrong one has done by paying money to or otherwise helping those who have been wronged.

Kenya. It is a requirement under this law that any person arrested pursuant to this Act must be delivered to a Magistrate with a view to being surrendered to Uganda or Tanzania.

e)       The East African Community Treaty, 1999: Article 124(5) of the Treaty provides that partner States can agree to enhance co-operation in the handling of cross border crime, provision of mutual assistance in criminal matters including the arrest and repatriation of fugitive offenders.

6.                   Cross border crimes: There is an established but unofficial cooperation between East Africa States to exchange criminals without compliance with extradition laws since the establishment of the EAC in 1967. This has led to violation of the rights of the citizens. However, Tanzania has refused to extradite a suspect it is holding over the July 11, 2010 Kampala bombings without compliance with the law. International law requires that such cooperation must be defined by law clearly to ensure the rights of suspects are respected. The applicable law is the Extradition (Commonwealth Countries) Act, Cap 77. A ‘fugitive’ under the Act is defined as any person who is in Kenya and whose surrender is requested under the Act on the ground that he is accused of an offence or has been convicted of an extradition offence committed within the jurisdiction of the requesting State. Such offence:

a)       must be an offence punishable by imprisonment for more than 12 months;

b)       should not be of a political character, and

c)       the fugitive should not have been previously acquitted or convicted nor punished on the basis of race, religion, nationality or political opinions.

The request should be issued by the Attorney General on behalf of the requesting Government accompanied by an ‘overseas warrant of arrest’ and a ‘certificate of conviction or sentence.’ Before the warrant of arrest is issued, the Court must be satisfied that an extraditable offence has been committed by the fugitive in the requesting State.

The fugitive must be taken to Court promptly after arrest. S/he has a right to apply for habeas corpus. The Court shall issue a notice of committal to the Attorney General. The fugitive cannot be surrendered before the expiry of 15 days from the date of arrest. On appeal, the High Court may discharge the fugitive due to:

a)       the trivial nature of the offence;

b)       passage of time between the request and the conviction, and

c)       if the application is not made in good faith.

Extradition cannot proceed where there is failure to fulfill dual criminality, i.e., the offence must be an offence in the country of refuge and the requesting State.

States prefer to hold trials for their citizens rather than extradite them to foreign countries.

7.                   Illustration: The Government of Kenya had extradited 13 Kenyans to face terrorism charges in Uganda over the July 11 Kampala bombings. The correct procedure would have been that the Ugandan Government should have issued a warrant of arrest and communicated its intention to Kenya. This was to be done through the Ugandan High Commission which would then inform the Attorney General who would take the matter to the Magistrates’ Courts. It would be up to the Magistrate’s Court to determine whether or not Kenya would accept or decline the request by Uganda. The Court would then determine whether:

a)       the Kenyans would stand a fair trial in Uganda, and

b)       the crimes preferred against them are in accordance with the Extradition Act.³²

It would take 15 days for Kenya to determine what action to take. When Kenya gets a copy of the warrant of arrest, it will hold the suspected Kenyans for 15 days pending further investigation.

Since it can be opined that the suspects illegally extradited to Uganda, they are entitled to:

a)       claim damages from the Government of Kenya since there is a glaring failure on the part of the Government to accord with the law;

b)       seek declaratory orders that their rights have been infringed with the consent and acquiescence of the Government;

c)       seek declarations and payment of reparations to the families.

If the Inspector General of police disobeys the orders of the Court not to extradite the suspects, contempt of Court proceedings can be filed against him.

2.               Gilbert Deya case: Deya, a controversial preacher was extradited to Kenya from Britain. The case is popularly referred to as 'miracle babies' saga. He was accused of stealing five babies and passing them off to the UK between 1999 and 2004 and lying to infertile couples that he could give them 'miracle babies.'

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

³² There are 22 crimes which a person can be extradited i.e.,: murder, manslaughter, kidnapping, bigamy, assault rape, offenses committed at the sea, counterfeit, fraud, and arson.

JUDICIAL REVIEW

1.                   INTRODUCTION:

·       The origin and development of the doctrine of judicial review is the American Supreme Court (1803), although there is no express provision in the American Constitution for the judicial review.

·       In Marbury v. Madison,¹ the U. S. Supreme Court specifically claimed it had the power of judicial review and it could review the Constitutionality of the Acts passed by the Congress.²

·       The power of judicial review is unequivocally rooted and has explicit sanction in the new COK.³ The constitution has created an independent judiciary which is vested with among other powers, the power of judicial review to determine the legality of administrative actions and the validity of legislations.⁴

·       The Law: Judicial review is exercised pursuant to Articles 23(3)(f) and 47 of the Constitution of Kenya, 2010, Section 8 and 9 of the Law Reform Act, Cap 26; and the Fair Administrative Act, 2015 and Order 53 of the Civil Procedure Rules, 2010.

2.                   CONCEPT AND MEANING OF THE TERM ‘JUDICIAL REVIEW’:

·       Judicial review primarily refers to the authority of the Court to:

a)       review both the constitutionality or validity of legislative Acts;

b)       pass upon the constitutionality or validity of executive and administrative acts⁵ and to disregard or direct the disregard of such Acts as are held to be unconstitutional or violative of applicable Statutes in order to uphold the rule of law.⁶

·       In Republic v. The Judicial Service Commission & Another ex-parte Joyce Manyasi,⁷ Justice W. K. Korir has also held that the purpose of judicial review is mainly to ensure that public bodies do not abuse their powers and officials perform their functions in good faith, without malice and in accordance with the law.

3.                   GROUNDS FOR JUDICIAL REVIEW:

In Council of Civil Service Union,⁸ Lord Diplock has suggested the following three-fold classification of the various grounds on which an administrative decision can be reviewed by a Court:

i)        Irrationality: Irrationality denotes unreasonableness in the sense of Wednesbury unreasonableness principle in that it applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person in his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges squarely need to answer after sensibly determining that the claimant is able to provide a strong clear case.

ii)       Procedural impropriety: Procedural impropriety refers to failure of the decision making authority to observe procedural rules including rules of natural justice or fairness wherever they are applicable. For e.g.,

¹ 1 Cranch 137: 2 L Ed 60.

² Faiz Pan Mohamad, ‘General Principle of Judicial Review on Administrative Action in Indian Legal System’ Law Journal, 20^th September 2007.

³ See, for e.g., Arts.2, 20, 23, 47 & 163 of the Constitution of Kenya, 2010. The High Courts in Kenya also have powers of judicial review arising from an Acts of Parliament namely, the Law Reform Act, Cap 26, Administration of Justice (Miscellaneous Provisions) Act, 1938, and the supporting Order LIII of the Civil Procedure Rules, Cap 21.

⁴ Chapter Ten, the Constitution of Kenya, 2010.

⁵ Sathe S. P., ‘Judicial Activism: The Indian Experience,’ Washington University Journal of Law & Policy, Volume 6, [2001] p.39.

⁶ Gichira Kibara, ‘Reforming the Judiciary: Responsiveness and Accountability of the Judiciary,’ A study under the auspices of the Friedrich Ebert Stiftung (FES) and University of Nairobi’s Department of Political Science & Public Administration, Occasional Paper Series, Nairobi, presented at the FES and UoN workshop, Nairobi Safari Club, November 2011.

⁷ (2012) eKLR.

⁸ Council of Civil Service Union v. Minister for Civil Services, (1985) 1 AC 374.

·       Failure to give each party to a dispute an opportunity to be heard: A competent authority is mandated to give each party to the dispute a fair opportunity to put their case.

·       Bias: Any sign of bias on the part of the competent authority may call for judicial intervention. Generally, bias arises if a person is a relative of one of the parties, or has had a past professional association with one of the parties.

·       Failure to consult properly: It has been observed that for consultation to be held proper adequate time must be given for the purpose and the product of consultation must be consciously taken into account when the ultimate decision is taken.

·       Failure to give adequate reasons: The duty to give reasons principally arises where it is expressly required in legislation; where it is called for in fairness, under the duty of candour owed by a body under challenge and where a response which is unreasoned may be seen as unreasonable. Where there is a call to give reasons, a body is obliged to give reasons which are proper, adequate and intelligible to enable the persons affected to know why they have won or lost.

·       Legitimate expectation: The doctrine of legitimate expectation arises where a public body has made a promise of a benefit, and it then goes back on this promise. Such promise amount to an abuse of power and thus calls for judicial intervention. It therefore derives from need to secure certainty and predictability in executive actions.

iii)     Illegality: The authority making decisions is required to understand correctly the law that regulates his/her decision-making power and must therefore, give effect to it by ensuring that his decisions are within his/her legal power.⁹ Illegality thus, arise as follows:

·       When the decision-maker acts ultra vires: A decision-maker acts ultra vires if he acts beyond his prescribed powers, or where he does not follow a particular procedure already prescribed in a Statute, etc. The police and other competent authorities in the criminal justice system should exercise their powers within the confines of the law. Every exercise of power by such authorities that derogates from legislative intent is considered ultra vires. There are two types of ultra vires:

i.         Substantive ultra vires: It is where an authority has done or decides to do an act knowing that it lacks legal capacity or lawful jurisdiction to do it;

ii.       Procedural ultra vires: It is where an authority authorized to do something, while doing it, it fails to meet some requirement attached to the lawful exercise of the power

·       Unlawfully delegating power or fettering discretion: Where a legislation confers power on a specified individual or body, the power cannot be delegated to another person or body.¹⁰

·       Irrelevant considerations: A claim for judicial review can also lie where a competent authority has either disregarded a relevant consideration, or taken into account an irrelevant consideration when reaching a decision.

·       Abuse of power: This can take the form of failure to exercise power, or exercising power for improper purpose, etc.

 

⁹ Captain Geoffrey Kujoga Murungi v. Attorney General, Misc Civil App. No. 293 of 1993.

¹⁰ Lumumba P. L. O., An Outline of Judicial Review in Kenya 58-83, (University of Nairobi, 1999).

·       Unlawfully delegating power or fettering discretion: Where a legislation confers power on a specified individual or body, the power cannot be delegated to another person or body.

·       Bad faith: Powers vested in competent authority must be exercised in good faith. A decision that results from an exercise of power in bad faith is unfair and lends itself to being quashed by certiorari. For instance, ill motives actuated a public officer to do an illegal act.

·       Error of law or on the fact of record: It can also lead to judicial review.

·       Natural justice: Failure of an authority to follow principles of natural justice.

·       Proportionality: This seeks to strike a balance between adverse effects of an administrative action/decision has on rights and liberties of individual and public interest.¹¹

4.                   JUDICIAL REVIEW ORDERS:

Judicial review is used for seeking:

a)       a mandatory order (i.e., an order requiring a public body to do something, also known as an order of

mandamus); or

b)       a prohibiting order (i.e., an order preventing the public body from doing something, also known as an order of prohibition) i.e., the High Court   can direct an inferior Court or Tribunal or body from acting in excess of jurisdiction, or in contravention of the law; or

c)       a quashing order (i.e., an order quashing the public body’s decision, also known as an order of

certiorari) i.e., decisions of an inferior Court and Tribunal; or

d)       a declaration and/or damages.

5.                   ILLUSTRATION:

The Director of Public Prosecutions, Madam Winnie Mutali lives in Karen View Estate, Kajiado County (also known as Gate D Estate). In 1982 while undertaking her studies at the Kenya School of Law, Madam Winnie gave birth to a baby boy. The boy was named Bonfesc Mutegi Mutali, now aged 34 years.

On 23^rd May 2012 at the said Estate, Bonfesc Mutegi fought his neighbour’s son, one Salim O’kubasu. It is reported that the fight was triggered by a quarrel the two had at a local bar called ‘The Galaxy’ over the English Premier League results. It was reported that Bonfesc Mutegi’s team, Arsenal Footbal Club, conceded 8 ‘painful’ goals from their perennial rivals Manchester United Football Club. After the football match loss, O’kubasu is said to have loudly celebrated the victory team, Manchester United to the chagrin of Bonfesc. It is at this point that Bonfesc aimed a bottle of a drink called Yokozuna at O’kubasu’s head missing it by a whisker. He (Bonfesc) then lurched at O’kubasu and wrestled him to the ground. O’kubasu, an active and practising martial arts guru disentangled himself from Bonfesc’s grip and gave him what was described by an eye witness as ‘a thorough beating.’

The DPP was infuriated to learn that although his son started the fight, he appeared not to have been ‘man enough’ because he was humiliated by the beating at the hands of O’kubasu, in self-defence. The DPP promised to teach O’kubasu an unforgettable lesson on what she called ‘how to respect children of those who matter in the society.’

On 24^th of May 2015, O’kubasu’s father one Watson Kingori and his mother, one Ms. Brenda Yusuf were arrested on the DPP’s instructions allegedly for failing to teach their son ‘good manners.’ They were whisked away and locked up at Rongai Police Station.

On 26^th May 2015, they were charged in Court in Kibera before the Chief Magistrate for creating disturbance in Karen View Estate on 23^rd May 2015 contrary to Section 95 of the Penal Code, Cap 63. Particulars of the offence read that on 23^rd May 2015 at The Galaxy Bar at Karen View Estate in Kajiado County, they allowed their son to engage in a fight with Bonfesc which resulted in a breach of peace.

Their defence counsel, the flamboyant Mr. Res Ipsa Loquitor applied and obtained copies of all documents of the prosecution’s file. By sheer coincidence and mistake, the DPP’s note of instructions to the State Counsel was availed to the defence. In the said instruction note, the DPP had laid it out clearly to the

¹¹ Kanyingi v. TLB, Misc. Civil App. 1214/04.

prosecuting State Counsel. The prosecuting counsel was supposed to punish the accused persons for the alleged bad manners of their son. At paragraph two of the said memo, the DPP told the prosecuting State Counsel that she had no evidence at all as the offence actually never took place.

 

Draft the necessary judicial review papers to protect Mr. Watson Kingori and Ms. Brenda Yusuf.

 

ANSWER:

The following are the required documents:

a)       Certificate of urgency: It helps to jump the que. It must not only bring out the urgency of the matter but should also be brief and clearly state the grounds of urgency.

b)       Chamber summons: It must have four principle prayers: i) Ask the Court to certify the application as urgent; ii) Ask the Court to grant leave for the applicant to apply for judicial review orders i.e., certiorari;

iii) Leave granted to operate as a stay i.e., for order of arrest; iv) Costs to be granted.

c)       Verifying affidavit: It verifies the grounds for adducing evidence. Such evidence should be attached i.e.,

Gazette Notice, Letters issued by an officer. It must be exhaustive.¹²

d)       Statutory statement: It has four parts: i) Description of applicants; ii) Description of respondents; iii) Relief sought (same reliefs in Chamber Summons); d) Grounds upon which the application is founded.

e)       Notice of motion: Applicants are the Republic v. XYZ (ex parte the petitioner). It contains the reliefs sought (same reliefs in Chamber Summons)

 

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI MILIMANI LAW COURTS

(CONSTITUTIONAL & HUMAN RIGHTS DIVISION) MISCELLANEOUS APPLICATION NO …… OF 2015

 

BETWEEN

MR. WATSON KINGORI AND MS. BRENDA YUSUF......................................................................................................... PETITIONERS

VERSES

DIRECTOR OF PUBLIC PROSECUTIONS........................................................................................................................... 1^ST RESPONDENT

CHIEF MAGISTRATE, KIBERA COURT.......................................................................................................................... 2^ND RESPONDENT

INSPECTOR GENERAL.......................................................................................................................... 3^RD RESPONDENT

 

(Pursuant to Articles 23(3)(f) and 47 of the Constitution of Kenya, 2010, Section 8 and 9 of the Law Reform Act, Cap 26; and the Fair Administrative Act, 2015 and Order 53 of the Civil Procedure Rules, 2010)

 

CERTIFICATE OF URGENCY

I, MR. RES IPSA LOQUITOR, an Advocate of the High Court of Kenya practising as such in the Firm of RES IPSA & COMPANY ADVOCATES who have the conduct of this matter on behalf of the Petitioner do hereby certify that the application filed herewith is urgent and should be heard as soon as practicably possible for the following reasons:

1.     THAT the Petitioners have been wrongfully and unlawfully arrested and charged for creating disturbance in Karen View Estate on 23^rd May 2015 contrary to Section 95 of the Penal Code, Cap 63.

2.     THAT the Petitioners have been wrongfully and unlawfully arrested and charged for allowing their son to engage in a fight with Bonfesc which resulted in a breach of peace.

3.     THAT the Respondent does not have credible evidence to prosecute the Petitioners.

4.     THAT the alleged offence against the Petitioners actually never took place.

5.     THAT the petitioners may be charged and convicted in a Court in Kibera before the Chief Magistrate of the offence that they did not commit.

6.     THAT the arrest and charging of the Petitioners is ill motivated.

In the meantime the Petitioners beseech the Honourable Court to restrain the Respondent from further instructing the State Counsel to proceed with prosecuting the matter before the Court in Kibera. The grant of the said orders is absolutely essential for the preservation of the rule of law and the democratic constitutional order in Kenya.

 

DATED at NAIROBI this 26^th day of May 2015.¹³

¹² Certificate of Urgency, Chamber summons and Verifying affidavit are granted upon issuance of the leave of the Court.

(Signature is very important)

RES IPSA & COMPANY ADVOCATE

ADVOCATES FOR THE PETITIONERS

 

(Signature is very important)

DRAWN AND FILED BY

RES IPSA & COMPANY ADVOCATE QUEENSWAY HOUSE, 5^TH FLOOR, KAUNDA STREET,

P.O. BOX 29871-00202, NAIROBI.

 

 

TO BE SERVED UPON:

A)     DIRECTOR OF PUBLIC PROSECUTIONS

KAREN VIEW ESTATE, KAJIADO COUNTY, KAJIADO.

B)      CHIEF MAGISTRATE, KIBERA COURT

KIBERA LAW COURTS, NAIROBI.

C)     INSPECTOR GENERAL

POLICE HEADQUARTERS, KENYATTA AVENUE ROAD, NAIROBI.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

¹³ The Date and Signature must be in all documents.

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI MILIMANI LAW COURTS

(CONSTITUTIONAL & HUMAN RIGHTS DIVISION) MISCELLANEOUS APPLICATION NO …… OF 2015

 

BETWEEN

MR. WATSON KINGORI AND MS. BRENDA YUSUF......................................................................................................... PETITIONERS

VERSES

DIRECTOR OF PUBLIC PROSECUTIONS........................................................................................................................... 1^ST RESPONDENT

CHIEF MAGISTRATE, KIBERA COURT.......................................................................................................................... 2^ND RESPONDENT

INSPECTOR GENERAL.......................................................................................................................... 3^RD RESPONDENT

 

(Pursuant to Articles 23(3)(f) and 47 of the Constitution of Kenya, 2010, Section 8 and 9 of the Law Reform Act, Cap 26; and the Fair Administrative Act, 2015 and Order 53 of the Civil Procedure Rules, 2010)

 

CHAMBER SUMMONS

(Pursuant to Articles 23(3)(f) and 47 of the Constitution of Kenya, 2010, Section 8 and 9 of the Law Reform Act, Cap 26; and the Fair Administrative Act, 2015 and Order 53 of the Civil Procedure Rules, 2010)

LET ALL PARTIES CONCERNED attend the Honourable Judge in Chambers on the ……. day of............................................................................................................................................................... 2015 at

9.00  O'clock in the forenoon or soon thereafter as counsel for the Petitioners may be heard for ORDERS:

1.       THAT this application be certified as urgent.

2.       THAT leave be granted to the Petitioners to apply for an order of CERTIORARI to remove into this Honourable Court and quash the decision of the 1^ST RESPONDENT dated 24/05/2015 to have the Petitioners wrongfully and unlawfully arrested and charged.

3.       THAT leave be granted to the Petitioners to apply for an order of CERTIORARI against the 2^ND RESPONDENT to quash the proceedings pending before the Court including the charge sheet.

4.       Leave be granted to the Petitioners to apply for an order of PROHIBITION to forbid the 2^ND RESPONDENT from continuing from the proceedings.

5.       Leave be granted to the Petitioners to apply for an order of PROHIBITION to forbid the 3^RD RESPONDENT from arresting the Petitioners.

6.       The leave so granted do operate as a stay of continuation of proceedings.

7.       The costs of this application be provided for.

WHICH APPLICATION is based upon the grounds set out in the Statutory Statement filed together with the Verifying Affidavit of MR. WATSON KINGORI AND MS. BRENDA YUSUF and upon such other and further grounds as may be adduced at the hearing hereof.

Dated at Nairobi this ……… day of....................................... 2015.

 

(Signature is very important)

RES IPSA & COMPANY ADVOCATE

ADVOCATES FOR THE PETITIONERS

 

(Signature is very important)

DRAWN AND FILED BY

RES IPSA & COMPANY ADVOCATE QUEENSWAY HOUSE, 5^TH FLOOR, KAUNDA STREET,

P.O. BOX 29871-00202, NAIROBI.

 

 

TO BE SERVED UPON:

A)     DIRECTOR OF PUBLIC PROSECUTIONS

KAREN VIEW ESTATE, KAJIADO COUNTY, KAJIADO.

B)      CHIEF MAGISTRATE, KIBERA COURT

KIBERA LAW COURTS, NAIROBI.

C)     INSPECTOR GENERAL

POLICE HEADQUARTERS, KENYATTA AVENUE ROAD, NAIROBI

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI MILIMANI LAW COURTS

(CONSTITUTIONAL & HUMAN RIGHTS DIVISION) MISCELLANEOUS APPLICATION NO …… OF 2015

 

BETWEEN

MR. WATSON KINGORI AND MS. BRENDA YUSUF......................................................................................................... PETITIONERS

VERSES

DIRECTOR OF PUBLIC PROSECUTIONS........................................................................................................................... 1^ST RESPONDENT

CHIEF MAGISTRATE, KIBERA COURT.......................................................................................................................... 2^ND RESPONDENT

INSPECTOR GENERAL.......................................................................................................................... 3^RD RESPONDENT

 

(Pursuant to Articles 23(3)(f) and 47 of the Constitution of Kenya, 2010, Section 8 and 9 of the Law Reform Act, Cap 26; and the Fair Administrative Act, 2015 and Order 53 of the Civil Procedure Rules, 2010)

 

VERIFYING AFFIDAVIT

(Pursuant to Articles 23(3)(f) and 47 of the Constitution of Kenya, 2010, Section 8 and 9 of the Law Reform Act, Cap 26; and the Fair Administrative Act, 2015 and Order 53 of the Civil Procedure Rules, 2010)

 

I, MR. WATSON KINGORI, of Karen View Estate, P.O. Box 1672, Kajiado, Kajiado County, within the Republic of Kenya, do hereby make oath and state as follows:

1.       THAT I am the Petitioner herein with the knowledge of the facts attending to this matter hence, competent to swear this affidavit.

2.       THAT the application relates to the enjoyment of fundamental rights and freedoms secured and guaranteed by the Constitution of Kenya, 2010.

3.       THAT the facts stated establish a sufficient case with a high possibility of success in respect to the Petitioners’ claims, and that further there is an overarching requirement of justice that the orders sought be granted.

4.       THAT Madam Winnie Mutali, the Director of Public Prosecutions is my neighbour at Karen View Estate, Kajiado County.

5.       THAT Mr. Bonfesc Mutegi Mutali is a son to Madam Winnie Mutali.

6.       THAT Mr. Salim O’kubasu is my biological son.

7.       THAT on 23^rd May 2012 at Karen View Estate, Mr. Bonfesc Mutegi fought with my son Salim O’kubasu.

8.       THAT the fight was triggered by a quarrel between the two (Salim O’kubasu and Bonfesc Mutegi Mutali) at a local bar called ‘The Galaxy’ over the English Premier League results.

9.       THAT Bonfesc Mutegi’s was the first to trigger the fight by aiming a bottle of a drink called Yokozuna at O’kubasu’s head missing it by a whisker and by lurching at O’kubasu and wrestling him to the ground.

10.    THAT Mr. O’kubasu acted in self-defence.

11.    THAT the Director of Public Prosecutions was humiliated by the beating at the hands of O’kubasu, in self- defence and promised to teach O’kubasu an unforgettable lesson on what she called ‘how to respect children of those who matter in the society.’

12.    THAT on 24^th of May 2015, my wife, Ms. Brenda Yusuf and I were wrongfully arrested by the Rongai police on the Director of Public Prosecutions’ instructions allegedly for failing to teach our son ‘good manners.’

13.    THAT on 26^th May 2015, we were charged in Court in Kibera before the Chief Magistrate for creating disturbance in Karen View Estate on 23^rd May 2015 contrary to Section 95 of the Penal Code, Cap 63.

14.    THAT immediately after our arrest, we contacted our counsel Mr. Res Ipsa Loquitor and instructed him to proceed with the matter.

15.    THAT Mr. Res Ipsa Loquitor thereafter applied and obtained copies of all documents of the prosecution’s file.

16.    THAT by sheer coincidence and mistake, the Director of Public Prosecutions’ note of instructions to the State Counsel was availed to the defence.

17.    THAT in the said instruction note, the Director of Public Prosecutions had clearly instructed the prosecuting State Counsel to punish us for the alleged bad manners of our son. (See, annexure 1)

18.    THAT in Paragraph Two of the said note, the Director of Public Prosecutions had informed the prosecuting State Counsel that she had no evidence at all as the offence actually never took place.

19.    THAT I have read, had it explained to me and understood the contents of, and do hereby confirm the factual contents thereof as correct.

20.    THAT I swear this Affidavit in good faith and in support of the Notice of Motion application herein

21.    THAT the facts deponed herein are true to the best of my knowledge.

 

 

SWORN AT NAIROBI                                                                           )

By the said Mr. Watson Kingori                                                               )                                                                                                            …………………………………..

This …….. day of ……… 2015                                                                )                 Deponent

)

BEFORE ME                                                                                        )

)

COMMISSIONER FOR OATHS                                                             )

 

 

(Signature is very important)

DRAWN AND FILED BY

RES IPSA & COMPANY ADVOCATE QUEENSWAY HOUSE, 5^TH FLOOR, KAUNDA STREET,

P.O. BOX 29871-00202, NAIROBI.

 

 

(Signature is very important)

TO BE SERVED UPON:

A)     DIRECTOR OF PUBLIC PROSECUTIONS

KAREN VIEW ESTATE, KAJIADO COUNTY, KAJIADO.

B)      CHIEF MAGISTRATE, KIBERA COURT

KIBERA LAW COURTS, NAIROBI.

C)     INSPECTOR GENERAL

POLICE HEADQUARTERS, KENYATTA AVENUE ROAD, NAIROBI.

 

 

N.B:

In Civil, the Verifying Affidavit is short because of the Witness Statements.

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI MILIMANI LAW COURTS

(CONSTITUTIONAL & HUMAN RIGHTS DIVISION) MISCELLANEOUS APPLICATION NO …… OF 2015

 

BETWEEN

MR. WATSON KINGORI AND MS. BRENDA YUSUF......................................................................................................... PETITIONERS

VERSES

DIRECTOR OF PUBLIC PROSECUTIONS........................................................................................................................... 1^ST RESPONDENT

CHIEF MAGISTRATE, KIBERA COURT.......................................................................................................................... 2^ND RESPONDENT

INSPECTOR GENERAL.......................................................................................................................... 3^RD RESPONDENT

 

(Pursuant to Articles 23(3)(f) and 47 of the Constitution of Kenya, 2010, Section 8 and 9 of the Law Reform Act, Cap 26; and the Fair Administrative Act, 2015 and Order 53 of the Civil Procedure Rules, 2010)

 

STATUTORY STATEMENT

(Pursuant to Articles 23(3)(f) and 47 of the Constitution of Kenya, 2010, Section 8 and 9 of the Law Reform Act, Cap 26; and the Fair Administrative Act, 2015 and Order 53 of the Civil Procedure Rules, 2010)

 

NAMES AND DESRIPTION OF THE PARTIES

1.       The Petitioners are:

a)       MR. WATSON KINGORI, a male adult of sound mind residing and working for gain in Kajiado County, Kenya. The Petitioner's address of service for purposes of this matter shall be C/o Res Ipsa & Company Advocate, Queensway House, 5^th Floor, Kaunda Street, P.O. BOX 29871-00202, Nairobi.

b)       MS. BRENDA YUSUF, a female adult of sound mind residing and working for gain in Kajiado County, Kenya. The Petitioner's address of service for purposes of this matter shall be C/o Res Ipsa & Company Advocate, Queensway House, 5^th Floor, Kaunda Street, P.O. BOX 29871-00202, Nairobi.

2.       The Respondent is:

a)       MS. WINNIE MUTALI, a female adult of sound mind residing and working for gain in Nairobi, Kenya. The Respondent's address of service for purposes of this matter shall be Karen View Estate, Kajiado County, Kajiado.

 

RELIEFS SOUGHT

1.       THAT this application be certified as urgent.

2.       THAT leave be granted to the Petitioners to apply for an order of CERTIORARI to remove into this Honourable Court and quash the decision of the 1^ST RESPONDENT dated 24/05/2015 to have the Petitioners wrongfully and unlawfully arrested and charged.

3.       THAT leave be granted to the Petitioners to apply for an order of CERTIORARI against the 2^ND RESPONDENT to quash the proceedings pending before the Court including the charge sheet.

4.       Leave be granted to the Petitioners to apply for an order of PROHIBITION to forbid the 2^ND RESPONDENT from continuing from the proceedings.

5.       Leave be granted to the Petitioners to apply for an order of PROHIBITION to forbid the 3^RD RESPONDENT from arresting the Petitioners.

6.       The leave so granted do operate as a stay of continuation of proceedings.

7.       The costs of this application be provided for.

 

GROUNDS UPON WHICH RELIEFS ARE SOUGHT

1.       THAT the Petitioners have been wrongfully and unlawfully arrested and charged for creating disturbance in Karen View Estate on 23^rd May 2015 contrary to Section 95 of the Penal Code, Cap 63.

2.       THAT the Petitioners have been wrongfully and unlawfully arrested and charged for allowing their son to engage in a fight with Bonfesc which resulted in a breach of peace.

3.       THAT the Respondent does not have credible evidence to prosecute the Petitioners.

4.       THAT the alleged offence against the Petitioners actually never took place.

5.       THAT the petitioners may be charged and convicted in a Court in Kibera before the Chief Magistrate of the offence that they did not commit.

6.       THAT the arrest and charging of the Petitioners is ill motivated.

Dated at Nairobi this ……… day of ……… 2015.

 

(Signature is very important)

RES IPSA & COMPANY ADVOCATE

ADVOCATES FOR THE PETITIONERS

 

(Signature is very important)

DRAWN AND FILED BY

RES IPSA & COMPANY ADVOCATE QUEENSWAY HOUSE, 5^TH FLOOR, KAUNDA STREET,

P.O. BOX 29871-00202, NAIROBI.

 

 

TO BE SERVED UPON:

A)     DIRECTOR OF PUBLIC PROSECUTIONS

KAREN VIEW ESTATE, KAJIADO COUNTY, KAJIADO.

B)      CHIEF MAGISTRATE, KIBERA COURT

KIBERA LAW COURTS, NAIROBI.

C)     INSPECTOR GENERAL

POLICE HEADQUARTERS, KENYATTA AVENUE ROAD, NAIROBI

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI MILIMANI LAW COURTS

(CONSTITUTIONAL & HUMAN RIGHTS DIVISION) MISCELLANEOUS APPLICATION NO …… OF 2015

 

BETWEEN

REPUBLIC......................................................................................................... PETITIONERS

VERSES

DIRECTOR OF PUBLIC PROSECUTIONS........................................................................................................................... 1^ST RESPONDENT

CHIEF MAGISTRATE, KIBERA COURT.......................................................................................................................... 2^ND RESPONDENT

INSPECTOR GENERAL.......................................................................................................................... 3^RD RESPONDENT

(EX-PARTE MR. WATSON KINGORI AND MS. BRENDA YUSUF)

 

(Pursuant to Articles 23(3)(f) and 47 of the Constitution of Kenya, 2010, Section 8 and 9 of the Law Reform Act, Cap 26; and the Fair Administrative Act, 2015 and Order 53 of the Civil Procedure Rules, 2010)

 

NOTICE OF MOTION

(Pursuant to Articles 23(3)(f) and 47 of the Constitution of Kenya, 2010, Section 8 and 9 of the Law Reform Act, Cap 26; and the Fair Administrative Act, 2015 and Order 53 of the Civil Procedure Rules, 2010)

 

TAKE NOTICE that pursuant to leave granted by this Honourable Court on ………. day of........................................................................................................................................................... 2015, this

Honourable Court will be moved on the …….. day of …….. 2015 at 9.00 O'clock in the forenoon or as soon thereafter by the Applicant for ORDERS:

1.       THAT this application be certified as urgent.

2.       THAT leave be granted to the Petitioners to apply for an order of CERTIORARI to remove into this Honourable Court and quash the decision of the 1^ST RESPONDENT dated 24/05/2015 to have the Petitioners wrongfully and unlawfully arrested and charged.

3.       THAT leave be granted to the Petitioners to apply for an order of CERTIORARI against the 2^ND RESPONDENT to quash the proceedings pending before the Court including the charge sheet.

4.       Leave be granted to the Petitioners to apply for an order of PROHIBITION to forbid the 2^ND RESPONDENT from continuing from the proceedings.

5.       Leave be granted to the Petitioners to apply for an order of PROHIBITION to forbid the 3^RD RESPONDENT from arresting the Petitioners.

6.       The leave so granted do operate as a stay of continuation of proceedings.

7.       The costs of this application be provided for.

 

WHICH APPLICATION is based upon the grounds set out in the Statutory Statement and the Verifying Affidavit of MR. WATSON KINGORI sworn on ……… accompanying the application for leave dated ………

and on such other grounds as may be adduced at the hearing hereof.

Dated at Nairobi this............................. day of.................... 2015.

 

 

(Signature is very important)

RES IPSA & COMPANY ADVOCATE

ADVOCATES FOR THE PETITIONERS

 

 

(Signature is very important)

DRAWN AND FILED BY

RES IPSA & COMPANY ADVOCATE QUEENSWAY HOUSE, 5^TH FLOOR, KAUNDA STREET,

P.O. BOX 29871-00202, NAIROBI.

TO BE SERVED UPON:

A)     DIRECTOR OF PUBLIC PROSECUTIONS

KAREN VIEW ESTATE, KAJIADO COUNTY, KAJIADO.

B)      CHIEF MAGISTRATE, KIBERA COURT

KIBERA LAW COURTS, NAIROBI.

C)     INSPECTOR GENERAL

POLICE HEADQUARTERS, KENYATTA AVENUE ROAD, NAIROBI

 

(If any party served does not appear at the time and place above mentioned, such orders will be made and proceedings taken as the Court may think just and expedient)