CRIMINAL PROCEDURE
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CRIMINAL PROCEDURE
INTRODUCTION
Criminal procedure is the process through which substantive penal laws are applied
to achieve their general purpose. It is the bringing to trial those suspected of criminal
activities and the process therein from arrest to sentencing.
CP ensures that a defendant receives due process and their constitutional rights are
protected. CP must be fair efficient and effective. It must avoid delays and mistakes
in legal process. It is the framework of laws and rules that govern the administration
of justice in cases involving an individual accused of a crime beginning with the initial
investigation of a crime and concluding with acquittal or conviction.
CP provides safeguards against the indiscriminate application of criminal laws and
the wanton treatment of suspected criminals. It is designed to enforce constitutional
rights of criminal suspects from arrests, investigations, trial, sentencing and appeals.
In essence CP are seen as the secondary rules(procedure) whilst criminal law is seen
as primary law(substantive). This view was propounded by H.L.A Hart in his book
the Concept of Laws where he said that criminal law defines what you are to do and
not to do. He goes ahead to explain secondary rules as those prescribing procedure
and confer authority. Essentially primary rules cannot exist without secondary rules
CP stems from one of the cornerstones of criminal law: one is innocent until proven
guilty. This universal right is declared in the UDHR (Art 11) and Article 50 2(a) The
Constitution of Kenya 2010. This ensures equality before the law for everyone
irrespective of what one has been charged with. The phrase is based on the general
inference that most people are good and not criminals. The court must first analyse
the evidence of the prosecution that is legally admissible and lawfully obtained and
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determine the guilt of the accused. If reasonable doubt still remains the accused is to
be acquitted. The judge should not draw away from the inference that the accused
has been charged with a particular crime and is presenting court and must decide the
case solely on evidence presented during trial.
The prosecution has to prove each and every element of the offence beyond
reasonable doubt. Criminal proceedings are instituted in the name of the State as the
complainant. Thus in any one criminal case the complaint will appear as Republic -
vs- Wachira, Wachira being the name of the accused person. This means that in law
every crime is against the State and, therefore, the state takes the responsibility to
seek redress on behalf of the victim by punishing the offender.
Being under the duty to protect the society, the State takes the responsibility to
prosecute those who commit crimes. But there is almost always a background
complainant in crimes involving private property and crimes against the person.
Such complainants usually appear only as prosecution witnesses. In most cases they
appear as the victims of the crime. The State, on the other hand, is usually the
complainant and the prosecutor. Since it is the state which through its legislative arm
enacts laws, breach of such laws by any criminal activity is in direct conflict with the
interests of the state. Thus, as the custodian of the legal and administrative order, the
state becomes a complainant when her laws are breached.
PROSECUTION IN KENYA
Historical Background
Different jurisdictions have different systems of prosecutions. In England any
member of the public may prosecute, but the Attorney General has complete
authority to dismiss the charge, whilst most prosecutions are conducted by the
police.
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In Europe the initiative lies entirely with the State acting through a public prosecutor
or an investigating magistrate. In America on the other hand prosecution has a
hybrid nature. This is bearing in mind the 50 states each with its own system, as well
as the federal system. The AG is aided by district and state attorneys.
However in relation to common law the public prosecutors appeared in
consequence of the fundamental change in the structure of the jury trial which took
place in the late medieval times. Self-informing juries had required no outside officer
to investigate crime and to inform the jurors of the evidence. The jurors were men
drawn from the neighborhood where the crime had been committed. This increased
the likelihood that the jurors were witnesses. They made inquiries of the facts and
even collected testimony. They weighed the evidence and gave a verdict. The juries
came to court more to speak than listen. They were witnesses as well as triers.
It is important to distinguish State trials from local trials which heard regular felonies.
State trials had handpicked judges under the watch of political authorities.
In local trials there was no prosecuting counsel as well as no legal representation.
For a very long time up to the 19th century the English relied on Private prosecution.
The aggrieved citizen could inform the juries. Additionally any person who had any
reliable evidence was also allowed to testify. This was however unreliable. There
were cases where no aggrieved person survived to prosecute, others declined and
others were just inept at it.
Thus it was inevitable that an official would take this role and around 1500‟s the
justices of peace where raised to public prosecutions. JP‟s originated in the 14 th
century as law enforcers. They were regarded as keepers of the peace and even had
powers of arrest. They could order an accused to trial and so on. In some cases they
even examined witnesses. Thus JPs fit into this slot perfectly supplementing private
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prosecutions. From 1829 onwards as the police force was formed they took up the
burden of bringing prosecutions against suspected criminals
Currently in England the Crown Prosecution Service is the principal public
prosecuting agency headed by the Director of Public Prosecutions
The Attorney General
Before the 2010 Constitution, the Attorney-General of the Republic of Kenya has
been a key member of both the Executive and the Legislature (as an ex-officio
member) and the Chief Public Prosecutor. . However, the Constitution of Kenya
2010 makes no mention of the AG's membership by right or otherwise, to either
House of Parliament.
Under the New Constitution, the function of prosecutions is no longer under the
AG's office. That role is now assigned to the office of the Director of Public
Prosecution. This change was meant to free the AG's office from the controversy
that often accompanied Presidential directions to the office of the AG, leading to
accusations that it was lacking independence by taking instructions from an executive
that could not be relied on to remain neutral. As a member of the Cabinet, the AG
may take lawful instructions in writing from the President.
The fact that the AG's Office was often times regarded by the public as not being
independent led to the provision that the holder of the office quit within one year of
the promulgation of the New Constitution, in order for the citizens to feel that they
have made a clean break with the past constitutional order and embrace a new office
holder in whom they can place their confidence. Consider Article 30 in the Sixth
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Schedule - Transitional and Consequential Provisions, Part 6 - Miscellaneous
Matters:
The Office of the Director of Public Prosecutions
The Office of the Director of Public Prosecutions (ODPP) is the National
Prosecuting Authority in Kenya which has been mandated by the Constitution to
prosecute
all
criminal
cases
in
the
country.
The Director of Public Prosecutions (DPP) is the head of the ODPP and operates
independently as stipulated under Article 157 of the Constitution. However, the
DPP is required to be accountable to the Public by presenting an annual report to
Parliament and the President on the performance of the ODPP.
The DPP may also be required, on a need basis to present a report to Parliament on
a matter of national or public interest
The Office was delinked from the Attorney General‟s Office in 2011 after the
promulgation of the Constitution in 2010. The ODPP has presence in all the 47
counties in Kenya with its headquarters in the City of Nairobi. A Chief County
Prosecutor (CCP) heads each ODPP County Office and is responsible for working
with the courts and the investigative agencies to provide high quality prosecution
services in their jurisdiction.
Nationally, the ODPP prosecutors deal with a wide range of cases from minor
offences in the magistrates‟ courts to serious cases such as murder, which are heard
in the High Court. The majority of our workload is in the Magistrates‟ Courts.
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The mandate of ODPP as derived from Article 157 of the Constitution is to institute
and to undertake prosecution of criminal matters and all other related incidents.
These include:
a. Instituting and undertaking criminal proceedings against any person before
any court of law except the court martial;
b. Taking over and continuing with any criminal proceedings commenced in any
court by any person or authority with the permission of the person or
authority and
c. Discontinuing at any stage before judgment is delivered of any criminal
proceedings with the permission of the court.
d. Directing the Inspector General of the National Police Service to investigate
any information or allegation of criminal conduct;
The core functions of the office of the Director of Public Prosecutions (ODPP)
include prosecution of those charged by the police and other investigative agencies
with criminal offences while upholding, protecting and promoting human and
constitutional
rights.
Other functions are:
a) To institute and undertake criminal proceedings against any person before
any court of law other than a court martial in respect of any offences
alleged to have been committed by that person;
b) To take over and continue any criminal proceedings instituted or
undertaken by another person or authority;
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c) To discontinue at any stage before judgment is delivered any criminal
proceedings;
d) To direct the Inspector-General of the National Police Service to
investigate any information or allegation of criminal conduct;
e) To ensure due regard to the public interest, the interest of the
administration of justice and the prevention and avoidance of abuse of
legal process;
f) To undertake public prosecution of cases forwarded by all investigation
agencies including the Police, Ethics and Anti-corruption Commission,
Criminal Investigations Department (CID), Banking Fraud Investigations
Units (BFIU), and cases taken over from private prosecutors;
g) To represent the State in all criminal cases, criminal applications and
appeals;
h) To advice Government Ministries, Departments and State Corporations
on matters pertaining to the application of criminal law;
i) To expound and disseminate the National Prosecution Policy (NPP) and
the Code of Conduct for Prosecutors;
j) To monitor the training, appointment, and gazettement of Public
Prosecutors in Statutory Corporations;
k) To address parliamentary questions relating to administration of criminal
justice;
l) To address complaints raised by members of the public, watchdog bodies
and other institutions; and
m) To Undertake other administrative roles relating to efficient and effective
administration of criminal law in the country
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The mandate of the Office of the Director of Public Prosecutions is implemented by
three Technical Departments and the Central Facilitation Services Department that
provides support services. Each of the Technical Departments is headed by a
Deputy Director of Public Prosecutions with vast experience in prosecution while
the Central Facilitation services Department is headed by a Senior Assistant Director
of Administration. The Departmental heads assist the DPP in the day to day
management of their respective Departments under the supervision of the Secretary,
Public
Prosecutions
who
is
the
de
facto
Deputy
to
the
DPP.
There is an Executive Secretariat attached to the DPP who provide general
administrative support, as well as focused research and advise on policy and strategy
issues. The Secretariat also handles files, mails, ODPP Reforms, Liaison,
Complaints and Compliments.
NOLLE PROSEQUI
Definition: Nolle prosequi is a latin term amounting to “do not prosecute” In the
Kenyan context
it is a formal entry by the Director of Public Prosecution stating or declaring that he
has determined that a case or part thereof shall not proceed This entry may be made
at any point of the proceedings before the verdict is given.
This power of Nolle Prosequi is provided under Article 157 (6)(c)
Also under the Criminal Procedure Code the D.P.P is allowed the power to
discontinue proceedings under sec. 82 and 87
Nolle prosequi may be entered :
As to some of the counts
As to some of the accused
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Altogether
Reasons
The D.P.P may enter nolle prosequi for various reasons including;

Where defendants innocence has been proved

Where there is insufficiency or inadmissibility of evidence

In instances of plea negotiations

For the purpose of filtering out trivial cases
Timing
Article 157(6)(c) provides that the DPP may discontinue proceedings at any time
before judgement is delivered.
Legal Effect
under sec.82(1) CPC …Entry of nolle prosequi only serves to discharge an
accused and does not bar from subsequent proceedings with fresh
information on the same charge.
Where the nolle prosequi is entered under sec. 87 (b)CPC , its effect is
acquittal of the accused.
Control
The new constitution limits the power of the DPP to enter nolle prosequi by
requiring him to seek permission from the court as per Article 157(8)
This was the practice of the court however, even before the 2010 constitution as was
the case in Crispus Karanja Njogu v A.G where court stated its entitlement to know
reason behind entry
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 Where the discontinuance is deemed by the court, oppressive,
unreasonable and capricious, it is declared null and void.
R V Adan Keynan Wehilye
Court quashed an entry of nolle prosequi for having prejudicial effect to the trial
rights of the accused
Delegatory Power
 The constitution under Article 157(9) provides for exercise of the
powers of the DPP by subordinate officers in accordance with
instruction.
 Case Law
See: Republic (state counsel) v. Enock Wekesa and Michael Watah
Respondents were charged with robbery with violence, defilement and indecent act.
The principal state counsel entered nolle prosequi but trial judge dismissed it
for lack of reason behind entry.
See also George Gitau Wainaina v. AG
ARRESTS
Which Constitutional right is potentially infringed by arrests?
The Constitution.
Article 29
Article 39
An arrest occurs when a person restrains the freedom of movement of another
person.
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As per Section 21 of the CPC is there a limitation on the amount of force
necessary to effect a lawful arrest?
What determines whether the force used was reasonable or not?
Section 24 of the CPC.
Can an arrest be effected without any body contact between the police officer and
the suspect?
Section 22 of the CPC the person effecting the arrest (with or without a warrant)
has the authority to search any premises where there is reason to believe that the
person to be arrested is therein.
When a person is arrested he may thereafter be searched and all articles found
on him with the exception of necessary wearing apparel shall be placed in safe
custody. Section 25 of the CPC.
As per section 28 this includes all offensive weapons found on the person of the
arrested person.
Arrest without a Warrant: By a police officer
Section 29 of the CPC lists situations where an arrest may be validly executed
without a warrant.
What is a cognizable offence? These are offenses for which a police officer may
effect an arrest without a warrant. For example, aiding a prisoner of war to
escape, riot, offences relating to judicial proceedings, rape, indecent assault etc.
(serious offences)
Is there any situation where a person who has committed a non-cognizable
offense can be arrested without a warrant? Section 32 of the CPC.
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As per section 33 of the CPC a person arrested without a warrant must be
brought before the relevant magistrate without unnecessary delay.
Arrest without a warrant: By a private individual
In what situations may a private person arrest another? Section 34 of the CPC.
The section vests authority to arrest in private persons where:
 A cognizable offense has been committed
 Where a felony has been committed
 The owner of property may arrest any person who commits an offense
resulting in injury to his property
.
A person arrested by a private individual without a warrant must be handed over
to a police officer without unreasonable delay. The Police may then rearrest the
person or release him if there is no sufficient reason to believe that he has
committed an offence. Section 35 of the CPC.
If the police choose to rearrest the individual section 36 of the CPC allows them
to release the person upon execution of a bond if the offense in question is not of
a serious nature.
As per section 40, police are authorized to arrest (without a warrant) any person
who escapes from lawful custody.
If a private individual uses unreasonable force in arresting a suspect and in the
process causes the suspect‟s death, he is liable to be prosecuted. In Uganda v.
Muherwa a private person used a weapon to incapacitate the deceased who was
suspected to be a thief in the course of which he died. As a result the person was
prosecuted and convicted of manslaughter.
In Beard and another v. R the appellants, acting in their private capacity as
private individuals arrested the complainant and tied him up although he had
made no attempt to escape. They delayed handing him over to the police as a
result of which the complainant suffered injuries. Consequently the appellants
were prosecuted on charges of assault and wrongful confinement and convicted
for using unnecessary force.
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Arrest without a warrant: By a magistrate
Section 38 and 39 of the CPC provide that where an offence is committed in the
presence of a magistrate he may himself arrest the offender or order any person
to arrest the offender.
Apprehension Reports
As per section 37 of the CPC officers in charge of police stations are required to
furnish a report of all persons arrested without a warrant within the limits of their
respective stations to the nearest magistrate. These reports are intended to curb
arbitrary arrests and ensure that citizens are not deprived of their liberty other
than with just cause.
Arrests with a Warrant
A warrant of arrest is a written order issued by a magistrate for the apprehension
of a person who fails to appear in court at an appointed time and in relation to an
offense committed by him. Look at sections 100 and 101 of the CPC. Note that
no warrant shall be issued unless a complaint has been made under oath.
As per section 104 a warrant may be directed to a particular police officer,
generally to all police officers in the area or to any persons where no police
officer is immediately available.
Section 105 provides that a warrant of arrest may be directed to a landholder
where an escaped convict or a person who has committed a cognizable offense
enters on his land.
Where a person is being arrested pursuant to a warrant, it is mandatory that the
person executing the warrant notify the person of the substance of the warrant
and if so required show him the warrant. Look at section 107 of the CPC.
Form, Contents and Duration of a warrant
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Look at section 102 of the CPC. What are some of the requirements that must
be met for a warrant to be formally valid?






Signature of the magistrate issuing it
Seal of the court
Name of the person (s) to whom it is directed
Summary of the offense
Name or description of the person to be apprehended
It must order the person or persons to whom it is directed to apprehend
the person against whom it is issued and to bring him before the court.
A warrant remains in force until it is executed or until it is cancelled by the court
which issued it.
Section 103 allows the court issuing the warrant to include on the warrant an
endorsement allowing the person to be released from custody upon executing a
bond with sufficient sureties. This is only possible for offenses other than
murder, treason or rape.
Where the court issuing the warrant lacks or exceeds its jurisdiction the defect
can be cured by taking it for endorsement to a magistrate within the local limits of
whose jurisdiction it is to be executed. Look at sections 110, 111 and 112 of the
CPC.
Irregularities in warrants
What happens when there is an irregularity in the warrant? Will this affect the
validity if the proceedings?
Look at section 113 of the CPC. Where the court is satisfied that the accused has
been deceived or otherwise misled it may adjourn the hearing of the case to some
future date.
Constitutional issues raised by arrests
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What are the rights of an arrested person as per article 49 of the Constitution?
The police practice of indiscriminate arrests and confinement of all persons who
may be connected, however remotely, with a criminal investigation has been
strongly deprecated by the courts.
The most common issue raised in this regard is situations where an accused
person is detained for longer than the expected constitutional period without
reasonable justification.
What remedy is suitable in these cases? An order for compensation or an
acquittal of the accused?
Who should bear the burden of explaining the delay? Is it the prosecution or the
accused person?
In Murunga v. R the court stated, “Under section 72(3) of the Constitution, the
burden to explain the delay is on the prosecution, and we reject any proposition
that the burden can only be discharged if the person accused raises a complaint .”
In Albanus Mutua v. R the court identified the following examples of what might
amount to an acceptable explanation for the delay:
 Accused person falls ill upon arrest and is admitted and kept in hospital in
excess of the period allowed
 Accused person is arrested on a Friday evening and has to wait till Monday
to be brought to court
 The court house was far from the police station
 The station vehicle broke down or had no fuel
Some courts have come out strongly in favor of declaring the prosecution a
nullity and releasing accused persons where the delay cannot be satisfactorily
explained by the prosecution. For example, see the case of Ann Njogu and 5
others v. Republic.
However, this is a position that has not found traction with most courts preferring
giving of compensation in such cases rather than allowing the accused to walk
away scot free.
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In Republic v. Amos Karuga Karatu the court held that even if it was found that
the extra judicial detention was unlawful, they would have “considered an
acquittal or discharge was disproportionate, inappropriate and draconian as a
remedy since public security would be compromised.”
Look at the following cases:
 Julius Kamau Mbugua v. Republic (2010) Eklr
 Hussein Khalid and 16 others v. Attorney General and 2 others (petition
no. 324 of 2013).
 Republic v. Dickson Mwangi Munene and Alexander Chepkonga Francis
(criminal case 11 of 2009)
 Lucas Omoto Wamari v. Attorney General and DPP (petition no. 294 0f
2012)
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BAIL AND BOND
A. INTRODUCTION
Bail is an agreement between an accused person (and his sureties as the case may be)
and the court that the accused person pays a certain sum of money fixed by the court
which money is forfeited by the accused person, or his sureties, should he fail to
attend his trial. The Law relating to bail is founded on the Constitution of Kenya and
the Criminal Procedure Code.1 This is in respect to the constitutional right to
individual liberty as set out in section 72 of the Constitution.
It is noteworthy that no right has been known to be absolute and the right to
personal liberty has been qualified under section 72(1) of the Constitution of Kenya.2
For instance, a person may be arrested and his liberty curtailed by a police officer if
he has reasonable suspicion that the person has committed or is about to commit a
criminal offence under the law of Kenya. 3
In particular, section 72 (5), which refers to bail, states that:
1
Criminal Procedure Code (Cap 75) Laws of Kenya
Constitution of Kenya, s. 72(1) states:
“No person shall be derived of his personal liberty save as may be authorised by law….”
2
3
Supra note 3, s. 72(1) (e).
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“If a person arrested or detained….is not tried within a reasonable time, then,
without prejudice to any further proceedings…, he 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 or for
proceedings…”.‟
The question of bail involves a delicate balance between two competing values: the
protection of the welfare of the society vis-a-vis fairness to the accused. The object of
bail is to shield the individual from pre-trial incarceration, the consequences of
which are that the individual‟s liberty may be greatly compromised as he may be
restrained in custody while the sufficient evidence is being sought against him.
B. AMENDMENTS REGARDING BAIL
Before the Constitution of Kenya (Amendment) Act of 1978 the Constitution
provided that any person could be admitted to bail whether conditionally or
unconditionally so long as his subsequent attendance was assured. In 1978, The
Statute Law (Miscellaneous Amendment) Act No. 20 of 1978) amended section
123(3) of the Criminal Procedure Code to state that the High Court may in any case
save where a person is accused of murder or treason, direct that a person may be
admitted to bail.
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The sub-section as amended created a contradiction. Whereas under section 123(1) 4
four offences- murder, treason, robbery with violence and attempted robbery with
violence were non-bailable, under section 123(3) 5 only two offences- murder and
treason were non-bailable. It was therefore quite possible for an accused charged
with robbery with violence or attempted robbery with violence to be denied bail
under sub-section (1) but get it under sub-section (3) because sub-section (3) allowed
bail in any case save for murder and treason.
The lacuna, created in the 1978 amendment was filled in 1984 and sub-section (3)
was amended to make it tally with sub-section (1). By Act No. 19 of 1984, robbery
with violence and attempted robbery with violence were made non-bailable. The
effect of this quick development was to make the four offences non-bailable under
both sub-sections.
In 1985 a Constitutional Court in the case of Margaret Magiri Ngui -V –R6 declared
section 123 of the Criminal procedure inconsistent with the Constitution and
therefore null and void by virtue of section 3 of the Constitution. In the case an
application was made to the High Court under section 84(1) of the Constitution
challenging the constitutionality of section 123 of the Criminal Procedure Code. It
was argued on behalf of the applicant that in denying bail to persons accused/
charged with capital offences, the section was inconsistent with section 72(5) of the
Constitution which allowed bail to persons charged with all offences. It was further
4
Supra note 2, s. 123(1).
Ibid, s. 123(1).
6
Criminal Appeal No. 59 of 1985, High Court of Kenya at Nairobi (unreported).
5
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contended by the applicant that the classification of offences into bailable and nonbailable offences was a feature alien to the constitution.
The constitutional court agreed with this argument and held section 123 to be
inconsistent with the Constitution and declared it to be null and void. The court then
proceeded on merit having first found it had power to grant or refuse bail. It held
that bail, as a general rule, should not be granted where the offence charged carries a
mandatory death penalty because the temptation to abscond in such cases is very
high. The High Court thus refused to release the applicant on bail.
By Constitution of Kenya (Amendment) Act No. 20 of 1987 section 72(5) of the
constitution was amended by replacing the phrase to read: ”he shall, unless he is
charged with an offence punishable by death, be released either conditionally or
upon reasonable conditions.” In 2003, Act no. 5 added on to the list any other drug
related offence as being non bailable. This remains the legal position till today.
C. BAILABLE AND NON BAILABLE OFFENCES
The law on bailable and non bailable offences is found in the Criminal Procedure
Code7 and the Constitution of Kenya. Section 123(1) of the Criminal Procedure
Code8 provides for non bailable offences. These are;
7
Cap 75 Laws of Kenya
8
Sec 123(1) “When a person, other than a person accused of murder, treason, robbery with violence attempted
robbery with violence or any drug related offence is arrested or detained without warrant by an officer in charge of a
police station, or appears 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…”
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 murder,
 treason,
 robbery with violence,
 attempted robbery with violence and
 any other drug related offence.
There is an exception, however, where the accused person is a minor. Rule 9 of the
Child Offenders Rules, 5th Schedule of the Children‟s Act empowers the courts to
grant bail to children charged with any offence. This was illustrated in Republic v.
Mutungi,9 where the High Court granted bail to a child offender charged with a
murder. Considering the generality of rule 9 of the Child Offenders Rules, the
constitutionality of the rule is still a matter of debate as section 72(5) of the
Constitution does not allow granting of bail in capital offences.
Section 72 of the Constitution deals with and provides for the right to personal
liberty. Subsection 5 however qualifies this right.10 It provides that one cannot be
released on bail if they have committed an offence punishable by death. The above
mentioned offences are punishable by death. Essentially it does not contravene the
Constitution for courts to deny bail.
This also implies that all other offences not mentioned are bailable. This does not
however mean that bail is guaranteed in all other instances save the aforementioned
felonies. As such, in every other case bail is granted on merit.
9
(2004) eKLR.
Sec 72(5) If a person arrested or detained …is not tried within a reasonable time, then without prejudice to any
further proceedings that may be brought against him, he 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 or for proceedings preliminary to trial.
10
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D. PRE-TRIAL BAIL
The case of pre-trial liberty is dealt with in section 72(5) of the Constitution which
states that: Unless one is charged with a capital offence:-
“If a person arrested…is not tried within a reasonable time, then, without
prejudice to any further proceedings that may be brought against him, he shall
be released either unconditionally upon reasonable conditions as are
reasonably necessary to ensure that he appears at a later date for trial or for
proceedings preliminary to trial”
A number of issues are considered by the court in granting pre-trial bail. The court
in Mary Wambui Kinyanjui v. Republic11 considered the nature of the charge,
seriousness of the sentence, character or antecedents of the accused and whether the
accused may commit further offences.
a) Fear of absconding
The trial of serious offences cannot normally proceed in the absence of the accused.
Any remand arrangements which fail to secure his attendance will be unsatisfactory,
as Lord Russell said in the case of R-V-Rose12 “The requirements as to bail are
merely to secure the attendance of the prisoner at the trial. Similarly, the court in
Gachara v. Republic13 stated that:
11
(2006) eKLR. In this case, the accused had absconded bail in a previous criminal when offence and committed a
criminal offence. The court declined to grant her bail.
12
(1885-99) ALL ER at 851
13
(2004) 1KLR, p. 373.
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“Generally and because of the presumption of innocence, an accused person
should be granted bail unless it is shown by the prosecution that there are
substantial grounds for believing, inter alia, that the accused will fail to turn up
at his trial or to surrender to custody.”
b. Fear of further offences
It does not matter how many sureties are tendered, they will still not be adequate to
meet the case if the true ground of objection is that the defendant will commit an
offence or offences while on bail. While referring to a defendant who had
committed nine offences while on bail, Atkinson J in the case of R-V- Philips14 noted
“……….to let such a man loose on society until he has received for an offence which
is not is in view of this court very inadvisable”
c. Interference with further witnesses
The possibility of the defendant interfering with witnesses will usually be relevant
only where the alleged offence is comparatively serious and there is some other
indication such as past record of violence of the defendant. 15 Where there is a
substantial ground for fearing such interferences this seems to be a very strong
reason for refusing bail.
It is prudent to note that such allegation should be
supported by facts showing reasonable cause for the belief to avoid speculation by
14
15
(1974) A.C 111,334
See Bwonwong’a M. (). Criminal Procedure in Kenya, p. 114.
24
the courts. In Panju v. Republic, 16 the court averred that the allegation of
interference with witnesses should be supported by facts.
d. Nature and seriousness of the offence
Courts have given great consideration to the gravity of the offence in determining
whether or not to grant bail. The court in the case of R-V-Barronett and Allain,17
stated that the more serious the offence, the stronger the temptation to abscond.
e. Seriousness of the offence
The probable sentence that the accused person receives upon conviction is a
cardinal consideration in granting pre-trial bail. The court, in Muiruri v. Republic18
stated that:
“In principle, because of the presumption that a person charged with a
criminal offence is innocent until his guilt is proved, an accused person who
has not been tried should be granted bail. But there are well defined grounds
on which it is proper to oppose or refuse bail…The third ground is the
seriousness of the offence charged.”
The rationale in declining to grant bail in serious offences is that there are more
probabilities and incentives to abscond, whereas in minor charges, such incentives
may be lacking.19
16
(1973) EA 282 (HCT). In this case, the prosecution objected to releasing applicant on bail arguing that he was
likely to interfere with witnesses and escape since he lived near the Kenyan boarder.
17
(1852) 17 Y.P 245
18
(2004) eKLR
25
E. ANTICIPATORY BAIL
Anticipatory bail is a direction to release a person on bail, issued even before the
person is arrested. A person can apply for anticipatory bail if he apprehends that
there is a move to get him arrested on false or trumped up charges, or due to enmity
with someone, or he fears that a false case is likely to be built up against him.
The question of anticipatory bail in Kenya was dealt with in the case of W‟Njunguna
vs. Republic.20 In this case the question was whether anticipatory bail was provided
for in the Constitution under Chapter V thereof. In this case, the applicant sought a
declaration that anticipatory bail is constitutionally provided for and that the same is
lawfully available to persons under the provisions of Chapter V of the Constitution
of Kenya. The court stated:
“From section 60(1) and 84 of the Constitution, the High Court has powers to
make such orders that shall enforce and secure the fundamental rights of an
individual as provided for in sections 70 to 83 of the Constitution…while the
right to anticipatory bail or bail pending arrest is not specifically provided for
by statute, the same right is envisaged by section 84(2) of the Constitution…the
19
Momanyi Bwonwong’a (1994). Procedures in criminal law in Kenya. Nairobi: East African Educational
Publishers.
20
(2004)1 KLR 520.
26
right to anticipatory bail has to be called out when there are circumstances of
serious breaches of a citizen‟s right by an organ of the state which is suppose
to protect the same…if the High court were to wait for Parliament to legislate
on the right to anticipatory bail, then the High Court would be shirking its
responsibility as mandated by section 84(1) of the Constitution to enforce the
protection of fundamental rights and freedoms as provided for by the Bill of
Rights (Chapter 5 of the Constitution)…”
Further, in Devans Chilelo Mwangade Vs Attorney General,21 the applicant sought
to be granted bail on the basis of section 123(3) of the Criminal Procedure Code, as
he feared arrest by the Kenya police for alleged sexual advances to two female pupils
at Likoni Primary School. He claimed that the pupils had booked a malicious report
at Likoni Police Station and an arrest warrant in his regard had been issued. J.K
Sergon, in dismissing the bail application, lamented that no section to his knowledge
of the Criminal Procedure Code provided for anticipatory bail.
To add to that, in Zakayo Kimutai Kimeto Vs Republic22 the applicant had relied on
sections 72(1) and 84 (which provides for the enforcement of the protective
provisions of the constitution) of the constitution and section 123 of the CPC to seek
anticipatory bail. Jeanne Gacheche, in dismissing the application for lack of merit,
stated that anticipatory bail is not catered for in the Criminal Procedure Code.
21
22
[2006] eKLR
[2006] High Court at Eldoret Misc Crim Appli 12 of 2006.
27
These above cases serve to confirm that whereas the grant of anticipatory bail has
not been legislated upon by the Kenyan Parliament, the jurisdiction of the High
Court can be invoked under section 84(2) of the Constitution to grant the
anticipatory bail.
F. BAIL DURING TRIAL
A person in custody may be released on bail before trial, or during any proceedings
by the police or court. This is envisaged in section 123(1) of the Criminal Procedure
Code23 which states the right of bail can be invoked at any stage of the proceedings.
The principles for granting bail during trial were considered in Opondo v. The
Republic24 in the following words:
“…Once a trial has began, the further grant of bail is in the discretion of the
trial magistrate. But an accused who has been on bail while on remand should
not be refused bail during the trial, unless, in the opinion of the magistrate,
there are positive reasons to justify this refusal, e.g. that a point has been
reached where there is a real danger that the accused will abscond, either
because the case against him is going badly for him, or for some other reason,
or there is a real danger that he will interfere with the witnesses…”
23
24
(Cap 75) Laws of Kenya.
(1976-80) 1KLR731.
28
Bail during trial shall be determined by the court at a fixed amount with due regard
of circumstances and shall not be excessive25. This was reiterated in Michael Ng‟ang‟a
Kanyi & another v Republic26, the court held that bail amounts should be justifiable.
Before a person is released on bail, a bond for such sum as the court thinks
sufficient shall be executed by that person conditioned that the person shall attend at
the time and place mentioned in the bond and shall continue to attend until
otherwise directed by the court27. As soon as the bond has been executed, the person
for whose appearance it has been executed shall be released, 28 if however, through
mistake, fraud or otherwise insufficient sureties have been accepted the court may
issue a warrant of arrest directing that the person released on bail be brought before
it29.
The following situations demonstrate further bail during trial
i)
In terms of section 327(1) of the Criminal Procedure Code, when a person
has been convicted of an offence, the judge may reserve and refer for the
decision of the court consisting of two or more judges of the High court
any question which has arisen in the course of trial, pending the decision
the person convicted shall be remanded to prison or be admitted to bail30.
25
Criminal Porcedure, s. 123(2).
(2007) eKLR
27
Criminal Procedure Code,Section 124.
28
Ibid, s. 125.
29
Ibid, s. 127.
30
Ibid, Section 327(2).
26
29
G. BAIL PENDING APPEAL
The Criminal Procedure Code under Section 356 permits bail pending appeal. Bail
in this case is on such terms as may seem reasonable to the court. The appellant
applies for grant through a Notice of Motion or Chamber Summons brought under
Section 357 of the Criminal Procedure Code. Where an accused person is refused
bail by a subordinate court, he may appeal against the decision of the subordinate
court to the High Court.31
The principles that govern the grant of bail pending appeal differ from those
governing bail before conviction. However, ultimately its grant will depend on the
exercise of the court‟s discretion on the particular facts of the case and in accordance
with the laid down principles.32 The court considers the following in determining
whether or not to grant bail:
1) Whether leave to appeal has been granted.
2) Whether there is a strong likelihood of success of the appeal.
3) Where there is a risk that if bail is not granted the sentence will have been
served by the time the appeal is heard.33
These conditions do not warrant the automatic grant of bail. In Shah V R,34 the court
held that steps should be taken to see that the hearing of the appeal is expedient
rather than grant bail. The court emphasized that bail should only be granted in
exceptional cases.35 This position was recently endorsed in the High Court at Nyeri
31
Ibid, s. 357(1)
Mundia V Republic (1986) KLR p 623
33
P. L. O. Lumumba (2005), A Handbook On Criminal Procedure In Kenya, Nairobi-Law Africa Publishing (K)
Ltd, p. 32
34
13 August 1976 CA UR
35
Spry J in the Lamba Case noted that neither the complexity of the case nor the good character of the applicant nor
32
30
in the case of Sisto Kamaru V Republic.36The application for grant of bail pending
appeal was opposed by the state counsel who stated that the practice in that court
presently was to hear appeals expeditiously. The court found that there were no
exceptional grounds to move the court to grant bail and the state counsel correctly
stated that the appeals were being heard expeditiously. The application for grant of
bail pending appeal was dismissed.
It is worth noting that the most fundamental ground for consideration is whether the
appeal has an overwhelming chance of success and where this is shown then there is
no justification for depriving the applicant his freedom. This issue was discussed in
Raghbin Singh Lamba V R,37where the arguments for bail pending appeal were that
the appeal could be more easily prepared if the applicant was on bail, previous good
character of the applicant and the hardships to his dependants if he remained in
prison. Spry J found that the court was not satisfied that there was an overwhelming
probability that the appeal would succeed. The application was dismissed for want of
satisfaction to the court that there was an overwhelming probability of success.
In contrast, Muli J in Motichand V R38denied force to the decision in the Lamba
Case and granted bail on the ground that the appeal had a probable chance of
success. He argued that the denial of bail would amount to the denial of
fundamental rights and freedoms which the constitution guarantees.
the alleged hardship to his dependants would constitute exceptional or unusual reasons.
36
Criminal Appeal 294 0f 2008.
37
(1958) EA 337
38
(1972) EA 399
31
The High Court in 2007 Maurice Okello Kaburu alias Samuel Obiero Ombewa V
Republic39 held that there was no radically significant element laid before the court
which would dispose it towards the inference that the appeal as filed indeed carries
overwhelming chances of success. The court perceived it as an appeal set to be fairly
contested, and an appeal the outcome of which could go either way. The application
was dismissed.
The court may consider other factors as well in determining whether to grant the
bail pending appeal. The applicant in Mary Wambui Kinyanjui V Republic40 was
denied bond in the Chief Magistrate‟s court on the ground that she had absconded
in earlier case. The reason given for absconding was an alleged statement associated
to the prosecutor of the court. The prosecutor‟s name was not given and neither had
he sworn an affidavit to confirm the information. The information wasn‟t admissible.
The court found that even if the alleged information from the prosecution were
accepted as a statement of fact, it would not suffice to justifying a finding that it was a
reasonable and plausible excuse for failing to attend court. The trial court refused to
grant the applicant bond on the basis that she had absconded in the previous case
and she had committed a second offence. It was held that the trial judge was justified
to disallow bond. The application was dismissed.
The Court of Appeal has no jurisdiction under the Criminal Procedure Code or the
Rules of the Court of Appeal to entertain an appeal against a refusal to the High
39
40
Miscellaneous Criminal Application 300 of 2007
Miscellaneous Criminal Application 353 of 2006
32
Court to grant bail pending appeal. This was held in Michael Otieno Ademba V
R41where the appellant pleaded guilty to a charge of impersonating a person
employed in the public service contrary to section 105 (b) of the Penal Code and
was sentenced to twelve months imprisonment. He appealed against the sentence to
the High Court which declined to grant bail pending appeal. He then appealed to
the Court of Appeal against the High Court‟s refusal to grant bail. The appeal was
dismissed.
H. BAIL BOND PROCESSES
A bail bond is a written promise given by an accused person to court or to police,
with or without surety, to guarantee that the accused person will duly appear in
court.42 Theoretically, the effect of the release on bail bond with the surety is to
transfer custody of the accused person from the officers of the law to the custody of
the surety, whose undertaking is to deliver the accused to legal custody at the time
and place stated in the bond. There are a number of bail bond processes in Kenya.
a) Bail bond by Police: Pursuant to section 36 of the Criminal Procedure Code,
a police officer in charge of a police station has the power to release a suspect
of minor offence(s) on bond in instances where it is impractical to arraign the
suspect in court within 24 hours. The bond can be issued by the police with
or without sureties. Further, the amount of the bond should be reasonable.
The effect of this type of bond is to secure the attendance of the accused
person before a subordinate court. The cardinal principle guiding the police
in charge of a police station on whether or not to release a suspect on bond is
41
42
Court of Appeal Reports (1983) Vol 1, at 187, (1983) 1 CAR 187
Garner B. (8th Edn: 2004). Black’s Law Dictionary, p. 187. USA: Thomson West Publishers
33
the seriousness of the offence. This was emphasised in Ndede v. Republic,43
where the court argued that if the offence appears to the officer in charge of a
police station to be of a serious nature, the person is to be retained in custody
but where a person is retained in custody, he shall be brought before a
subordinate court as soon as practicable. The above section is emphasised by
section 23 of the Police Act which requires a police officer investigating an
alleged offence to require the accused person to execute a bond in such sum
or form as to secure the accused person‟s attendance to court. 44 As it has been
argued by one scholar, the purpose of granting such bail bond is to ensure that
the accused person(s) do not serve pre-trial custody/sentences.45 Where after
due inquiry, the police officer in charge of a police station is of the opinion
that there is no sufficient evidence to sustain a charge, the police officer will
release the suspect unconditionally.46 As a safeguard against arbitrary exercise
of discretion by the police, section 37 of the Criminal Procedure Code obliges
a police officer in charge of a police station to report to the nearest magistrate,
cases of all persons the police officer has arrested without a warrant, whether
or not the suspects have been admitted to bail.
b) Bail bond for prevention of offences: section 43 of the Criminal Procedure
Code empowers a magistrate to order a person to execute a bond to keep
43
Ndede v. Republic (1991) KLR 567. In this case, the accused person was charged of being a member of an
unlawful society contrary to section 6(a) of the Societies Act and taking an unlawful oath contrary to section 61(b)
of the Penal Code. The suspect was not released on bond owing to the seriousness of the offence.
44
Police Act (Cap 84), s. 23 states:
“(1) 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, conditioned on his due attendance at
court if and when required so to attend. (2) Any person who refuses or fails to comply with a requirement lawfully
made under subsection (1) shall be guilty of an offence.”
45
See Lumumba P.L.O. (1998). A Handbook on Criminal Procedure in Kenya, p.102. Nairobi: Business Trends
Limited.
46
Criminal Procedure Code (Cap 75), s. 36 (Proviso).
34
peace. This occurs in instances where upon the examination of an informant
on oath, the magistrate is of the opinion that the person against whom the
information is made is likely to commit or do any act likely to breach public
peace or disturb public tranquillity.47 In its obiter dicta, the court in Abdalla v.
Republic,48 that the person against whom the information is made is strictly
not accused of any offence, so he is better referred to as „suspect‟ or „subject‟
rather than „accused‟. The maximum period within which the suspect may be
ordered to keep peace is one year, and the bond to keep peace may be
executed with or without sureties.49 Proceedings against the suspect to keep
peace can commence before a magistrate only if the suspect has already been
apprehended, or is within the local limits of the magistrate‟s jurisdiction.50
c) Bail bond for good behaviour: Bond for good behaviour covers a number of
suspects. First, under section 44 of the Criminal Procedure Code, a magistrate
is empowered to order a person who disseminates or abets dissemination of
libellous matter, a matter dangerous to peace and good order and libellous
matter against a judge to execute a bond for good behaviour. Secondly, under
section 45 of the Criminal Procedure Code, a magistrate to order a person
who is deliberately concealing his presence within the jurisdiction of the court
intentionally to commit an offence to execute a bond for a bond for good
behaviour. Thirdly, under section 46 of the Code, a magistrate is empowered
to order habitual robbers, housebreakers, thieves, recipient of stolen property,
and members of unlawful societies, among others, to execute a bond for good
47
Supra note…s. 43(1).
Abdalla v. Republic (1984) KLR 667
49
Supra note…, s. 43(1).
50
Ibid, s. 43(2).
48
35
behaviour for three years or to give a restriction order in a district where the
suspect‟s home situate for three years.51
Upon examination of an informant on oath, when a magistrate deems it necessary
that there is need for a suspect to show cause why he/she (the suspect) should not be
ordered to execute a bond, either to keep peace or to be of good behaviour, the
magistrate must make an order in writing setting out
the substance of the
information received, the amount of bond to be executed, the period for which it
will be in force and the number, class and character of sureties if any that are given
and, for habitual offenders, the district in which the suspect is to be restricted for a
three year period.52 Once the magistrate has read out the order in court, he (the
magistrate) shall proceed to make an inquiry into the informant‟s information, and
where there is need for further evidence, he shall take such further evidence.53
The inquiry takes the form of conducting trials and recording evidence before
subordinate courts as specified by the Criminal Procedure Code.54 In Abdalla v.
Republic,55 the appellant had been ordered by the magistrate court to sign a bond to
keep peace for a period of one year in accordance with section 43(1) of the Criminal
procedure Code. The appellant appealed against the order on the ground that the
magistrate did not comply with section 47(a) of the Act which requires that the
magistrate‟s order requiring a suspect to show cause why he should not execute a
bond specifying the substance of the information received. Also, the appellant
argued that the magistrate did not inquire into the veracity of the information
received from the informant as required by section 52 of the Act. The Court of
51
Ibid, s. 46.
Ibid, s. 47.
53
Ibid, s. 52(1).
54
Ibid, s. 52(2).
55
Abdalla v. Republic (1984) KLR 667
52
36
Appeal held that in proceedings for binding a person to keep peace under section
43(1) of the Criminal procedure Code, it is mandatory that the magistrate should
examine the informant on oath. The Court further held that an inquiry into the truth
of information under section 52(1) of the Criminal Procedure Code can only occur
once the magistrate has issued an order under section 47(a) of the Act. Because the
magistrate failed to make the order under section 47(a) of the Act, he occasioned
injustice to the appellant, and therefore the appeal was allowed.
Similarly, in Mwagona & 3 Others v. Republic,56 the four appellants in the case
appeared in court to show cause why they should not be bound to keep peace. Each
of them stated that he was ready to sign a bond to keep peace. The magistrate
thereupon ordered each appellant to keep peace and not to cause any disturbance
for a period of one year. Each appellant executed a bond of Ksh. 10,000. The
appellants argued the order to keep peace and to execute a bond was a nullity as the
magistrate had not complied with the proper procedure. On appeal, the High Court
held that before making an order to execute a bond, a magistrate must hold an
inquiry as provided for under section 52(2) of the Criminal Procedure Code as
nearly as the manner in which trials in criminal cases are conducted.
The nature of an inquiry into the truth of the information upon which the action has
been taken does not envisage the recording of plea as there is no charge. As there is
no charge, a person is not required to execute a bond merely because he accepts to
sign it before the magistrate has held a full inquiry and satisfied himself that the
information upon which the action is taken is true; the suspect should be given a
chance to defend himself. The appeal was therefore allowed, the order of the
56
Mwagona & 3 Others v. Republic (1990) KLR 514.
37
magistrate to keep peace and not to cause disturbance quashed and the appellants
discharged from the bond.
Generally, if, upon inquiry, the magistrate deems it necessary that the suspect should
execute bond for keeping peace, for good behaviour or should be restricted, he shall
so order.57 However, where the suspect is a minor, the bond is executed only by his
sureties.58 In instances where it is not proved upon inquiry that the suspect should
execute bond for keeping peace, for good behaviour or should be restricted, the
magistrate shall release him.59
I. SURETIES
A surety is a person who guarantees that an accused who was granted bail will appear
for trial on his next scheduled court appearance. A surety may be required to
deposit cash with the court which may be forfeited if the person in whose favour the
guarantee is given does not appear as guaranteed. A surety is defined as a pledge by
some other person guaranteeing that the accused person shall appear for his trial and
if he does not then the surety shall pay to the court a certain sum which has been
fixed by the court60. A surety is simply a person who pledges to become answerable
for the debt of default of another61.
57
Criminal Procedure Code, s. 53(1).
Ibid, s. 53(1) (iii).
59
Ibid, s. 54.
60
P L O Lumumba, PhD, A Handbook on Criminal Procedure (Nairobi; publishers, 1997) p.35
61
P. Ramanatha Aiyar, The Law Lexicon (New Delhi; Wadhwa&co. Law Publishers, 2nd Ed, Vol II, 1997) p. 1841
58
38
The undertaking by a surety to secure the presence of the accused person in court is
absolute and the liability to forfeiture on default is unqualified62. When sureties enter
into recognizance with an accused person they take on serious obligations and must
forfeit, should the person abscond.
It is a matter of public knowledge that it is by no means difficult for accused persons
on bail to abscond. That is a factor calling for special diligence on the part of
sureties. Thus these instances compel the court to take the matter of bail and bond
seriously and to forcefully convey to the potential sureties that they take on an
onerous obligation when they enter into recognizances for anyone facing a trial for a
criminal offence63.
The qualifications that need to be met by one in order to stand as surety were
discussed in the case of R vs Gabhai Jessa64. A person standing as surety must be a
person of social standing in the community. He must also be aged eighteen65 or
above and must be capable of meeting his financial obligations as a surety 66.
Discharge of sureties
Discharge of sureties in Kenya is covered by section 128 and 129 of the Kenyan
Criminal Procedure Code Cap 75 laws of Kenya. It may be commenced in 3 ways;
a) Application by surety for discharge
62
Simpson CJ , in Mulwa V Republic, Criminal Appeals Nos 1264 of 1982 & 19 of 1983 (consolidated)329
Ibid note 3, p.333
64
High Court Bulletin No. 54 /1963 at P.31.
65
See the Age of Majority Act Cap 33 of the Laws of Kenya.
66
Ibid note 1, p.36
63
39
Any surety for the appearance and attendance of an accused person released on bail
may at any time apply to the court that the bond in respect of himself be discharged
as per section 12867, Cap 75 of the Laws. On receipt of such application, the court
will cause the accused person to be brought before it and will then direct that the
bond in respect of such surety be discharged. The court will then call upon the
accused person to find another surety. If he fails to do so the court may commit him
to prison.
The Act does not require that the surety applying for such discharge to state reasons
for his application; nor, it would seem, is the court required to make such inquiry
from him. Perhaps it‟s because a surety is a free agent when he offers to stand surety
for the accused person68.
b) Death of a surety
This is provided for under section 129 69 of Cap 75 of the Laws. In the event where
the death of a surety occurs, the court may require the accused person to find a new
surety unless the circumstances of the case are such as to show that the reduction of
the bond by the death of the surety will not jeopardize the interest of justice70.
c) Finalization of case against accused
67
128. (1) All or any of the sureties for the appearance and attendance of a person released on bail may at any
time apply to a magistrate to discharge the bond either wholly or so far as it relates to the applicant or applicants.
(2) On an application being made under subsection (1) the magistrate shall issue his warrant
the person so released be brought before him.
(3) On the appearance of the person pursuant to the warrant issued under subsection (2) or on his voluntary
surrender, the magistrate shall direct the bond to be discharged either wholly or so far as it relates to the applicant or
applicants, and shall call upon the person to find other sufficient sureties, and if he fails to do so may commit him to
prison.
68
B D Chipeta, J, A Magistrate’s Manual ( Tabora; T.M.P Book Department) p.59
69
129. 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 party who gave the bond may be required to find a new surety.
70
Ibid note 9
40
A surety is discharged by the finalization of the case against the accused in respect of
which the bond was executed. Once the case has been finalized, the bonds are
automatically discharged. If a sum of money was deposited as cash bail, that sum is
refundable.
Relevant case law on matters relating to sureties
There are instances where depending on the circumstances of the case, the surety
put up by an accused person may be refunded. One of these instances is where the
accused person is found to have been charged unfairly. Such instance in the eyes of
the court is a breach of the fundamental rights of the accused among other rules of
law. The relevant case law portraying this particular situation is the case of Isaiah
Ngotho vs. Republic71
There are instances where the court may order the forfeiture of the surety put up in
favour of an accused person. However, in ordering such forfeiture the court must
adhere to the laid down procedures as per the provisions of section 131 of the
Criminal Procedure Code. If any such orders are found to have appropriated the
miscarriage of justice, then such orders may be set aside. The relevant case here is
that of John Taracha Sindikhi vs. Republic.72
When an accused person is to be released on bond, the court has the discretion to
impose the terms of the bond as it deems fit and is commensurate with the offence
in question. It thus takes into account many factors and imposes these terms.
However, the court in its capacity to impose such terms may not do so unfairly and
unreasonably. Any such terms found to be unreasonable will cause the terms in
question to be reviewed and this is effected vide an application by the afflicted
71
72
Miscellaneous criminal application no. 81 of 2002.
Revision case 727 of 2003.
41
parties. This can be evidenced by the following case. Thomas Kada Dalu and
another v Republic.73
Where an accused person is released on bond and a surety or sureties of a similar
amount, it is the courts understanding that the sureties will forfeit their
money/property if the accused person jumps bail and absconds. The onus of
proving that there should be remission of such property or money in whole or part
lies in the hands of the sureties. The position here is that even after the court
considers the circumstances surrounding such an event, there is no assurance of the
orders of remission being granted given the fact that the court expects the sureties to
fully understand the purpose of their being sureties for an accused person. The
following case sheds more light in such an instance where the accused jumps bail
and the sureties seek orders of part or whole remission of their surety amounts;
Mulwa vs. Republic74
Sureties in whichever the case may have their surety bonds accepted by a court of
law without their being subjected to rigours of justifying their means where it is clear
to the court that they are persons of responsibility and respect.75 Despite this being a
probate cause, it is evident that matters of sureties do not only apply to criminal
causes as is common and in principle, they do traverse a wide jurisprudential
ground.
J. RECOGNIZANCE
In criminal law, „recognizance‟ means an obligation of record that is entered into
before a court or magistrate, containing a condition to perform a particular act, such
73
Criminal application 322 and 377 of 2000.
See also Reg vs. Southampton Justices exparte Green (1975) 3 WLR 277; (1975) 2 All ER 1073 and Regina vs.
Horsferry road stipendiary magistrate exparte Pearson (1977) 1 WLR 1197; (1979) 2 All ER 264.
75
Probate and Administration Act of 1881, section 78. this particular proviso was referred to in the case of Re
Kibiego, Probate cause No. 15 of 1972.
74
42
as making a court appearance. It is an obligation of record that is entered into
before a court or magistrate, containing a condition to perform a particular act,
failing which attracts a penalty e.g. forfeiture of money. 76 It is a personal obligation or
undertaking whereby the arrested person pays a sum of money and pledges to assure
the performance of an act. This includes the

making a court appearance.

the payment of costs in civil litigation (i.e., amounts of money losing parties
must pay to winning parties for the expenses of litigation).
The party (the recognizor) acknowledges/recognizes that he owes a personal debt to
the government and binds himself to pay the sum of money, whereby if he fails to
perform the agreed stipulated act (if he fails to appear at the court during hearing )
the money may be collected in an appropriate legal proceedings.77
Under section 131, recognizance may be forfeited and penalty paid. The court may
recover the penalty by issuing a warrant for the attachment and sale of the movable
property belonging to that person, or his estate if he is dead.
K. FORFEITURE AND NON-COMPLIANCE WITH BAIL TERMS
A person, who is in custody because he or she has been charged with an offence or
is involved in pending criminal proceedings, may apply for the bail. A bail is a sum
of money deposited to secure an accused person‟s temporary release from custody
76
77
www.lawyers.com Retrieved June 08, 2009
Encyclopædia Britannica Inc. (2009). Retrieved June 08, 2009 http://www.britannica.com
43
and to guarantee that person‟s appearance in court at a later date. Bail may be
defined as an agreement between the accused (and his sureties as the case may be)
and the court and that the accused will pay a certain sum of money fixed by the court
should he fail to attend his trial. 78 In which the money is given back to him regardless
of the conviction.
To comply with any conditions set out in the agreement as to conduct while on bail,
a person who is admitted to bail and fails to appear and surrender himself according
to the conditions of his bond, the judge shall declare the bond forfeited issue a
warrant of a arrest and order for his immediate arrest.
But before court orders forfeiture of an accused‟s bond there has to be sufficient
proof by way of evidence on oath to warrant such forfeiture. This is illustrated in the
case of, Charles Ogutu V Republic79 where the accused was charged with obtaining
money by false pretence and was released on bail he failed to attend trial because he
was sick. Consequently he sent a person to inform the Magistrate about his sickness.
The Magistrate disbelieved it cancelled the bail and issued a warrant of arrest. On
Appeal the order of cancelling the bail was quashed and the bail restored with the
court ruling that the accused had no intention of absconding. A mere statement by
the prosecutor that the accused was absent is not enough.80
78
Douglas Brown, Criminal procedures in Uganda and Kenya, 1970, (Sweet and Maxwell, London) (2nd Ed).
79
Miscelleneous Criminal Application No.64 of (1989)
Momanyi Bwonwong’a (1994). Procedures in criminal law in Kenya. Nairobi: East African Educational
Publishers, p 119.
80
44
In Nsumbuga V Uganda,81 the accused deposited cash money in court as security for
his attendance in court and was released on bail. On the date of trial the Magistrate
recorded that the accused was absent and issued a warrant of arrest at the request of
the Prosecutor. The accused stated before the court that he had been present but his
name was not called out. The prosecutor stated that he had been absent but no
evidence was called to prove this. The Magistrate ordered the cash bail forfeited
against which the accused appealed. On appeal the forfeiture order was quashed as
the procedure adopted was wrong and the Court ruled that the evidence on oath had
to be led before making an order of forfeiture as opposed to acting on the statement
of the prosecutor.
Evidence on oath enables the accused to cross examine the prosecutor and the
witnesses. The accused person cannot do this in the case of statement by the
prosecutor. If an accused person is on bond his bail should not be cancelled unless
there is danger that he will abscond or there is danger that he may interfere with the
witnesses. 82
Non-compliance and forfeiture go hand in hand because, when you don‟t comply
with whatever you have agreed before the court, a penalty will follow. For instance,
when a person fails to appear in court on the date set or fails to comply with one of
the conditions e.g. if the accused is not to travel outside the country, and he does so,
this will result to non-compliance to bail terms.
81
82
(1968) East African Law Report
Supra note 2 paragraph
45
46
CHARGES AND INFORMATION
A charge is a complaint formally drawn up. It is a formal written accusation of an
offence drawn up by the magistrate or police officer and signed as required by law
for use in a criminal trial. It serves the purpose of informing the court of the offence
allegedly committed by the person it is called upon to try. A criminal charge also
informs the accused of the allegations against him so that he can prepare a defence.
The charge is contained in a document known as the charge sheet (in the
subordinate courts) or information (in the High Court). It is the equivalent of
pleadings in civil cases. It contains allegations against the other party.
It is a mandatory requirement that a charge must be based on some known offence
in written law. Under section 77(8) of the constitution, it is provided that no person
should be convicted of an offence unless the offence is defined in written law.
FRAMING OF CHARGES
The charge should be in the prescribed form given at the second schedule of the
CPC pages 150 – 156. Section 134 of the CPC prescribes that it should contain 2
essential elements:i)
The statement of the offence
ii)
The particulars of the offence.
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The charge should describe the offence briefly, plainly and concisely. It should not
contain any evidence. Technical terms should not be used because this is a
document to be given to the accused; a simple person who does not understand such
terms. It should therefore be in ordinary language for ordinary people to
understand.
STATEMENT OF THE OFFENCE
The statement of the offence usually states the law and the procedure and the
particular section or sections of the law which have been allegedly offended.
With respect to sections, the requirement is that the charge should state the sections
and subsections of the offences charged. The penal code or statute may create a
number of offences in one section so sometimes the charge may state the wrong or
non-existent section or subsection. The effect of such lapses would depend on
whether the same occasions a miscarriage of justice. If in the opinion of the appellate
court no injustice was occasioned on the accused by citing the wrong section, the
conviction shall stand. However where the court sees the citation of the wrong
section causing a miscarriage of justice the trial would be declared a nullity.
.
Particulars of the offence
The particulars of the offence contain the ingredients which constitute the offence
such as:
i. Identity of the accused,
ii. Date and time when the alleged offence was committed
iii. place where the offence was allegedly committed,
iv. Subject matter of the charge (acts which make it an offence).
v. Identity of the complainant. eg. to whom the house burnt belonged to.
They should so set out that they disclose an offence lest the charge is declared
defective and improper.
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RULES OF FRAMING A CHARGE
Section 137 of the CPC provides detailed rules for the framing of a charge.
PART A
The form and structure of the charge:
i. The charge should commence with a statement of the offence charged
called “statement of offence”
ii. The form of the charge should conform as nearly as possible as the form
provided in the 2nd schedule of the CPC.
iii. Where the charge contains more than one count or the charge has various
offences the counts should be numbered consecutively.
iv. The charge should be set out in ordinary language.
PART B
Description of Property
1. Description of property should be in a simple and straightforward language
2. It should indicate clearly the property referred to.
3. Where the property is owned by more than one person, it should suffice to
describe the property as being owned by one of the persons. You do not have
to list all the persons.
4. If the property is owned by a body of persons with a collective name, it would
be sufficient to use the collective without naming any individual owner.
5. If property belongs to or is provided for use by a public establishment, service
or department, it may be described as property of the government.
6. Coins, bank notes or valuable currency may be described as money.
PART C
Description of Person
1. The description or designation of the accused person or of another person to
whom reference is made should be sufficient to identify him. Use names.
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2. If the name of the other person is unknown or for some person it is
impracticable to give such a designation or description, a description may be
given or described as an unknown person.
PART D
Description of documents
1. These should be referred to by name by which they are usually referred.
2. There is usually no need to state the contents of a document in the particulars
of a charge.
PART E
Provisions as to statutory offences
Where an enactment constituting an offence states the offence to be the doing or the
omission to do any one of any of the different acts in the alternative or the doing or
the omission to do any act in any one of the many different capacities or with anyone
of the different intentions or any part of the offence in the alternative, the act,
omissions, capacities or intentions shall be stated in the alternative in the count
charging the offence. Section 181 of the CPC and section 21 of the CPC.
DUPLICITY OF CHARGES
Duplicity occurs where the charge or count charges the accused of having committed
two or more separate offences. Such a charge is said to be duplex and barred for
duplicity. It is a legal requirement that a charge should not suffer from duplicity.
Example
Section 86 of the Traffic Act creates various offences in the alternative so that one
cannot be charged with two or more but only one of the alternative. They include:
i. driving recklessly;
ii. driving at high speed.
iii. Driving in a manner dangerous to the public.
iv. Leaving the motor vehicle on the road in a manner dangerous to the
public.
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All these offences are stated in the alternative. Therefore a count charging the
accused of causing death by driving the motor vehicle recklessly and at high speed is
duplex. The charges should be expressed in the alternative:
Exceptions to the general rule on duplicity
Duplicity is allowed in certain circumstances. There are exceptions to the general
rule that count should not charge an accused with more than one offence:
1. Where the form of preferring a charge is allowed by statute. The second
schedule of the CPC authorizes charging of 2 offences in one count in respect
of:
a. The offence created under section 330 of the Penal code in respect of
false accounting;
b. Second schedule authorizes offences creates under the section 304 and
section 379 i.e. burglary and stealing. Form 9, in the second schedule.
Effects of duplicity
The law is not clear. There are two opposing views:
1. One view holds that duplicity is an incurable defect which can be cured by
amending the charge hence if found to be duplex, the accused should be
discharged.
2. The other view holds that the true test should be whether injustice or
prejudice has been occasioned on the accused by the duplicity so that where
the accused suffers no prejudice; a conviction on duplicity should stand. This
school relies on section 382 CPC which provides for finding of a sentence or
order issued by a court should be reversed or altered on appeal or revision on
account of error omission or irregularity in the charge unless the error
omission or irregularity has occasioned a failure of justice.
JOINDER OF COUNTS
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Section 135(1) allows for the joinder of charges where the accused person has
committed more than one offence. The accused may be charged in the same
proceedings for all the offences so long as they arose from the same transaction. e.g
A steals from B and also assaults him. A has committed two offences – stealing and
theft- and therefore no need of charging him in two separate proceedings. Each
offence will therefore form a charge in the same charge sheet.
Section 135(2) of the CPC provides that where the accused person is charged with
more than one offence in one charge sheet, each offence must be set out in a
separate paragraph which in law is known as a count. There is no limit as to the
number of counts against an accused person in one charge sheet. However section
135 (3) provides that where the court is of the opinion that an accused person may
be embarrassed in his defence by reasons of being charged with more than one
offence in the same charge sheet or information, it may order a separate trial on any
count.
The prosecution should however be keen not to join dissimilar charges.
Joinder is only applicable for the offences that are premised on similar
facts.
ALTERNATIVE CHARGES
In circumstances where the prosecutor is in doubt as to whether the conduct of the
accused constitutes either of the two or more of the offences, it permissible to prefer
one main charge and another as an alternative charge. An example is where one is
found in possession of stolen property immediately after commission of the offence
of theft in which case the person is the thief or the handler of the stolen property.
Where an alternative charge is preferred, a finding should only be entered in only
one charge
AMENDMENT OF CHARGES
Section 214 of the CPC provides that charges may be amended in course of the trial.
This mainly occur5s where there is a variance between the evidence given and the
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charge on record. An example is where there is a charge of theft while the evidence
given discloses the offence of handling stolen property. Evidence must tally with the
charge. Where a charge is at the verge of being rendered defective in substance:
i. There may be an amendment of the charge by application by
prosecution.
ii. Application may be done to substitutes the charge. The prosecution
then withdraws the charge and substitutes it with another one.
Effects of amendment
i. Accused has a right to plead afresh to the amended charge. This protects him
from suffering prejudice.
ii. Accused has a right to cross examine the witnesses afresh. He may demand
that any witness who had given evidence before be recalled.
iii. Prosecution may re-examine the witnesses who are re-cross examine by the
accused.
53
PLEAS
What are pleas?
 This is where an accused person is formally confronted with an accusation
of charge against him and given the opportunity to formally respond to or
answer the charge.
 Every person charged with a criminal offence is presumed innocent until
the contrary is proved- Art 50 (2) (a) Constitution.
 Art 50 (2) (b) Constitution provides that it is an accused‟s constitutional
right to be informed of the charge, with sufficient detail to answer.
 Naturally, the charge has to be communicated to the accused in a language
he/she understands. This flows from Art. 49(1)(a)(i) Constitution vesting on
an arrested person the right to be informed promptly and in a language
he/she understands the reason for his/her arrest.
 The language of the court is as follows:54
o English or Kiswahili in the subordinate courts- S. 198(4) CPC; and
o English in the High Court- S. 198(4) CPC.
 If the accused does not understand the language used at the trial, he/she is
entitled to the assistance of an interpreter without payment-Art. 50(2)(m)
Constitution.
 If any evidence is given in a language not understood by the accused, and
he/she is present in person, it must be interpreted to him/her in open court
in a language he/she understands [S. 198(1) CPC].
Possible Pleas
 Before the accused is called upon to plead to a criminal charge, the
substance of the charge must be stated to him/her by the court and
he/she be asked to answer it. According to S. 207(1) CPC, the
accused may plead not guilty, guilty or guilty subject to a plea
agreement.
o In Charo V. Republic- the High Court held that it is a fatal
omission not to explain all the ingredients of the charge to the
accused.
 There is, however, need for caution to be exercised by the court in
recording a plea as one of guilty if, for instance, all the accused says
is “guilty”. Thus in Njuki V.Republic the Court of Appeal recalled
that it has been said time and again that pleas recorded in the words
such as “I admit”, “I plead guilty”, “It is true”, “I am guilty”, “I
accept it” and so on cannot be considered as unequivocal pleas.
What happens on a plea of not guilty?
 The court will enter a plea of not guilty, and if the parties are
ready to proceed, hear the complainant and his witnesses and
other evidence- S208 (1) CPC in the subordinate court.
 The procedure is similar in the High Court under S274
What happens where the accused refuses to plead?
55
 In such an event the court shall order a plea of not guilty to be
entered for him:
o S207 (4) CPC if the proceedings are in a subordinate court;
or
o S280(1) CPC if proceedings are in the High Court.
Plea of previous conviction and presidential pardon
 If the accused pleads that he has been previously convicted or
acquitted on the same of the same offence, of that he has obtained
the President‟s pardon for his offence, the court shall first try
whether the plea is true or not, and if the court holds that the
evidence adduced in support of the plea does not sustain it, or if it
finds that the plea is false, the accused shall be required to plead
to the charge.
o S207 (5) (a) CPC subordinate courts; or
o S279 (1) (a) CPC in the High Court
 If the above pleas are found to sustainable, the accused is to be
discharged
 Remember that no person shall be tried for a criminal offence if
he has been previously acquitted or convicted of that offence- Art
50 (2) (O) Constitution
Where the accused admits the truth of the charge
 In such event, S. 207(2) CPC relating to pleas in subordinate
courts provides the following clear guidelines:
o If the accused person admits the truth of the charge
otherwise than by a plea agreement his admission shall be
recorded as nearly as possible in the words used by him,
and the court shall convict him and pass sentence upon or
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make an order against him, unless there appears to it
sufficient cause to the contrary:
Provided that after conviction and before passing sentence
or making any order the court may permit or require the
complainant to outline to the court the facts upon which the
charge is founded.
 The requirement for outlining of facts captured in the above
proviso was urged in various decisions of the High Court, notably:
Koech v. R and R v. John Njiwa
 The purpose of such outline is to show whether the accused‟s plea
is unequivocal or not and to provide material for assessing an
appropriate sentence in case of a plea of guilty. An unequivocal
plea of guilty means that the plea as recorded is incapable of any
other interpretation except that of guilty.
 The then Court of Appeal for Eastern Africa set out the following
guidelines for the recording a plea of guilty in Adan v. R:
o The charge and all the essential ingredients of the offence
should be explained to the accused in his own language or
in a language that he/she understands.
o The accused‟s own words should be recorded and, if they
are an admission, a plea of guilty should be recorded.
o 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.
o If the accused does not agree with the facts or raise any
question of his/her guilt, his reply must be recorded and
change of plea entered.
o 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.
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Plea Agreements
 As noted above, it is open to the accused to plead guilty subject to a
plea agreement- S207(1).
 Plea Agreements are provided for under Sections 137 A-137 O
CPC.
 Under S. 137A CPC, a prosecutor and an accused person or his/her
representative may negotiate and enter into an agreement in respect
ofo reduction of a charge to a lesser included offence;
o withdrawal of the charge or a stay of other charges or the
promise not to proceed with other possible charges.
 A plea agreement may provide for the payment by an accused
person of any restitution or compensation (see also Sections 177 &
178 CPC).
 A plea agreement shall be entered into only after the accused person
has been charged, or at any time before judgment.
Note
 It is important to note that S. 137A(4) of the CPC provides that
where a prosecution is undertaken privately, no plea agreement shall
be concluded without the written consent of the Attorney-General.

This provision was made under the old Constitution where the
Attorney-General was also the Director of Public Prosecutions
(DPP). Since under the new Constitution the Attorney-General is
not vested with prosecutorial powers, which have been vested in a
separately created office of the DPP, the reference to “AttorneyGeneral” must be replaced with “Director of Public Prosecutions”.
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 Under the new Constitution the power to enter into plea agreements
on behalf of the Republic under S. 137B of the CPC must also vest
in the DPP or officers authorized by him/her [see Art. 157(b)
Constitution].
 The part of the CPC relating to plea agreements does not apply to:
o Offences under the Sexual Offences Act, 2006;
o Offences of genocide, war crimes and crimes against
humanity [S. 137N of the CPC]
Accused personal participation in plea and trial proceedings
 As a general rule of practice, every plea has to be taken in the
presence of the accused. The trial itself has, as a matter of
constitutional requirement, to be conducted in the presence of the
accused: “unless the conduct of the accused person makes it
impossible for the trial to proceed” Art. 50(2)(f) Constitution.
 The above constitutional provisions re-echo a practice earlier
approved by the then Court of Appeal for Eastern Africa in
Wachira Murage & Others v. R where it was held that it was
competent for a trial court to dispense with the presence of an
accused person if he/she persists in making such an uproar that the
trial cannot proceed in his/her presence.
 The CPC provides for situations where pleas may be taken in the
absence of the accused in cases of minor offences, excluding
felonies, which usually attract sentences of fines or imprisonment
not exceeding 3 months, or both such fine and imprisonment S.
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99(1) CPC. In such cases, the court is empowered to dispense with
the personal attendance of the accused if the accused pleads guilty in
writing or appears by an advocate.
Change of plea
 Kamundi v. R. In that case, the Court of Appeal held that a
magistrate had a judicial discretion to allow a change of plea before
passing sentence or making some order finally disposing of the case.
In the process the Court of Appeal overruled all previous decisions
to the contrary.
 The Court of Appeal for Eastern Africa followed the decision of the
then English House of Lords in S. (an infant) v. Manchester City
Recorder where it had been unanimously held that a court was not
functus officio (a person who has discharged his duty, or whose
office or authority has come to an end) until sentence had been
given and that up to that stage a trial court has discretion to allow
change of plea.
Disposal of perishable exhibits after plea
 In a case where the charge relates to perishable goods and the
accused enters a plea of not guilty thereby necessitating trial at a later
date, it becomes necessary for the court to order disposal of the
goods before the trial. Care must, however, be exercised to ensure
the goods are exhibited to the court before their disposal, otherwise
they do not become evidence in the case.
 An illustration of the foregoing may be found in the case of Kechel
v.R where the accused were charged under the Price Control Act.
After pleading not guilty, a hearing date was set and an order for
bond made. The court immediately made an order for the sale of
the goods subject matter of the charge and for the proceeds of the
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sale to be deposited with the police for safe keeping. Upon trial and
conviction, the accused appealed and the High Court quashed the
conviction holding that the omission to take evidence of the identity
of the goods that were the subject matter of the charge against the
accused was fatal and the prosecution could not be said to have
proved its case beyond reasonable doubt.
THE TRIAL PROCESS
1. The case is called out, (the accused persons names and case number) by the court
clerk
2. The court prosecutor introduces him/herself to the court. Gives a summary of his
case what he/she intends to prove and informs the court, the number of witnesses he
will rely on.
3. Any preliminary issues and applications are made and dealt with at this stage.
4. Sequence of calling witnesses. The prosecution will call the complainant and his
witnesses will be heard first.
5. The witnesses will remain outside the court and only go into court when it is their
turn to testify
6. Every witness will give evidence on oath or affirmation
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7. Each witness is called by the prosecutor to proceed with examination in chief. The
purpose of the examination is to give testimony of their version of the facts in issue.
8. After this the witness will be cross examined by the defence counsel. The purpose
of cross examination is to cast doubt on the accuracy of evidence in chief given
against such party
9. The prosecutor may then ask questions after cross examination. This is reexamination where questions are only confined to matters that arose in cross
examination. New matters can only be introduced with leave of the court.
10. After the prosecution witnesses have testified, the prosecution will close the case.
11. The prosecution and defence counsel will make submissions(closing
submissions) to the court on whether a prima facie case is established by the
prosecution or not
12. The court will consider the arguments and submissions and find out if the
prosecution has made out a prima facie case against the accused to require him to be
put on his defence.
13. If the prima facie case is not made out the court in its ruling will dismiss the case
and discharge the accused.
14. During the defence hearing the accused person will exercise the options of giving
evidence as prescribed in Sec 211 CPC
15. The accused counsel will inform the court on witnesses to be called to testify on
behalf of the accused. The same procedure of examination and cross examination
will apply.
16. If the accused person gives a sworn statement and or the witnesses testify on
oath, the prosecution will make final submissions. If cross examination did not take
place then the defense counsel will make final submissions.
17. The proceedings close and the parties await the judgment of the court.
18. On the scheduled date the judgment is read out to the accused person and the
public. The court pronounces the conviction or acquittal under Section 215 CPC.
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19. If the court convicts the accused person, the prosecution will read out the
accused previous record. The record includes previous convictions, the nature, date,
sentence imposed and the date of release from prison.
20. The accused will comment by accepting or refusing. The accused person must
know what is alleged against him and has the opportunity to deny it. If he refuses
then evidence is called to confirm the same.
21. The accused person will mitigate i.e inform the court any/all issues the court
should take into account during sentencing. The purpose of mitigation is to enable
the accused person to show the court why it ought to impose one form of sentence
instead of another. The court ought to establish the history character, antecedents
and all matters relevant to punishment before assessing sentence.
22. The court will write and read the sentence meted out to the accused person and
alert him on the right to appeal within 14 days
EXAMINATION OF WITNESSES
When you call a witness there are 3 stages
1.
Examination in chief
2.
Cross Examination
3.
Re examination
EXAMINATION IN CHIEF
The object of examination in chief is to elicit facts that are favourable to the case of
the party calling the witness. In other words the exam in chief is when you question
63
your first witness. Sometimes the plaintiffs themselves. Normally they will be giving
evidence that will be favourable to their case. It is governed by two rules
(a) The witness cannot be asked leading questions – these are questions that suggest the
answer expected of that person. For example you cannot ask Was your business
running into financial difficulties last year? You should ask what was the financial
position of your business last year? The art of knowing whether a question is leading
is learnt with experience.
(b) The examination must not be conducted in an attacking manner. Usually at cross
examination you can attack but you cannot do that to your own witness. If your
witness turns hostile, you can ask the court to declare the witness a hostile witness
and once the court does that, you can then attack the witness.
When a witness is declared hostile
(i) You will be allowed to impeach the creditability of that witness;
(ii) You can ask leading questions
(iii)You can ask them questions that touch on their truthfulness and even their past
character and previous convictions.
(iv) You can also be able to examine on certain issues by leave of the judge e.g. you
can question the hostile witness on statements they made previously which is
inconsistent with their present testimony. This can help to show that the witne3ss is
giving conflicting evidence which the court is allowed to resolve when they are taking
the evidence into account.
You must take witness statements. If they give evidence inconsistent with the
statement that they signed, you can impeach their credibility and produce the witness
statement.
CROSS EXAMINATION
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There are 3 aims of cross examination
1. To elicit further facts which are favourable to the cross examining party;
2. To test and if possible cast doubt on the evidence given by the witness in chief;
3. To impeach the credibility of the witness.
Cross examination – the scope is wide one is allowed to ask leading questions,
question a witness on previous testimony, it is not restricted in any way. A good
Advocate will never forget the virtue of courtesy.
RE EXAMINATION
Once you have examined your witness in chief, the other side cross-examines your
witness. The re- examination is a kind of retrieval process. This is when you try to
heal the wounds that were opened up in cross examination. Most important, reexamination is strictly restricted to matters that arose at cross examination. The
court also has powers to ask a witness questions for the purpose of clarifying points.
TYPES OF WITNESSES
1. EYE-WITNESSES
You may be called as an "eye-witness" if you personally witnessed something happen
that is relevant to the case. You may be called by either side in the case, whether it is
a criminal case or a civil case.
When you take the stand, a Bible will be handed to you and you will repeat the oath
or affirmation that you will "tell the truth, the whole truth and nothing but the truth".
65
You will then be asked a series of questions to allow you to describe what you
witnessed.
Your evidence as an "eye-witness" will be confined to the facts, i.e. what you actually
saw, rather than any inferences or assumptions you have made from what you saw.
You will then be cross-examined by the other side.
2. EXPERT WITNESSES
You may be called as an "expert witness" by either side in a case about a matter that
is outside the ordinary knowledge of the judge or jury. For example, you may be
called as a handwriting expert or as a doctor to give an opinion on something that is
relevant to the case.
Your opinion is accepted as evidence because you are an expert on the subject and
because the court does not have the knowledge or expertise itself to form a reliable
opinion on the facts.
As an expert witness, you must also take the oath or affirmation. You will then be
asked to explain why you are an expert in the particular area, i.e. to outline your
qualifications or work experience. You will then be asked a series of questions to
allow you to give your opinion about certain facts. Finally, you will be crossexamined by the other side.
3. CHARACTER WITNESSES
There are different situations where you may be called as a "character witness":



You may be called as a character witness to give evidence of the good character of
the accused in a criminal case. You will take the oath or affirmation and you will
then be asked a series of questions to allow you to describe the accused. The
purpose of your evidence is to show that the accused is less likely to have
committed the offence because he or she is a person of good character.
You may be called as a character witness to give evidence of the good character of a
person who has already been convicted of a criminal offence. The purpose of your
evidence is to help the judge decide which sentence to impose.
You may be called as a character witness to give evidence about the good or bad
character of a party in a civil trial if that party's character is an important issue in the
case. For example, in a defamation case where a newspaper stated that a person was
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a "rogue", you may be called to give evidence about an incident you witnessed that
tends to show that the person in question was of dubious character.
You will make the oath or affirmation and then you will be asked a series of
questions to allow you describe what you know of the party's character. You will then
be cross-examined by the other side.
4 . C H IL D W IT N E SS .
Section 125 of the Kenya Evidence Act provides that 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, diseased body or mind or any similar cause.
Therefore as a general rule all persons are competent to testify including children.
Section 124 further provides that notwithstanding the provision of section 19 of
the Oath and Statutory Declaration Act, where the evidence of the alleged victim is
admitted in accordance with that section on behalf of the prosecution in a
proceeding against any person for an offence, the accused person shall not be liable
to conviction of such evidence unless it is corroborated with other material therefore
implicating him, provided that in criminal cases involving a sexual offence the court
shall receive the evidence of the alleged victim and proceed to convict the accused
person if, for reasons to be recorded in the proceedings the court is satisfied that the
alleged victim is telling the truth.
In light of section 19 of the Oath and Statutory Declaration Act, if the court is
receiving the evidence of a child of tender age, it must be of the opinion that she/he
possessed of sufficient intelligence to understand the duty of speaking the truth. If
such a child willfully gives false evidence on oath he/she will be guilty of perjury.
The voire dire process.
This is a question and answer process between the child and the court for the
purposes of establishing whether the child possesses intelligence to;


Understand the nature of an oath,
Know the difference between telling the truth and lying,
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

Prepare the child to testify truthfully,
Observe, remember and verbally describe events.
In John Otieno Oloo v R, the Court of Appeal held that failure to form an opinion
on a voire dire examination occasioned a miscarriage of justice.
In Kiune v R, the court said that ”in any proceeding before any court, a child of
tender years is called as a witness, the court is required to form an opinion on a voire
dire examination whether the child understands the nature of an oath in which event
his sworn evidence may be received. If the court is not so satisfied, his unsworn
evidence may be received if in the opinion of the court he is possessed of sufficient
intelligence and understands the duty of speaking the truth.
The procedure for admitting a child witness was set in Kinyua v R. This was a
murder where two school boys gave evidence in court. The accused was convicted
and appealed on the ground that the court erred in admitting evidence from the two
boys as the trial judge did not conduct a proper voire dire and the evidence of the
boys was not corroborated as required in section 124 of the KEA. The Court of
Appeal held that two steps were to be followed.
First, the court must ascertain whether the child understands the nature of the oath.
An investigation to this effect must be done by the court immediately the child
witness appears in court. The investigation need not be a long one but it must be
done and has to be directed to the particular question whether the child understands
the nature of an oath. If it appears that the child understands the nature of an oath,
the court proceeds to swear or affirm the child to his evidence.
Secondly, if the child does not understand the nature of the oath he‟s not necessarily
disqualified from giving evidence. The court, may still receive the evidence if
satisfied upon investigation, that the young person is possessed of sufficient
intelligence and understands the duty of speaking the truth. The investigation must
be done and appear in record. If the court is so satisfied, then it will proceed to
record unsworn evidence from the child witness.
The court also was keen to note that the boys‟ evidence was corroborated by an
expert who said that the deceased‟s death was caused by multiple body injuries and
burns.
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The above procedure was affirmed in Yusuf Opichor v R. The court set aside the
conviction and the sentence and ordered a retrial on the ground that despite the
prosecution‟s request for the child witness to be examined, there was nothing on
record to show the manner in which the child was examined and his response
thereto. It found that there was fragrant breach of the requirement of section 19 of
the Oath and Statutory Declaration Act, and the procedure set in Kinyua, and this
lead to vitiation of witness‟ evidence.
In Musikiri v R, it was said that even a child does not understand an oath.
Nonetheless he may give unsworn evidence. On the issue of corroboration,
in Johnson Muiuri, it was held that corroboration is necessary in case of unsworn
evidence.
Common Law position.
Under common law, the position is the same regarding child witnesses. The court
may take a step towards providing the child with clues aimed at refreshing her/his
memory. In addition, judges have the authority to assist the child witness feel
comfortable in the formal setting of the courtroom. The judge may; wear casual
clothes, rearrange the furniture and hung children‟s drawing, provide child size
chairs, permit the child to testify out of the witness stand. Before the trial the judge
may introduce himself to the child and allow him to explore the courtroom, it
should also be considered as of importance where the child‟s family sits during trial.
It is also advisable that the child witness is allowed to stay in the court room and feel
relaxed being around familiar faces. The number of interviews prior to the trial
should be minimal since multiple interviews might subject them to trauma all over
again.
5. WITNESSES OF UNSOUND MIND
See Sec 125 (2) Evidence Act.
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CONTENTS OF THE PROSECUTION FILE
a) Custody Record - This explains the reason why the suspect was arrested, place of
arrest, time and date. It also indicates time when the suspect arrived at the station
and his condition on arrival. A detention decision is then made to keep the suspect
in police custody possibly to await arraignment or pending further investigation.
The comment by the suspect on being informed of detention is also recorded. It
also contains the name of the officer opening the custody record. The accused
person„s personal details like names, postal and residential addresses, age,
occupation and ethnic/racial group. Name and rank of the arresting officer and
officer in charge of the investigation are also noted. Detained person„s rights are read
recorded and an interpreter, in case the suspect does not understand the language.
a) All documents relating to the report of the offence and all subsequent reports or
amended reports can be marked A(1), A(2) etc. The marking distinguishes various
reports made by different persons and enhances clarity and reference.
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b) Photographs, sketches, plans and such other material referring to the scene of
crime together with copies of any other documentary exhibits should follow the
reports. These documents can be marked as B(1), B(2)Photographs should be
mounted on foolscaps. In case they are not mounted on foolscaps, then they should
be placed in envelopes of a suitable size and the contents thereof clearly listed on the
outside.
c) Copies of reports such as post mortem, ballistic report, finger print, expert report,
handwriting expert and all other expert reports can be marked C(1), C(2).. Contents
of medical reports and such other experts whose language is technical must be
supported by a statement from the expert setting out in detail and simple language
the contents of the report.
d) Witness statements- prosecution files must have prosecution witness statements.
The complainant„s statement that forms the substratum of the charge must be on the
file. The arresting officer„s and Investigation Officer„s statements as well as all expert
witnesses„ statements and all material witnesses„ statements should be in the police
file. Every statement recorded by police will i) show the date, time and place it was
taken; ii) bear the full names age, registration and full address and all other available
identifying particulars relevant to the individual making the statement;
NB: The importance of sketches is realized when the investigating officer makes a
sketch plan of an accident scene indicating what the situation on the ground
appeared to be.
Copies of all other prosecution witnesses should then follow, including evidence of
identification parades which follows the main identifying witness. The statement of
the Police Officer conducting the ID parade will be cross referenced with statements
of each identifying witness for ease of reference, and will itself include as an addition
to the statement a copy of police form.
e) Then follows the main statement by the accused person including statements
made under caution and all supplementary statements
f) Investigation diaries of all police officers conducting the investigation which must
be full and accurate setting forth times, dates and places visited and action taken
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g) Copies of charge sheet and related documents that will be read in court to the
accused person should follow.
h) Lists of witnesses, exhibits, prisoner„s property, accused„s property, accused„s
criminal record, statistics Forms will follow.
i) The document that follows thereafter is the covering report drawn up by the
officer in charge of the investigation setting forth in detail the prosecution case as it
stands. Reference must be made to the contents of the file e.g. F1 for quick
reference. On the left hand side of the police file cover a correspondence sub-file
will be kept. This sub-file deals with requests for advice from the IO to the in charge
or any other correspondence on the matter. The sub-file also contains instructions
from gazetted officers/state counsels to IOs. Commendatory remarks and other
matters on interest arising out of the case are also recorded in the sub-file.
PRODUCTION OF EXHIBITS
Exhibit, among other things, as an object or article produced in court as part of the
evidence.
Production is normally by the person who has been keeping custody of the exhibit.
In criminal cases, this would usually be the investigating officer.
In the case of documentary exhibits, the author of the document would ordinarily
produce it, unless there are circumstances warranting its production otherwise than
through the maker.
Examples of documents which may be produced otherwise than through the maker
thereof are given in section 77 of the Evidence Act. The section provides: „77.(1) In
criminal proceedings any document purporting to be report under the hand of a
Government analyst, medical practitioner or of any ballistics expert, document
examiner or geologist upon any person, matter or thing submitted to him for
examination or analysis may be used in evidence.
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(2) The court may presume that the signature to any such document is genuine and
that the person signing it held the office and qualifications which he professed to
hold at the time when he signed it.
(3) When any report is so used the court may, if it thinks fit, summon the analyst,
ballistics expert, document examiner and medical practitioner or geologist, as the
case may be, and examine him as to the subject matter thereof.„
CLOSE OF THE PROSECUTIONS CASE
Once the prosecution has called all its witnesses, it closes its case. After the
prosecution makes the closing submissions showing that a case has been made out.
The defence counsel then can make submissions on whether the prosecution has
made out its case. If the court finds that the prosecution has made out its case then
the defendant is put on his defence. A prima facie case is one on which a reasonable
tribunal properly directing its mind to the law and the evidence could convict the
convict if no explanation is offered by the defence.
The defendant will then call his/her witnesses although he/she is not compelled to
do so. The court then explains that the accused
a) his right to give evidence under oath from the witness box in which case the
accused will be cross examined and may be asked questions by the court
b) his .her right to make an unsworn statement from the dock in which case the
accused is not liable to cross examination
c) If the accused person elects not to give any evidence the prosecutor may sum up
the prosecution case against the accused.
FINAL SUBMISSIONS
At the close of the case both the prosecutor and the accused or his or her advocate
have a right to address the court and to present submissions on both evidence and
the law. If the accused adduces any evidence the prosecution has a right to make
submissions. However if the only evidence adduced by the defence is that of the
accused, the prosecution is not entitled to reply
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TRANSFER OF CASES
Sections 78 – 81 of the CPC makes provisions for transfer of cases from one court
to another
Section 80 makes provisions for the transfer of part heard cases, where from the
evidence it appears to warrant a presumption that the case is one which should be
tried by another magistrate, he shall stay the proceedings submit the case with a brief
for purposes of transfer.
Section 81 deals with transfer by HC - that a fair an impartial trial cannot be had in
any criminal court subordinate thereto; fairness and impartiality is at the heart of
criminal trials and it is therefore provided that an accused is entitled to trial before
an impartial tribunal; therefore any question of bias or its likelihood is taken
seriously.
A judicial officer is therefore expected to disqualify themselves where they know of
any conflict that might arise either by reason of their intimate knowledge of facts or
relation to the parties. Where a magistrates fails to disclose such interest, any party
seized of such knowledge may apply for the disqualification of the judicial officer
The HC may transfer a case where there is
(a)
some question of law of unusual difficulty is likely to arise; this does not
amount an appeal but is a mechanism to enable the most competent court to
determine a legal question at the earliest opportunity possible. That 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 that an order under this section will tend to the
general convenience of the parties or witnesses; or that such an order is expedient
for the ends of justice or is required by any provision of this code
Additionally Sec 200 of CPC
There are provisions for cases that are part-heard by magistrates who subsequently
cease to have jurisdiction through whatever means a magistrate succeeding such a
magistrate may
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(a)
Deliver judgment that has been written and signed but no delivered by
his predecessor;
(b)
Where judgment has not been written and signed by his predecessor, on
the evidence recorded by that predecessor, or re=summon the witnesses and
recommence trial
Subsection 2 makes provisions where judgment has been delivered, the succeeding
magistrate is empowered to sentence or give any other or
Subsection 3 makes provisions for the accused to demand that any witnesses be resummoned where part of the evidence was recorded by another magistrate.
Subsection 4 enables the HC to set aside convictions and order a new trial where it
arises from evidence that it was not wholly recorded and the convicted court and
where in the opinion of the High Court that material prejudice has been occasioned
to the accused thereby.
JUDGEMENT
Should be read in the presence of the accused. It should be read publicly in open
court. If the trial was held in camera then the judgement should also be meted out in
camera.
Contents
a) Name of the accused and the charge
b) Must be in the language of the court
c) must contain a summary of the evidence adduced and the points for
determination
d) Must contain the decision and the reasons for the decision founded on evidence
and not speculation or theories. Judgment should specify the offence and section of
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the law under which the accused is convicted and the punishment to which he is
sentenced.
e) must be dated and signed by the magistrate in open court at the time it is
pronounced
Failure to comply with these requirements entitles the appellate court to examine the
facts of the case with a view to determining whether the irregularity occasioned a
failure of justice. After judgment is given then the accused must be informed of his
right of appeal
SENTENCING
INTRODUCTION
Sentence is a court order made in consequence of a conviction. When the judgment
convicting the accused person has been read, the prosecution is asked for the
accused person‟s previous conviction if any. This helps the court in arriving at the
most appropriate sentence for the particular accused person since each case is
determined on its own merits and circumstances. Once the record is produced, the
accused is asked to mitigate before sentence is pronounced. If any mitigation, it is
recorded and the magistrate then passes the sentence.
PURPOSE OF A SENTENCE
1. Deterrence – to deter would be offenders from committing offences.
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2. Protection of the society- actions of criminal are harmful to the society hence
the need to keep the criminal away from the society.
3. Rehabilitation- to reform the offender so that i.e. refrains from committing
further offences.
4. Sentence is punitive and for every wrong the offender must be punished.
5. Restorative justice: To address the needs arising from the criminal conduct
such as loss and damages. Criminal conduct ordinarily occasions victims‟,
communities‟ and offenders‟ needs and justice demands that these are met.
Further, to promote a sense of responsibility through the offender‟s
contribution towards meeting the victims‟ needs.
6. Denunciation: To communicate the community‟s condemnation of the
criminal conduct.
FACTORS CONSIDERED IN DECIDING THE SENTENCE
1. Motive or cause of the crime e.g. poverty, ignorance, defiance etc
2. Magnitude of the crime i.e. he should consider the effect of the crime on the
victim. e.g what harm was caused.
3. Character of the accused.
4. Prevalence or frequency of the offence in the particular locality.
5. Aggravating circumstances e.g provocation.
6. Age of the accused.
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7. Previous convictions.
8. Attitude of the accused person.
9. Uniformity in sentencing. i.e precedents.
FORMS OF SENTENCES IN KENYA
Sentences may be divided in two: punitive and non-custodial sentences.
The following penal sanctions are recognised in Kenya:
1. Death penalty
2. Imprisonment
3. Community service orders
4. Probation orders
5. Fines
6. Payment of compensation
7. Forfeiture
8. Finding security to keep the peace and be of good behaviour
9. Absolute and conditional discharge
10. Suspended sentences
11. Restitution
12. Suspension of certificate of competency in traffic offences
13. Police supervision
14. Revocation/forfeiture of licences
15. Committal to rehabilitation centres
a) Death
This is the severest sentence. Its given to people convicted of
 Murder
 Treason
 Robbery with violence
 Attempted robbery with violence
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It is thought that this class of convicts is very dangerous and they should be
permanently kept away from the society. However, the sentence cannot be meted
out to a convict who:
 Was below the age of 18 at the time of committing the offence
 Is a pregnant woman at the time of passing the sentence.
These persons are detained at the president‟s pleasure.
b) Imprisonment
The accused is kept in a secure place called prison. This can be for life or a
specified period. The president and minister in charge of prisons have power to
release prisoners. Prisoners earn remission of up to one third of their jail term
subject t good conduct. This means that if a prisoner sentenced for three years earns
remission, he will only serve two years.
c) Imposition of fine
The accused person is ordered to pay a specific amount of money to the state. A
fine may be imposed on its own, in addition or as an alternative to other sentence.
There is a default sentence in the event he accused is not able to pay the fine.
d) Probation
Geared towards reforming the accused person and rehabilitating him into the
society. For the sentence to be imposed on an offender, it must be shown that he is
remorseful and repentant. In Elija Muthee vs R, 1955 22 EACA 417 the
respondents were house servants who were convicted of stealing from their
employers and were placed on probation for two years after trial. The Republic
applied for enhancement of the sentence arguing that the one of probation was so
inadequate that it amounted to a miscarriage of justice. In setting aside the probation
sentence, the High Court held that the first consideration for placing a person on
probation is that he is repentant and remorseful for what he has done and is willing
to learn and reform in order to become a good citizen for the future. The court
substituted the sentence to nine months imprisonment.
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The convict is placed under a social worker known as a probation officer who
monitor him during the probation period and reports back to court if the offender
breaches any of the terms of the probation.
e) Discharge
Discharge which may be conditional or absolute. It is a sentence imposed on a
convict where no other sentence is suitable. The offender does not go to prison. A
conditional discharge is like an order for probation in that the convict is released on
certain conditions and for a specific period for which non-compliance may render
the convict to be returned to court for a different sentence.
f) Community service orders
Offenders are committed to community work for a specified period. Usually given
for minor offences.
g) Detention at the president‟s pleasure
This is only applicable where the offender has been found to be guilty but insane
and to young persons under eighteen years of age who have been found guilty of an
offence punishable by death.
h) Order for deportation. eg if a person is in a country illegally
i) Order for compensation. Section 24 of the PC
j) In traffic offences, the court may issue order disqualifying the driver from
driving.
CONCURRENT AND CONSECUTIVE SENTENCES
Where the offender is convicted of more than one offence, the court has discretion
to determine whether sentences will run concurrently or consecutively. If they are to
run concurrently, the offender serves the longest term. If they are to run
consecutively, the offender will serve both sentences one after the other.
APPEAL AND REVISION
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i.
High Court‟s Appellate Jurisdiction
 The High Court has, inter alia, unlimited original jurisdiction.
 It is now added in the same connection that the High Court also has
such other jurisdiction and powers as may be conferred on it, inter alia,
by any other law.
 „Any other law‟ includes the Criminal Procedure Code (CPC), which
vests in the High Court appellate jurisdiction over decisions of
subordinate courts of the first or second class made in exercise of those
courts‟ criminal jurisdiction [s. 347(1)].
 The High Court‟s appellate criminal jurisdiction may be on matters of
fact as well as on matters of law [s. 347(2) CPC].
 Note should be taken that no appeal is allowed in the case of an
accused 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
[s.348 CPC].
 The law authorizes appeal, by the Attorney-General*: when an accused is acquitted by a subordinate court; or
 where a subordinate court refuses to admit a complaint or formal
charge; or
 where a subordinate court makes an order dismissing a charge
[s. 348A CPC].
NB:* The reference in section 348A of the CPC to authorization by the
A-G was based on the old Constitution, which has been repealed by
the new Constitution promulgated on 27/08/2010. Although the
office of A-G still exists under the new Constitution,
it has been
stripped of overall power over criminal proceedings, which power
has been vested in the office of Director of Public Prosecutions
established under the Constitution [Art. 157(6) Constitution].
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However, no DPP has been appointed under the new Constitution as
yet. In the interim period, the A-G discharges the public
prosecutorial mandate [s.31(5) of Sixth Schedule to the
Constitution].
ii.
Limitation of time of appeal and mode of appeal
 An appeal must be entered within 14 days of the date of the order or
sentence appealed against but the appellate court may for good cause
admit an appeal out of time. The appellate court must admit an appeal
if satisfied that the failure to enter the appeal within the prescribed
period was caused by the inability of the appellant or his/her 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 trial court for
the judgment or order [s. 349 CPC].
 No appeal lies against a refusal by the High Court to admit an appeal
out of time [s. 361(8) CPC].
 An appeal must be made in the form of a petition in writing presented
by the appellant or his/her advocate; and every petition must, unless the
High Court otherwise orders, be accompanied by a copy of the
judgment or order appealed against [s. 350 CPC].
iii.
Summary rejection or allowance of appeal
 When the High Court has received the petition and a copy of the
judgment or order under section 350, a single judge shall peruse them
and, if satisfied there is no sufficient ground for interfering, may reject
the appeal summarily. This is despite the requirement of section 359
that appeals from subordinate courts must be heard by two judges
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except when in a particular case the Chief Justice or his/her nominee
directs that the appeal be heard by one judge [s. 352 CPC].
 Where an appeal against conviction has been lodged and a judge of the
High Court is satisfied that the conviction cannot be supported, and the
Attorney-General has informed the court in writing that he/she does
not support the conviction, the judge may summarily allow the appeal
[s. 352 A CPC].
iv.
Appellate powers of the High Court
 At the hearing of the appeal the appellant or his/her advocate may
address the court in support of the particulars set out in the petition of
appeal and the respondent or his/her advocate may then address the
court [s. 354(1) CPC].
 The court may invite the appellant or his/her advocate to reply upon
any matters of law or fact raised by the respondent or his/her advocate
in his/her address [s. 354(2) CPC].
 The court may then either dismiss or allow the appeal and issue the
requisite consequential orders [s. 354(3) CPC].
v.
Consequences of divided opinions in two-judge appeals
 Appeals from subordinate courts must be 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 of the High Court [s. 359(1)
CPC].
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 If on the hearing of an appeal the court is equally divided in opinion,
the appeal shall be reheard before three judges [s. 359(2) CPC].
vi.
High Court‟s Revisional Jurisdiction Art 165 (7)
 The High Court is empowered to 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 [s. 362 CPC].
 Where the High Court in exercise of its revisional jurisdiction calls for
the record of a subordinate court, the High Court may in the case of a conviction, exercise any of the powers conferred on
it as a court of appeal by sections 354, 357 and 358, and may
enhance the sentence;
 in the case of any other order other than an order of acquittal, alter
or reverse the order.
Notes should, however, be made on the following that no order should be made under this section to the prejudice of
the accused unless he/she has had the opportunity of being heard
either personally or by an advocate in his/her own defence;
 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;
 that in exercising its revisional jurisdiction, the High Court shall not
inflict greater punishment for the offence committed than might
have been inflicted by the court which imposed the sentence;
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 that the High Court cannot in exercise of its revisional jurisdiction
convert a finding of acquittal into one of conviction; and
 that when an appeal lies from a finding, sentence or order, and no
appeal is brought, no proceeding by way of revision shall be
entertained at the instance of the party who could have appealed [s.
364 CPC].
 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 and any judgment or order thereon may be
made or passed 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
[s. 366 CPC].
Can the High Court can „Revise‟ an order it made in exercise of its
Revisional Jurisdiction. I have not as yet been able to find a provision empowering
the High Court to „Revise‟ its decision made in exercise of its Revisional
Jurisdiction.
But there is power of „Review‟ by the Court of Appeal of acquittal or
sentence by the High Court in the following circumstances: Where a person has been acquitted in a trial before the High Court in
PS:
the exercise of its original jurisdiction and the Attorney-General has,
within one month from the date of acquittal or within such further
period as the Court of Appeal may permit, signed and filed with the
Registrar of Court of Appeal a certificate that the determination of the
trial involved a point of law of exceptional public importance and that it
is desirable in the public interest that the point should be determined
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by the Court of Appeal, the Court of Appeal shall review the case or
such part of it as may be necessary, and shall deliver a declaratory
judgment thereon [s. 379(5) CPC].
 A declaratory judgment shall not operate to reverse an acquittal, but
shall thereafter be binding upon all courts subordinate to the Court of
Appeal in the same manner as an ordinary judgment of the Court of
Appeal [s. 379(6) CPC].
 Where the Attorney-General certifies that a sentence passed by the
Court of Appeal in the exercise of its original jurisdiction should be
reviewed by the Court of Appeal, the Court of Appeal may, after giving
the accused person or his/her advocate an opportunity of being heard,
make such order by way of enhancement of sentence or maintaining
the sentence passed as is consistent with the ends of justice [s. 379(5A)
CPC].
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