COURSE CONTENT
Historical development of criminal procedure,
inquisitorial and adversarial systems of trial, structure of criminal courts,
role of courts in criminal justice, role of prosecutor in criminal justice;
powers to institute and control public criminal prosecutions, private
prosecutions, investigation of crime, search and seizure, arrest,
interrogation, indictments and charge sheets, arraignment, plea taking, joinder
of parties, constitutional protections in criminal trials, nolle prosequi,
verdict and judgment, sentencing, forms of punishment, probation, compensation and restitution, review,
appeals, prerogatives of mercy.
TOPICS COVERED:
1. THE HISTORICAL DEVELOPMENTS OF THE LAW OF CRIMINAL
PROCEDURE
2. SEARCHES
3. ARRESTS
4. CHARGES AND INFORMATION
5. PLEAS
6. CRIMINAL COURTS AND RELATED INSTITUTIONS
7. THE NATURE OF CRIMINAL PROCEEDINGS
8. THE TRIAL PROCESS
9. THE DICHOTOMY OF THE INQUISITORIAL AND ADVERSARIAL
SYSTEMS
10. JUDGEMENT AND SENTENCING
11. APPEALS AND REVISION
TOPIC 1: THE HISTORICAL DEVELOPMENTS OF THE LAW
OF CRIMINAL PROCEDURE
Law as we know it in Kenya today
originated from the western world. Our effort to trace the historical
developments of the law of criminal procedure will therefore seek to look at
these developments in the Western world, both in the continental systems and
the Anglo-American systems.
Early private
prosecution in the Germanic and Anglo-Saxon Procedure
In these early systems crime was
generally treated as private injury. As such, there was no distinction between
a civil wrong and a criminal wrong. Similarly,there was no distinction between
civil and criminal proceedings. For this reason, the early Germanic procedure
and the Anglo Saxon procedure looked upon the redress of most crimes as a
private matter to be left to the injured party. But this notwithstanding,
limits were already being set and imposed upon the method by which redress
might be taken. For instance, private vengeance was forbidden except for very
serious offences. For the rest the substantive law provided a complete scale of
payments, the amounts of which varied depending on the gravity of the injury
and rank of victim. If the injured party was successful in a judicial
proceeding against the individual named as his assailant, he would obtain
compensation.
In continental Europe, even in case in
which private vengeance hard legal sanction, the kings coerced warring parties
into submitting their dispute to a tribunal and in such cases the rulers did
not act from wholly disinterested motives, since the public authority shared in
the mount which had been paid for any injury.
Whenever a person had been injured by
the actions of another, the first step in the proceedings was the summons to
the accused person. The summons had to be made in the house of the accused and
in the presence of witnesses. It named the defendant, stated the complaint
against him and ordered him to appear before the court at its next session. If
the defendant ignored the summons he would be fined.
The tribunal to which the dispute was
submitted was a popular assembly comprised of freemen domiciled in the
jurisdiction and who had the rights and duty to attend court.
The judicial assemblies had a division
of functions between the presiding officer and the laymen who found judgement.
In the earliest law, the judgement finders may have been the whole judicial
assembly. Later, they became a committee of notables chosen by the presiding
judge or by the parties. After awhile this committee of judgement finders was
made a permanent institution and in every county the royal authority appointed
a group of notables who were entrusted with the job of judgement finding and
held office for life.
These divisions of function between
judgement finders and judges arose from the character of the early law. It was
a customary law of which the people were the repository. When there was any
doubt as to the law applicable to a case, the duty of the presiding judge was
not to impose his own view of the law, but to demand what the law was from
those who surely knew it, the people.
The proceedings were oral and followed
a very formalistic procedure. The accuser in making his complaint was bound to
a very strict formula and he accused had also to abide by a very strict formula
during his reply. Slips of the tongue and defensive speech were fatal with the
natural consequences that a class of lawyers developed to help the parties in
making their speeches. Unless the accused wished to be condemned to payment, he
had to deny the charges and he would not affirm ad lead maters of excuse.
If the accused made a denial the
judgement finders had to hand down their judgment. They did not decide the
factual question involved in the dispute, the guilt of the accused, but merely
which party could be considered prima facie right in their assertions. Such
party was then permitted to confirm his statements by the methods of proof
sanctioned by the law.
The methods of proof had very strong
religious foundations because people had faith in the interference of God in
human affairs. The religious element permeated every method of proof. In
accusations for less serious offences, the individual could clear himself by
his own oath, thus pledging for the correctness of his assertions, his own
salvation.
In the more serious cases, the
individual oath was not sufficient. It had to be strengthened by that of
persons called compurgators, who pledged their persons and their salvations as
security for the correctness of the assertions of their party, in some extra
ordinary cases the oaths of the parties with or without compurgators were not
sufficient proof. Where a party was a slave or in bad repute, his oath would
not be considered trustworthy.
Similarly, a party who was unable to
obtain a required number of compurgators would not be trusted. In certain
serious offences, such as poisoning, the defendant was not permitted to clear
himself by oath. In all these instances, the method of proof was the ordeal. Te
party was submitted to such an extra ordinary trial that only the individual in
the protection of the gods could undergo successfully. Different kinds of
ordeal were used. They included ordeal by boiling water, by hot iron, by water
and by consecrated bread. But the most esteemed method of calling upon the
direct intervention of God was trial by battle. This was the special judgement
of God reserved for free men. If the defendant failed in the ordeal or was
beaten in the duel he suffered the penalties fixed by the law for his offence.
If the complainant lost, he had to pay a
fine to the public authority.
The procedure was that in these early
days was that without a complainant there could ordinarily be no criminal
proceedings. Exceptions however existed for cases in which group or official
action could be taken without formal accusation by a private complainant. Later
the exception became the ulcer and the criminal proceedings began by private
accusers become the exception.
The earliest cases of a group action
involved cases of capture of the accused in
fragrante. An individual caught in the act of committing one of the certain
serious crimes or caught after pursuit with the hue and cry, could be executed
on the spot. He had broken the peace and was therefore an outlaw, fair game for
anybody. Later, public authorities intervened in this lynch justice system and
required that the individual caught in the act be taken before the judicial
officer. If the accused was a thief, he was brought in with the stolen articles
tied to his back. The procedure before the judge in this case was very summary.
The captor swore an oath with the compurgators that the accused was guilty of
the crime, the accused had no right of defence, no right to clear himself by
the ordinary methods of proof. He was merely ordered by the judge to be
executed.
The Beginning
of Public Prosecution
The concept of public prosecutions
borrowed from what the kings previously used to do in certain cases, when kings
needed information for governmental affairs or to settle their financial
disputes with landowners and churches, they summoned committees of neighbours
who were questioned under oath on the matters in dispute. This procedure which
was known as the inquisition was introduced into criminal cases. The royal
representative who presided over the judicial assembly was given the duty of
designating the most trustworthy men of the jurisdiction to undergo
questioning. These men were sworn to tell the truth concerning the commission
of certain crimes within the community and to reveal those suspected of having
committed them. This procedure by presentment and which was a departure from
the customary law was confined to serious offences.
The procedure put the accused person in
the same position as if a private complainant had lodged formal accusations
against him. If he denied the charge, he had to clear himself by the ordinary
forms of proof. If he was a free man of good reputation, he could clear himself
by oath either alone or with the compurgators depending again on the
seriousness of the offence. But where oaths and compurgators were prohibited,
the defendant had to submit to ordeal. The mode of proof not available to the
accused was the judicial duel, since there was no individual complainant with
whom he could fight.
With time, the church started becoming
uncomfortable with and hostile to those traditional methods of proof. Finally,
their hostility crystallized at the Luteran
Council of 1215 in the complete prohibition of trial by ordeal. This was
readily accepted and later trial by battle was also banned. The ready
acceptability of these changes was due to the fact most honest and respected
people such as tradesmen of the rising towns did not relish the possibility of
being challenged to duel when they attempted to get justice. Consequently, the
period when every able bodied man was accustomed to the use of arms was
passing. War then became the business of hired mercenaries.
In France, the complete prohibition of
trial by battle was done through the ordinance of St. Louis of 1260. An in
Germany, it was done through an imperial law of Rudolf Von Hapsburg in 1290. In
England trial by ordeals was prohibited by statute of Henry III in 1219. And
trial by battle started giving way to trial be presentment jury.
The decline in the use of customary
modes of proof coincided with the increasing application of the principle of
official as opposed to private prosecution of offences. An investigatory
procedure was introduced which could be used even where there was no private
complaint. With the concentration of political power in the feudal lords in
France and Germany, prosecution by a public official received further impetus.
Kings and nobles appointed persons called legists to protect their fiscal and
proprietary rights. Later, these legists became prosecutors in criminal cases.
The fines and confiscations decreed by the courts for offenses became a source
of profit.
In most of these stages there was no
separation between prosecutorial and judicial functions. However, the
introduction of the presentment jury is the one that led to the separation of
the two functions. Initially, the presentment jury would carry out the
investigations by questioning people and making accusations against the accused
person. The accusation meant that they had already found the accused guilty.
And once the jury had made an accusation it could hardly be expected to reverse
itself by declaring the accused innocent. When the problem of this procedure
was realized attempts were made to remedy it. The first attempt to remedy this
situation consisted in the addition of other jurors to the presiding jury,
after the accusation was made to determine guilt. Finally, a stature of Edward
III was passed in 1350, which allowed the accused person to challenge any
member of the trial jury who had previously sat on the presentment jury. This
statute definitely crystallised the concept that one jury should make the
accusation and a second jury should decide the facts.
Roman and
Canon Law Influence
These developments were later
influenced by Roman and Canon law leading to the development of the
inquisitorial procedure. After the recognition of the church by the state in
Roman times, the ecclesiastical procedure for the punishment of offences was modelled
upon the early accusatory procedure. The accuser had to make out his case but
the church could where necessary, make an independent investigation of the
charges. The church insisted upon rational evidentiary standards.
At the end of the 12th
Century, a more effective criminal procedure for the church had become
necessary in order to repress the scandalous conditions in the clergy. Several
changes were made. For instance, it became the duty of the judge to make secret
investigations of the facts in every case in which he received a complaint that
an offense had been committed and in every case in which there were public
rumours that an individual subject to the ecclesiastical courts had committed a
crime. The accused and anyone whom the judge believed to have knowledge of the
facts was examined in secret and under oath. The accused had some opportunity
to defend himself and depositions of the witnesses were communicated to him. If
investigation indicated that he was guilty he could be punished.
Similarly, under Roman law at this
stage, a magistrate was authorized to make an objective investigation of a
crime without waiting for an accuser. This practice arose in the later Roman
Empire after the system of popular prosecution had degenerated into a system of
blackmail and such strong measures had been taken against professional accusers
thereby discouraging all private complaints. The system spread very fast and
became a potent weapon for destroying opponents in the factional politics of
the cities. With the abolition of the oath and ordeal,, it became the duty of
the accuser to furnish the proofs of his accusation. Offenses were usually
brought to the attention of the investigating magistrates by the complaint
either of a private individual or of the kings prosecutor. Once the magistrate
assured himself that indeed a crime had been committed and the probable author
was determined, he could order the accused to be brought before him ether by
arrest or summons for interrogations. Interrogations developed as a fine art.
The accused was specifically prohibited from consulting counsel in making his
answers or at any stage of the proceedings.
The magistrate conducted the
interrogation in secret; his clerk being the only other person present. The act
of interrogation could be repeated as often as the judge thought necessary.
The next stage would be to summon the
witness to the magistrate once more, their earlier statements would be read to
them after which they would be asked to confirm whether they wanted to confirm
their positions or to make any changes. Next the magistrate brought in the
accused in the presence of the witnesses. He then read their statements to the
accused in their presence to see whether they would stand by them if confronted
by the accused. All this time, the accused would have been kept incommunicado.
In most cases witnesses had a strong incentive to stand by their statements
since any alterations after the second stage would subject the witness to
penalties for perjury. If the evidence reached the quantum set by law the
magistrate would convict the accused.
During the entire process, the king’s
prosecutor was an active ally of the magistrate and had in fact become attached
to the court. The trial was secret. Obviously the entire procedure denied the
accused the most elementary rights of defense as we know them today. He was
forbidden from having a lawyer. He was not informed of the charges until the
case against him was complete. If there were witnesses in his favour, he had to
indicate them from the depths of his prison. With all its rigors, this procedure
did not provide a satisfactory method of separating the innocent from the
guilty.
With time there developed a lot of
dissatisfaction. The 18th century philosophers such as Montesquieu,
Beccaria and Voltaire led the onslaught. They indicated clearly the weaknesses
in the procedure. To these philosophers of the Age of Reason nothing could be
more unreasonable than a procedure which in Voltaire’s words seems to point
only to the “destruction of the accused” and is as terrible for the innocent as
for the guilty. These philosophers saw the criminal procedure as the most
potent instrument for enslaving the individual. This lead Montesquieu to
declare that” it is the on the perfection of the criminal laws that the liberty
of the individual depends” this sparked off very major reforms in the area of
criminal procedure. These reforms are the ones that led to the development of
modern rule of criminal procedure.
In England for instance, the
inquisitorial system was abandoned and replaced by an accusatorial system. The
developments were moving in favour of the accused. He became entitled to a
public trial with judgement being base on evidence presented in open courts. He
had to be given facilities for defense. He became entitled to silence.
By the time the English common law was
being received into the colonies Kenya included, it had already acquired these
modern aspects.
TOPIC 2:
SEARCHES
Introduction
An important tool in the prevention,
investigation and detection of crime and the collection and gathering of
evidence to be presented in a court of law in proof of the commission of an
offence is the search. A search is an attempt to find something; it is the
careful examination to find hidden items.
There are tow types of searches
recognized in law;
(i)
Search with a Warrant;
(ii)
Search without a Warrant.
1.
Search with a Warrant
A search warrant is a written permit
issued by a Court or a magistrate allowing a search upon proof on oath that a
thing on, with or in respect of which an offence has been committed or which
may be necessary for the investigation of an offence needs to be seized and
taken before a court to be dealt with according to law. It authorizes a police
officer or a person named within it to search a place, building, ship aircraft,
vehicle, box or receptacle for the purpose of conducting an investigation or
obtaining evidence. See section 118 of
the CPC
A police officer may lay any lawful
complaint before a magistrate and may apply for a search warrant as may
lawfully be issued against any person. Section
19 of Police Act
The contents of search warrants are set
out under section 122 as read together with section 102 of the CPC as follows;
(a)
The offence with which the person, place or thing being
searched is related;
(b)
The name or description of the person, place or thing being
searched;
(c)
The person to execute the search warrant;
(d)
An order directed to the executor of the warrant to seize
the products of the search and produce tem in court issuing the warrant or any
other Court with jurisdiction, to be dealt with in accordance with the law.
The warrants remain in force until it
is executed or until it is cancelled by the court which issued it. Section 122(3) of the CPC.
A search warrant may be directed to one or
more police officers of the area within which the court has jurisdiction. The
court may also direct that the warrant, where it is necessary to be executed
immediately; be so executed by any other person where no police officer is not
immediately available. Section 122 read with 104.
The warrant may be executed at any
place in Kenya at any time between sunrise and sunset on any day including
Sundays or at any time the court authorizes.
A person who owns or resides in a
building or place liable to search must allow the executor of the warrant free
ingress and egress and afford all reasonable facilities for a search therein.
The police officer must produce the search warrant that validates his entry
into the building being searched, the police officer may break open any outer
or inner door or window of a building where ingress or egress cannot be so
obtained.
The conduct of searches consists a
serious intrusion upon the privacy and property of a citizen. The English
Judge, Lord Denning in the case of Chic
Fashions (West Wales) Ltd Vs Jones [1968 ] 2QB 299 first asserted that
every man’s house is his castle, meaning in principle a constable (policeman)
is never in principle allowed to enter and search a man’s house. However there
are certain exceptions to this rule. He stated;
[N]o man’s house is to be used as a hiding place for thieves
or receptacle for stolen goods. If there is reasonable ground for believing
that there are stolen goods in the house, information can be laid before a
magistrate on oath and the magistrate can then issue a warrant authorizing a constable
to enter the house and seize the goods.
The privacy of one’s person and home is
a fundamental right under Article 31 of
the Constitution. Under the constitution every person has the right to
privacy. However this right is not absolute. The law indeed provides for the
use of search warrants while in reality amount to a judicial certification of
derogation to an individual’s right to privacy. As such a balance must be
struck between individual rights and those of the society. For this reason, the
power to issue warrants is only vested in the court or the magistrate.
Whereas in practice the courts do not
insist on too high a threshold of proof before issuing search warrants, there
must at least be a reasonable basis for the same. This was reflected in the
case of Vitu Ltd Vs The Chief Magistrate
of Nairobi and 2 others HC Misc Application No. 475 of 2004 where Osiemo J
held that it is expected that when a police officer or any other investigator
approaches the Court for a warrant, he must show reasonable suspicion of an
offence being about to be committed or having been committed.
Where a police officer enters a house
with a search warrant he may not only seize goods in respect of the warrant,
but also any other good which he believes on reasonable ground to be material
evidence on a charge of stealing or receiving against the person in possession
of them or anyone associated with him. This was the holding in the English case
of Pringle Vs Bremmer and Stirling
[1867] 5 Macph 55.
In Crazier V Cundey 108 E.R 49, it was held that a constable could
properly seize other goods not mentioned in the warrant of they afforded useful
evidence as to substantiate the charge for which the warrant was issued.
Searches on a person
A person may be searched upon
reasonable suspicion of concealing about the person an article for which search
should be made. If that person is a woman, the search must be made by another
woman with strict regard to decency.
The
Evidence Act also contains provisions in aid of investigations. Where it is
proved on oath to a judge or magistrate that in fact or according to reasonable
suspicion, the inspection of any banker’s book is necessary or desirable for
the purpose of any investigation into the commission of an offence, the judge
or magistrate may by warrant authorize a police officer or another person named
therein to investigate the account of any specified person in any bankers book. Such warrant is sufficient authority for
the production of any banker’s book as may be required for scrutiny by the
officer or person named in the warrant. The officer may take copies of any
relevant entry or matter in such banker’s book. Section 180 (1) of Evidence Act.
However a banker is not bound to
disclose the status of a customer’s account except on reasonable ground such as
where the disclosure is under compulsion by law or there is a duty to disclose
or where the interest of the bank requires the disclosure or the discloser s
done by the express or implied consent of the customer. This was the holding in
the High Court in Erastus Kibiti Stephen
Vs Euro Bank Ltd and Another [2003] e KLR (Miscellaneous Criminal Application
No. 9 of 2002)
Professional Privilege
A search, even with a warrant may not
be directed towards material which cannot be legally seized. Such includes
correspondence between an accused person and his spouse, lawyers and doctors.
This applies to documents which are in the possession of a person himself and
not a suspect or a third party. The reason is that such persons have a right to
refuse to produce the documents because they are privileged. The right is lost
if the person is suspected to have participated in a criminal act. This means
that a lawyer’s files can be searched and examined if the person is party to
the criminal acts. Consent is another waiver to this rule.
Can a Search warrant be issued more than once?
In Butler Vs Board of Trade [1971] Ch
680, Goff J, expressed himself as;
There is no express limitation of time for which a warrant
remains in force and the only restriction upon the power of search is that it
must be executed between sunrise and sunset-during the daytime. Parliament did
not intend such warrant to subject the owner to an unlimited number of searches
throughout an unlimited period of time. It was construed that a warrant only
authorizes a single entry, search and seizure. After that entry, search and
seizure, the warrant Is excluded and spent and a second warrant must be
obtained to authorize a second entry”
2. Searches without a Warrant
A police officer or other persons
authorized in writing in that behalf by the Commissioner of Police may stop,
search and detain any aircraft, vessel or vehicle in or upon which there is
reason to suspect that anything stolen or unlawfully obtained may be found; or
where there is reason to suspect that anything stolen or unlawfully obtained
may be found or where there is reason to suspect that it has been used or
employed in the commission or to facilitate the commission of an offence.
Any stop, search or detention thereof
should be conducted by an authorized person contrary to which an accused may be
acquitted. This was the holding in the case of Atibu Juma Vs Republic [1983] e KLR.
A police officer as well as an
administration police officer may also search any person for whom a warrant of
arrest has been issued or who may be reasonably suspected of having in his
possession or conveying in any manner anything stolen or unlawfully obtained or
of being guilty of a cognizable offence.
Where a person in authority over
certain goods or a place to be searched gives consent to search, a police
officer may search such place without a warrant. The police officer is under no
duty to tell the person being searched that he may refuse to be searched. It
would also appear that if the consent to search is procured by trickery, the
ensuing search is not thereby invalidated.
If an administration police officer
reasonably suspects that a person in respect of whom a warrant of arrest is in
force, or who is reasonably suspected of being guilty of a cognizable offence
is in any premises, he may demand that the person residing in or being in
charge of such premises allow him free ingress thereto and afford him all
reasonable facilities for a search therein. Where, notwithstanding notification
of his authority and purpose, ingress cannot without unreasonable delay be so
obtained, the officer may without warrant, enter such premises and search
therein and may if necessary break any window or door. Section 29 of the CPC.
The same “delay principle” would apply in matters where the search requires a
warrant but any delay would defeat the purpose of the warrant since evidence
would have been destroyed or relocated somewhere. Such would also be the case
where there is danger the goods to be searched would pose to the public. In
these circumstances it would be permissible to conduct a search without a
warrant.
An officer may stop, search and detain
any vehicle or vessel which he has reasonable cause to suspect is being
employed in the commission of, or to facilitate the commission of an offence
absent a warrant.
TOPIC 3: ARRESTS
Introduction
As it is in the nature of persons who
have committed or are suspected of having committed offences to seek to elude
the criminal process by which they may be adjudged guilty and punished
accordingly, a lawful mechanism has to exist by which such persons may be
apprehended, restrained and brought before court to be dealt with in accordance
with the law. That mechanism is arrest. An arrest is a restraint upon a
person’s liberty and may take the form of physical confinement.
General
provisions relating to Arrests
In making an arrest, the policeman or
nay person effecting the arrest may touch or confine the body of the person
being arrested, unless the person being arrested voluntarily submits to custody
by word or action. Where a person forcibly resists the endeavour to arrest him
or attempts to evade the arrest, the person effecting the arrest may use all
means necessary to effect the arrest.
The force applied to effect the arrest
or to counter any attempt to resist apprehension must, however be reasonable. Section 21 of CPC
In essence, the person effecting the
arrest:
(i)
May but need not touch the person to be arrested;
(ii)
May use all means necessary to effect the arrest, including
reasonable force.
Pursuant to a warrant, the person
effecting an arrest may enter any place where the person to be arrested is
hiding or is reasonably suspected to have entered and concealed himself an
demand that the occupiers of that house allow him free ingress and reasonable
facilities for the search. Section 22(1)
of the CPC
Where ingress is not possible, a police
officer is at liberty to immediately break open any outer or inner door or
window of a house or a place to effect entry so long a he has a warrant. Even
without a warrant, he may still so break so as to pre-empt the escape of the
person that would be afforded by delay in obtaining a warrant. Similarly, the
person effecting an arrest is authorized to break out of any house or lace in
order to liberate himself or any other person who having lawfully entered for
the purpose of making an arrest, is detained therein.
The breaking action is only valid where the person effecting an arrest:
(i)
Has made notification of his entry;
(ii)
Has stated his purpose;
(iii)
Has made demand of admittance
(iv)
Has been denied or is unable to gain admittance.
Where a place is an apartment in the
actual occupancy of a woman who according to custom does not appear in public,
the person effecting an arrest must before entering those premises give notice
to the woman to withdraw and must afford her every reasonable facility for
withdrawing, whereupon he may break open the apartment and enter it. Section 22 (2) of CPC.
The person arrested should not be
subjected to more restraint than is necessary to prevent his escape.
The person effecting an arrest is at
liberty to search the person being arrested and place into safe custody all
articles, other than the necessary wearing apparel they have on them. Section 25 of the CPC
A police officer or any other person
authorized in writing by the Commissioner of Police may stop, search and detain
any aircraft, vessel or vehicle in or upon which there is reason to suspect
that anything stolen or unlawfully obtained may be found or is reasonably
suspected to have been used or employed in the commission or to facilitate the
commission of an offence. He may do the same to any person reasonably suspected
of having in his possession or conveying anything stolen or unlawfully
obtained. Section 26(1) of the CPC
The State is fully immunized from
liability for any loss or damage suffered by any person by reason of the
detention of aircraft, vessel or vehicle under the foregoing circumstances as
such person is not entitled to damages or compensation.
In case a search uncovers offensive
weapons concealed in the person being arrested, the police officer shall
deliver them to the court or the officer before which or whom the officer or
person making the arrest is required by law to produce the person arrested. Section 28 of the CPC.
Arrests may be of two kinds:
(i)
Arrests without a warrant;
(ii)
Arrests with a warrant.
1. Arrests without a warrant
There are instances when an arrest may
be lawfully effected without a Court order or direction. Under Section 29(1) of the CPC they include
te apprehension of persons who:
A police officer may, without an order
from a magistrate and without a warrant, arrest—
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(a)
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any person whom he suspects upon
reasonable grounds of having committed a cognizable offence;
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(b)
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any person who commits a breach of the
peace in his presence;
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(c)
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any person who obstructs a police
officer while in the execution of his duty, or who has escaped or attempts to
escape from lawful custody;
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(d)
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any person in whose possession
anything is found which may reasonably be suspected to be stolen property or
who may reasonably be suspected of having committed an offence with reference
to that thing;
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(e)
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any person whom he suspects upon
reasonable grounds of being a deserter from the armed forces;
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(f)
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any person whom he finds in a highway,
yard or other place during the night and whom he suspects upon reasonable
grounds of having committed or being about to commit a felony;
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(g)
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any person whom he finds in a street
or public place during the hours of darkness and whom he suspects upon
reasonable grounds of being there for an illegal or disorderly purpose, or
who is unable to give a satisfactory account of himself;
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(h)
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any person whom he suspects upon
reasonable grounds of having been concerned in an act committed at a place
out of Kenya which, if committed in Kenya, would have been punishable as an
offence, and for which he is liable to be extradited under the Extradition
(Contiguous and Foreign Countries) Act (Cap.
76)
or the Extradition (Commonwealth Countries) Act (Cap.
77);
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(i)
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any person having in his possession
without lawful excuse, the burden of proving which excuse shall lie on that
person, any implement of housebreaking;
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(j)
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any released convict committing a
breach of any provision prescribed by section 344 or
of any rule made there under;
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(k)
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any person for whom he has reasonable
cause to believe a warrant of arrest has been issued.
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It is clear from the aforesaid
provision that a police officer is entitled to effect an arrest without a
warrant, so long as he has reasonable grounds for entertaining suspicion at
that material time. Subsequent events may show the officer wa sin error at the
time but the arrest will not thereby be rendered unlawful. This has been the
law for more than a century as may be seen from the case of Lord Diplock in the
case of Dillon Vs O’Brien and Davis
[1887]16 Cox CC 245,
“In the case of an arrest, reasonable
grounds for belief in guilt at the time of arrest are sufficient justification,
though subsequent information or events may show those grounds to be deceptive”
An officer in charge of a police
station may also arrest without a warrant any suspicious self concealers; being persons found within the limits of the
station in circumstances suggestive that they are taking precautions to conceal
their presence with a view to committing a cognizable offence. Section 30 of the CPC
Incase the officer requires a
subordinate to effect that arrest, otherwise than in his presence, he shall do
so by order in writing specifying the person to be arrested and the offence or
other cause for which he is to be arrested. Section 31 CPC
A private person can arrest one who
commits a cognizable offence or one he reasonably suspects to have committed a
felony. This is a citizen’s arrest.
2.
Arrests with a Warrant
An arrest warrant is a written order issued by a magistrate for
the apprehension of a person who fails to appear in court at an appointed time
in relation to an offence committed by him or for a witness who fail to appear
in Court to give evidence. Warrants of arrest are issued by Court for witnesses
who are bonded but fail to appear in Court to give evidence and for those whose
accused persons who have jumped bail or absconded . They are directed to a
police officer or any other person who will effect arrest.
Section 300 of the CPC states that if summons have been
issued directed at a person against whom an accusation has been laid, the Court
may before or after the time of hearing issue a warrant of arrest against the
person so summoned. If the accused doe not appear at the time and place
appointed in the summons and his personal attendance has not been dispensed
with the court may issue a warrant to apprehend him and cause him to be brought
before it and unless a complaint has been made upon oath. Section 101.
The court may issue a warrant of arrest
for an accused who fails to appear for a mention as happened in the case of Hakim Alsafa Vs Republic [2007]e KLR
(Miscellaneous Criminal Application No. 301 of 2007]
In obtaining a warrant of arrest, the
police lay written information before the magistrate and on oath that a person
has or is suspected of having committed an offence. Issuance of warrants
involves exercise of judicial discretion. As such, a warrant of arrest should
not be issued unless the offence in question is indictable or is punishable
with imprisonment. Further the court ought to be satisfied that the person
named in the warrant would not voluntarily appear in attendance as required
hence the necessity of a warrant.
Validity of warrants;
Every warrant must bear;
(i)
Must bear the signature of the judge or magistrate issuing
it;
(ii)
Must bear the seal of the court;
(iii)
Must bear the name of the person to whom it is directed;
(iv)
Must bear the offence the person is charged with;
(v)
Must bear the name or description of the person to be
apprehended;
(vi)
Must order the person to whom to whom is directed to
apprehend the subject for the purposes of bringing him before the court issuing
the warrant; or before some other court having jurisdiction in the case, to
answer to the charge therein mentioned and to be dealt with further in
accordance with the law.
The warrant remains in effect until it
has been executed, lifted or cancelled by the officer of the law or the Court
that issued it. Section 102 (3) CPC.
A warrant of arrest may be executed at
any place in Kenya. Section 109 CPC. Where it is to be executed outside the
local limits of jurisdiction of the issuing court that court may forward it by
post or otherwise to magistrate in whose local lifts of jurisdiction it is to
be executed. The receiving magistrate will then endorse it and cause it to be
executed. Section 110 CPC.
Irregularities and defects in a warrant
Under the CPC, any irregularities or
defects in a warrant be they in form or substance as well as any variance
between it and a written complaint or between the warrant, the complaint and
the prosecution evidence at the trial do not vitiate or otherwise affect the
validity of any proceedings at or subsequent to the hearing of the case. This
was so held in the case of James Maina
Njuguna Vs Republic [2008] e KLR (Criminal Appeal No. 43 of 2007. Where an
appeal on the ground that the mode of arrest had no nexus to the crime was
rejected with the Court saying the evidence adduced was consistent with the
warrant.
If it appears to the Court that the
variance is such that the accused has been thereby deceived or misled, it may
merely adjourn the hearing of the case to a future date.
Can a Warrant of Arrest be used more than once?
The CPC is silent on this issue. In the
case of Dickenson Vs Brown [1974] 1 Esp
218 the Kings Bench doubted the legality of a second arrest of the
plaintiff upon a warrant which had already been used to effect an arrest on an
earlier occasion. It would amount to an abuse of the instrumentality of an
arrest warrant were it to be executed repeatedly and would cause oppression.
TOPIC 4: CHARGES AND INFORMATION
Institution of Criminal Proceedings
Proceedings may be instituted in court
either by the making of a complaint or by the bringing before a magistrate of a
person who has been arrested without a warrant. Section 89(1) of the CPC.
A person who believes on reasonable and
probable cause that an offence has been committed by another person may make a
complaint thereto a magistrate having jurisdiction. Section 89(2) of the CPC.
The complaint may be written or viva
voce. Where it is viva voce, it is reduced in writing
by the magistrate and in either case both the magistrate and the complainant
sign the complaint. The magistrate then draws up or causes to be drawn up and
signs a formal charge containing a statement of the offence with which the
accused is charged, unless the charge is signed and presented by a police
officer. If the magistrate is of the opinion that a complaint or formal charge
made or presented does not disclose an offence, he may make an order refusing
to admit the complaint and must record his reasons for that.
Once he has received and signed the
charge, the magistrate my then issue either a summons or a warrant to compel
the attendance of the accused person before a subordinate Court having
jurisdiction to try the offence alleged to have been committed. Section 90 (1) CPC.
A summons or warrant may be issued on
any day including a Sunday. The facts that there is a different civil procedure
given by the law to remedy a situation does not mean that where investigations
have been undertaken and a criminal offence disclosed, the person fund to have
also contravened the criminal law cannot be charged with a criminal offence.
This was the holding in the Kinyanjui Vs
Republic [2004] KLR 364. Section 193A has introduced the concurrent
existence of criminal and civil proceedings in the following terms:
Notwithstanding the provisions of any
other law, the facts that any matter in issue in any criminal proceedings is
also directly or substantially in issue
in any pending civil proceedings shall not be a ground for any stay,
prohibition or delay of the criminal proceedings.
The Charge Sheet
The terms Charge and information are
used interchangeably to refer to the statement of the offence or offences which
a person is accused of and the particulars thereof. The charge states concisely
the offence which the accused person is alleged to have committed. It is the
process by which the accused and the magistrate or judge is informed of a
suspected offence.
No case may proceed without a charge.
In the Ugandan case of Martino Judagi
and Others Vs West Nile District Administration [1963] E.A 406, Udo Udoma
CJ held that the failure to frame a charge in the subordinate court was a
fundamental and fatal mistake. The trial was declared a nullity and a retrial
ordered. So long as a charge contains a statement of a specific offence or
offences with which the accused person is charged, together with such
particulars as may be necessary to give reasonable information as to the nature
of the offence, it is deemed to be sufficient. Section 134 CPC
Joinder of Counts
Joinder refers to the action of
charging together.
Joinder of counts refers to the
charging together of a number of offences be they felonies or misdemeanours in
the same charge sheet or information. Joinder is permissible if the offences
charged are founded on the same facts or form or are part of series of offences
of the same or a similar character. Section
135 (1) of the CPC.
From a practical standpoint joinder of
counts is both convenient and expedient in that it saves times and avoids
multiplicity of trials revolving around the same set of facts. It is also
advantageous to the accused in that it not only saves him legal cists but also
affords him the opportunity of serving concurrent sentences in the event of
conviction In Ngibuini Vs Republic
[1987] KLR 517, the Court expressed the view that where there is a single
complex of offences connected in kind and time it is undesirable through not
unlawful for the accused to be arraigned on separate trials. It is also
undesirable to have separate trials as it denies the court the opportunity to
look at the accused vis a vis the series of offences as a whole when sentencing.
The rule is that where an accused
person is alleged to have committed more than one offence, he may be charged in
the same proceedings with all the offences. This, however should not embarrass
the accused person or render his appeal (if any) nugatory or a waste of Court’s
time. In Godfrey Mandengwa Vs Republic
[2004] e KLR (Criminal Application No. 627 of 2004), the Court of Appeal
stated that the appellate courts have the jurisdiction to re-evaluate facts of
a case and the evidence to satisfy themselves that the accused has not been
prejudiced or embarrassed in answering the charge framed.
Where offences which are not founded on
the same facts or do not form part of series or similar character are charged
in the same charge sheet or information, the same will be ruled improper as it
amounts to a misjoinder.
In the case of Republic Vs Gulamhussein Jetha, [1946] 13 E.A.C.A 107, the appellant
was convicted of one count for obtaining money by false pretences ad on another
of giving false information. The facts alleged were that the appellant had
obtained money by false pretences with intent to defraud on 27th
June and that on July 8th he made a false report that his house had
been burgled and the money stolen. Ten days had lapsed between the obtaining of
the money stolen. The Court of Appeal held that it was doubtful whether the
charge in respect of the false report could be said to have been founded on the
same facts as the other charge and that it might therefore have been more
properly made the subject of a separate trial.
In Joseph
Vs Republic, [1954] 21 E.A.C.A 311, the appellant was charged on three
counts wounding X with intent to cause grievous bodily harm, malicious damage
to property and obstructing a police
officer in the course of his duty. The first count contained no words to
indicate that the alleged wounding with intent was in any way connected with
the third count of attempting to resist the arrest. It was clear from the
evidence that the three offences occurred in a series of attempts to resist
arrest. This was not clear from the charges. The Court of Appeal considered
that the third count was wrongly included in the charge. Hence there was a
misjoinder.
Where before a trial upon information
or at any stage of the trial, the Court is of the opinion that the accused may
be prejudiced or embarrassed in his defence by reason of being charged with
more than one offence in the same information, or that for any other reason it
is desirable to direct that the accused should be tried separately for any one
or more offences charged in an information, the Court may order a split
trial also known as separation of trials respecting any
count of counts of information. Section
275 (4) of the CPC.
In Mongella
Vs Republic [1934] 1 E.A.C.A 152,
it was held to be undesirable to charge an accused person on more than one
charge of murder. The Court also said, in the case of Velezi Kashilzs Vs Republic [1954] 21 E.A.C.A 389, that a charge of
murder ought not to be laid with a count of another lesser offence. The basis
for this distinction where murder is concerned must lie in the fact that it is
the most serious offence there could ever be, attracting the ultimate penalty
and it ought therefore to stand singly.
Joinder of Persons
This refers to the joining or charging
together of two or more accused persons within the same charge or information
and trying them together within the same proceedings.
The following may be so joined;
(i)
Persons accused of the same offence committed in the course
of the same transaction;
(ii)
Persons accused of an offence and persons accused of
abetment, or of an attempt to commit the said offence;
(iii)
Persons accused of two or more offences of the same kind
committed jointly within a period of twelve months
(iv)
Persons accused of
different offences committed in the course of the same transaction;
(v)
Persons charged with
offences relating to theft or fraudulent acquisition of property between whom
possession or retention of the said property has been transferred;
(vi)
Persons accused of an offence relating to counterfeit coin,
or of abetment or attempting to commit any such offence.
In Republic
Vs Ndungi and others [1906-08] 2 EALR 85, some herdsmen were convicted of
contravening the Disease of Animals Ordinance prohibiting the movement of
cattle in a proclaimed area. It was held that to try five persons together for
different offences committed at different times and places is an irregularity
vitiating the trial.
In Republic
Vs Hassan wa Saleh and Another [1906-08]
2 EALR 105, it was held that two persons it was held that two persons
accused of raping two different women separately albeit at the same time and
place could not be tried at the same trial, the transaction not being the same.
In Malebe
Vs Republic [1982] KLR 320, the three appellants faced separate counts of
stealing by servant in once charge sheet. The particulars stated that the
offences were committed on separate dates. The items alleged to have been
stolen were different. They were not charged as having had a common intention.
They appealed against their convictions and sentences. It was held by the High
Court that a joint charge against several accused persons alleged to have
committed separate offences on different dates amounts to a misjoinder and such
charge is defective. There should have been a separate charge for each person
and separate count for each alleged offence committed on a different date.
Rules for the framing of charges
The basic principle of law governing
the framing of charges is that an accused should be charged with an offence
known to law and this has its foundation in the Constitution. The offence
charged should be disclosed and stated in a concise, clear and unambiguous
manner, in ordinary language that eschews legalese so that the accused may be
able to understand it and plead thereto from a point of knowledge. It will also
enable an accused person to prepare his defence to the charge. This principle
was re-stated in Sigilai and another Vs
Republic [2004] 2 KLR 480.
Statement of offence
A count of charge or information must
commence with a statement describing the offence charged, called the statement of offence. The statement
of offence should offer a brief description of the offence in ordinary language
avoiding as far as possible the use of technical terms. It is not necessary to
put all the elements of the offence within the statement. But the courts have
taken the view that where the offence is a technical one, they should be
stated.
If the offence charged is one created
by a statutory enactment, it must contain a reference to the section of the
enactment creating the offence. The correct procedure is to specify in the
statement of the offence, not the section that defines the offence but the one
that prescribes the punishment thereof. In Oremo
Vs Republic [1990] KLR 290, a conviction was quashed where the accused was
charged with a non-existent offence.
It is essential and imperative that the
charge should clearly set out the offence as was stated by the Court in Stephen Chege Vs Republic [1983] e KLR,
The Court should see to it that the
accused person fully understands the charge being read to him and to this end,
the record should show that the offence with which an accused person is being
charged has been fully explained to him with this requirement becoming more
critical where the offences are serious ones. One way of ascertaining this, is
by ensuring that the charges are written out by the magistrate himself.
In Republic
Vs George Samuel Sowe, the Court said,
It would be preferable that the offences
with which the accused is charged should be written out by the magistrate in
all cases. Such a course should certainly be adopted in cases where a heavy
sentence may be imposed.
As a measure to aid or increase clarity
and banish confusion, the court suggested quite properly in Mwangi and another Vs Republic [1988] KLR
803, that it is desirable where different offences are committed to draft
the charges in relation to those offences under separate and distinct
paragraphs or counts so that the accused person knows precisely what he to
defend himself against.
Particulars of offence
Particulars if the offence should be
given. These should be in ordinary language. Technical terms should be avoided.
The essential ingredients of the alleged offence such as the date, place, time
and circumstances in which it was committed must be stated,
In the case of Tembere Vs Republic [1990]
KLR 353, the accused was charged with handling stolen property. The
particulars of the charge merely stated that he handled. It did not state the
nature of handling whether by receiving, retaining etc and more importantly, it
did not state that the possession or receipt was dishonest. The High Court held
that the charge did not disclose the offence of handling stolen property and
the facts stated did not contain all the elements of the offence. As result the
accused did not validly plead guilty to the charge of handling.
In Wilson
Vs Republic [1955] 22 E.A C.A 372, it was held that the day to be stated in
a charge of homicide should be the day in which the wrongful act was committed
and not the death occurred.
In the case of Republic Vs Loibori [1949] 16 E.A.C.A, the charge gave no
particulars as to the place of the offence except to state that it occurred in
the Northern Province of Tanganyika. It was held that a reference to what may
be a vast territorial area can hardly be said to indicate to an accused person
with reasonable clearness the place at which it is alleged the committed the
offence.
Where there are two or more accused
jointly charged, the Courts must frame the charges against each with sufficient
particulars as to the part played by each accused.
Forms
The second schedule to the Criminal
Procedure code contains forms setting out the manner in which various offences
should be charged as to guide to the manner in which offences should be stated
in informations. The framing of charges should be in accordance with the said
forms or forms conforming thereto as nearly as may be but the statement of the
offence and particulars of offence may be varied according to the circumstances
of each case.
The use of the forms available in the
Second Schedule is expressly in obligatory terms and any variation from the
wording of these forms may be, in certain circumstances fatal. Thus for
instance, the names of all accused persons should be given in full and not
merely, for example, “X and 6 Others” This was the holding in Republic Vs Yonasani Egalo and others 9
EACA 65
Counts
When more than one offence is charged
in a charge sheet or information a description of each offence so charged must
be set out in a separate paragraph of the charge or information. Each of these
paragraphs is called a count.
Where a charge or information contains
more than one count, the counts must be numbered consecutively.
It is unnecessary in a count, charging
a statutory offence to negative any exception or exemption from or
qualifications to the operation of the enactment creating the offence.
In Mwaitige
Vs Republic [1961] E.A 470, the
appellant was charged on four counts with illegally selling over five tons of
coffee to a dealer.. the charge set out in a single statement brief particulars
of the alleged statutory offence alleging contravention of a certain
Agricultural Order, followed by particulars of the four occasions on which it
was alleged that the order had been contravened. The four separate sets of
particulars in the counts were not preceded by statements of the offence. This
was held by the Court of Appeal to have been irregular as each count is a
distinct offence and should contain a statement of the offence of its own.
Duplicity
Any count that charges within it more
than one specific offence is said to be bad for duplicity. It is a fundamental mistake and not normally curable.
The reason for this is that when a charge is duplex and an accused person goes
through a trial, the fairness of the process is fundamentally compromised as it
is not clear to him what the exact charges that confront him are. As a result,
he may not be able to prepare a proper defence and this is clearly prejudicial
and may amount to failure of justice.
In the case of Laban Koti Vs Republic [1962] E.A 439, the Court held that in
deciding whether there is duplicity in a charge, the test is whether a failure
of justice has occurred or the accused has been prejudiced.
In Omboga
Vs Republic [1983] KLR 340, the
Court held that injustice will be occasioned where evidence is called relating
to many separate acts all contained in one count because the accused cannot
possible know what offence exactly he is charged with.
In the case of Saina Vs Republic]1974] E.A
the accused person faced a single count of house breaking, theft and handling
stolen property. On appeal, the High Court was of the view that the charge was
an incurable illegality.
The Court in Republic Vs Sowedi Kauta [1933] 19 KLR 105, held that a charge
alleging the murder of two persons on in count was bad in law. There should
have been two separate counts.
In the case of Republic Vs Mongella, the accused person was convicted of the
murder of six persons by wilfully setting fire on the hut which they were
asleep. The charge of murdering the six was laid in a single count. It was held
he should have been charged with six separate counts.
In the case of Nzioka Vs Republic, [1987] KLR 613, the appellant was convicted and
sentenced for the offence of causing death by dangerous driving. Part of the
charge read:
“….drove
the said vehicle on the said road recklessly and at a speed or in a manner
which was dangerous to the public”
On appeal it was argued that the charge
was bad for duplicity in that whereas the relevant position of the law created
several offences, it was not specified which one appellant had committed. The
court held that it is of paramount requirement of justice that an accused
person must know precisely what he is charged with and where a statutory
provision creates more than one offence in a section, the proper and safe method
of preferring a charge under such a enactment is under separate counts. The
charge in this case made no sense in that by the use of the word “and” in its
particulars, it conjoined to methods of committing the offence under the
Traffic Act (Cap 403 Laws of Kenya) while the third method was disjoined in the
particulars by the use of the word “or” all the while charging the three method
under one count.
ln
contrast to the above line of cases, the court in Mwangi v Republic [1974] EA
dealt with a situation where the accused was charged with being in
possession of fire arms and ammunition in the same count. The Court found it
not be bad for duplicity because the two offences were so intimately
linked to each other that they could not be separated
Overloaded
Charges;
A
charge is said to be over1aded when multifarious counts are brought against an
accused person involving it different aspects of the Criminal Law as was stated
in the case of Kinyanjui v Republic. [2004] 2 KLR
The
test to be applied to determine whether a charge is overloaded is whether or
not the counts preferred against the accused person prejudice or embarrass him
in the presentation of the defense by their sheer numerosity.
A case on point is Ochieng’ vs Republic [High
Court Criminal Appeal No. 10 of 1985, where the accused was
charged with 44 counts of motley offences. He was acquitted of a few and
convicted of the rest. At the High court where he first appealed he was
acquitted of more counts and his conviction in respect of the rest affirmed. He
appealed again. The Court of Appeal held that it was undesirable to charge the
accused with so many offences on the same charge sheet, as it may occasion
prejudice or embarrassment It went on to state the there should be no more than
twelve counts on the same charge.
Where
a person is charged with too many counts on the same charge sheet, the
prosecution should elect the counts it prefers to deal with at a particular
trial. It may also exercise its discretion under section 87(a) of the Criminal Procedure Code and withdraw the extra
charges. The person is then discharged in respect of the withdrawn charges but
can be charged again at a later date.
Further, as the Court suggested in the case of Ganzi and 2 others vs.
Republic [6 ULR 161, that where a person faces a number of
capital charges in the same information it is preferable to proceed with one
only of the charges and leave the rest in abeyance even if the charges
appear inter—linked. When the prosecution decides to proceed with all the
charges simultaneously, and a person has been convicted of several capital
charges, it is a good practice to pass the sentence of death on one count only
and leave the sentences in other charges in abeyance. The reason for this,
obviously, is that a convict cannot suffer death more than once.
Defective
Charges
Every
objection to information by reason of a formal defect on the face thereof shall
be taken immediately after the information has been read over to the accused
person and not latter. Even then, once the rules of framing of charges
have been generally observed the charge or information should not be open to
objection in respect of its form or contents.
The general rule is that no objections are allowed in case of any defect in
form far as charges are concerned. ln fact, section 90(2) of the Criminal Procedure code states that the
validity of proceedings undertaken in pursuance of a complaint charge shall not
be affected either by a defect in the complaint or charge or by fact that a
summons or warrant was issued without a complaint or charge. A defect in a
charge does not lead to the quashing of an accused person’s conviction order
unless the defect has occasioned a failure of justice or has prejudiced the
accused.
It would appear, then, that as a general rule, objections to charges are more
likely than not to fail unless they are based on the ground that the formal
charge information as framed does not disclose an offence so that the
magistrate is invited not to admit the same under section 89(5) of the Criminal Procedure Code.
Amendment of Charges
Where,
at any stage of a trial before the close of the case for the prosecution, it
appears to the Court that the charge is defective, either in substance or in form, the Court may make
such order for the alteration of the charge, either by way of amendment of the
charge or by the substitution or addition of a new charge, as the Court thinks
necessary to meet the circumstances of the case.
Where a charge is so altered, the Court must call
upon the accused person to lead to plead to the altered charge. The accused has
a right to demand that any or all the witnesses who had already testified be
recalled and give their evidence afresh or be further cross—examined by him or
his advocate, and the prosecution has the right to re—examine such witness on
matters arising out of further cross—examination.
In
Mohammed
Bashir Republic [1950] 24 KLR, the
appellant was charged with attempted murder, disobedience of lawful orders,
threatening injury to a public servant and obstructing a Produce Inspector in
the course of his duty. All the charges were defective in that they contained
no particulars of the offences charged. The magistrate started the hearing but
at some point changed the murder charge to that of: assault. The fourth charge
was withdrawn. The accused was convicted of the three remaining charges but had
not been asked to plead to the charge of assault. The High Court declared the
trial a nullity.
TOPIC 5: PLEAS
1.1.Introduction.
A plea is a
formal statement made by or on behalf of a person charged with an offence in a
law court.
The basis of
plea taking in Kenya is section 77 of the constitution of Kenya, 1963 (now
under Article 50 of the Constitution); “every person who has been charged with
a criminal offence shall be presumed innocent until he is proved or has pleaded
guilty”.
According to
Section 77 (2) (b) of the repealed Constitution, “an accused person shall be informed as soon
as is reasonably practicable in a language that he understands and in detail,
of the nature of the offence with which he is charged”. Sub-section 2(c)
of section 77 states that, “every person charged with a criminal offence
shall be pertained to defend himself before the court in person or by a legal
representative of his choice”.
Nature of Pleas
Section 207 of
the Criminal Procedure Code provides that the substance of the
charge shall be stated to the accused and he shall be asked whether he admits
or denies the same. If the accused admits the charge, his admission shall
be recorded as nearly as possible in his own words and the court shall
convict him and record his conviction.
Section 207(3)
of the CPC; if the accused person does not admit the truth of the charge, the
court shall proceed to hear the case. If the accused person refuses to
plead, the court shall order a plea of “not guilty” to be entered for him.
Section 207(5)
CPC state that if the accused person pleads that he has been previously convicted
or acquitted on the same facts of the same offence; or that he has
obtained the President’s pardon for his offence, the court shall first try
whether the plea is true or not, and if the court holds that the evidence
adduced in support of the plea does not sustain it, or if it finds that the
plea is false, the accused shall be required to plead to the charge.
See(Koech vs. R) whereby it was
held that the admission of all facts in the charge is not necessarily a plea of
guilty.
If an accused
admits the assertions of fact but proffers an explanation, the accused’s
statement should be treated as a plea of “Not guilty” and then the prosecution
will be required to lead all their evidence.
Plea of guilty
This is a
formal admission in court as to the guilt by an accused person. It must be unequivocal
for it to be valid.
In R v.
Yonasni Egalin[1942] it was observed that, “Its desirable not only
that every constituent of the charge should be explained to the accused but
also that he should be required to admit orally every constituent of the
offence charged. If the accused is not represented care must be taken that he
fully understands the elements of the crime to which he is pleading guilty.”
section 281 of the
Criminal Procedure Code, if an accused person pleads guilty, the plea shall be
recorded and he may be convicted thereon.
Unequivocal Plea
A plea is said
to be unequivocal when it has been properly taken in accordance with the laid
down procedures of the law. It binds on
an accused person.
The principles
governing the taking of an unequivocal plea were set out in the case of Adan
vs.R (1973) EA 445 as follows;
1.
The accused person must be fit to
plead
The court is required to take steps to ensure that the
accused is fit to plead in that the accused is not deaf or mute
and if he is so the court should ensure that he is made to understand the
progress of the proceeding
In R vs. Bubu (1959), where an
accused is deaf or mute first of all the court should find whether the accused
can be made to understand substantially the whole of proceedings before
proceeding with the case
2.
The accused must plead directly not through an
advocate
It is regarded
both in English Common law and in Kenya that the accused must plead to the
charge himself.
In Manager Tank
Building Contractors vs. R. [1968] it was held that “it is only in
cases where the attendance of an accused is expressly dispensed with that an
advocate is entitled to plead for him. In all other cases only the accused can
plead to the charge brought against him.”
3.
The charge must be read and
explained to the accused
Section 207 (1)
of the Criminal Procedure Code requires that the substance of the
charge shall be stated to the accused person by the court and he shall be asked
whether he admits or denies the truth of the charge
In the High
Court it is required that the
information be read over to the accused by the registrar or other officer of
the court and to be explained if need be by the officer or interpreter before
the accused is asked to plead.
In Adan v. R
(1973) EA 445 it was held that the charge and all the essential
ingredients of the offence should be explained to the accused in a language
he understands.
4.
The charge or information must not
be defective
The charge
sheet must be properly drawn as to disclose the offence charged. A purported
plea of guilt to a defective charge is not a plea at all and a conviction on
such a plea shall be quashed. See Sections 134 – 137 Criminal Procedure Code.
5.
The facts must also be read to the
accused
The prosecutor
is required to read the facts of the case before asking the accused to plead.
It is not enough that the facts are stated in the charge sheet. This helps to
guard against causing the accused to plead guilty to wrong facts.
The accused
must admit to both the charge and the facts read to him before he can be
said to have pleaded guilty. Such admitted facts must disclose and or reveal
the offence charged. He must admit all ingredients of the offence
charged both the actus reus and the mens rea.
6.
The plea of the accused must be properly
recorded
All an accused
person says in answer must be recorded as clearly as possible and such record
must show the language used and whether or not there was any interpretation
from one language to another and if so the name of the interpreter.
The plea must
be taken by a competent judicial officer not just a court clerk.
In cases where
the accused disputes the facts of the charge, a plea of not guilty must be
entered.
Where there is
more than one accused jointly charged, the plea of each shall be recorded
separately, and if a charge or indictment contains several counts, the accused
must be asked to plead to them separately.
Plea of not guilty
In a plea of
not guilty the accused person controverts the existence of every fact essential
to constitute the given charge and thereby puts in issue every essential
element of the offence charged.
Section 208 of
the Criminal Procedure Code; if the accused person pleads not guilty, the
court shall proceed to hear the complainant, witnesses and other evidence if
any.
A plea to the jurisdiction of the
court
Each court has
its jurisdiction set out either by the constitution or the statutes. Section 77(1) of the Constitution, 1963;
unless a charge is withdrawn, the case shall be afforded a fair hearing within
a reasonable time by an independent and impartial court established by law.
A court that
has no jurisdiction to try the case cannot take the plea of an accused and
cannot therefore be arraigned by such a court.
See R v.Ambari Juma (1959)
An accused is
at liberty to plead that the court has no jurisdiction to try him.
Change of Plea
The accused may
change the plea of not guilty to that
of guilty in the course of a
trial.
It may also be
changed after the conviction but before
sentence.
In Mwakera v.R(1982-88) I KAR 1043, the appellant had been allowed to
change her plea of guilty to one of not guilty after conviction but before
sentence. The court held that a plea of guilty may be changed on reasons to be
recorded after conviction but before sentence.
In Kamundi
v. R (1973) EA 540, the court held that, there are no provisions regarding
change of plea, there are equally no provisions to prevent a change of plea
before the court becomes “functus officio”.
Therefore, when
a court has determined a case by passing a sentence it is functus officio
and has no power to re-open the case either of its own motion or on an
application of the prosecution or defence.
Plea bargaining
Plea bargaining
is simply an agreement between the
defendant (with advice of his advocate) and the prosecution, that in exchange
for a plea of guilty he will receive favourable consideration by the court. i.e. being charged with a less serious crime
resulting to a lighter sentence.
It helps the
criminal justice system to clear and decide cases faster, thus avoids
overcrowded court docks and backlog of cases and saves time on prolonged
litigation.
On the other
hand, the defendant even though innocent may plea guilty
for fear of harsh sentence. Also, the judicial system may be viewed as soft on
hardened criminals who plead guilty for lesser offences in order to evade
rigorous punishment.
Plea bargaining
is not practised in the Kenyan Legal System.
TOPIC 6: CRIMINAL COURTS AND RELATED INSTITUTIONS
Introduction
A person suspected of having committed
a crime is tried in the courts which have been established under the
Constitution or other legislations. It is the mandate of the courts to take an
accused person through the criminal trial and to determine whether or not the
accused is guilty of the offence charged. An accused person is usually charged
in the lowest court having jurisdiction to try the offence.
The judiciary consists of the judges of
the superior courts, magistrates, other judicial officers and staff. The
judiciary is viewed as the third arm of the government established for purposes
of interpreting laws and adjudicating over and resolving disputes between
citizens and between citizens and the state.
In the exercise of judicial authority,
the judiciary is subject only to the Constitution and the law and not subject
to the control or direction of any person or authority. In Kenya, courts are
established in a hierarchical fashion beginning with Supreme Court at the apex
going all the way down to the subordinate courts presided over by District
Magistrates with each court exercising such powers and possessing such
competences collectively referred to as jurisdiction as donated by various
statutory provisions. Generally speaking, the powers and competencies in both
in terms of the territory and subject matter expand the higher a court sits in
the hierarchy or pecking order.
HIERACHY OF
COURTS IN KENYA
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COURT OF APPEAL
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HIGH COURT
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CHIEF MAGISTRATES COURT
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SENIOR PRINCIPAL MAGISTRATES
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PRINCIPAL MAGISTARTES COURT
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SENIOR RESIDENT MAGISTRATES
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RESIDENT MAGISTRATE’S COURT
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DISTRICT MAGISTRATE’S COURT
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Courts can only exercise such powers as
are expressly given to them by law. Any purported arrogation of powers to
itself that a court does not possess is an unlawful usurpation that is of no
legal effect and amounts to a nullity. It matters not high in authority in the
hierarchy a court lies or how willing the parties before it may be to submit to
such pretended jurisdiction, it is all null.
The 2010 Constitution sets out the
judiciary and the current court structure. The Constitution categorises the
courts into superiors and subordinate courts.
SUPERIOR
COURTS
Under Article 162 (1) of the
Constitution, the superior courts are the following;
(a)
The Supreme Court;
(b)
The Court of Appeal;
(c)
The High Court;
(d)
A court having the status of the High
Court and established to deal with disputes relating to employment and labour
relations.
(e)
A court having the status of the High
Court and established to deal with dispute relating to the environment and the
use and occupation of and title to land;
Subordinate
courts
Article 162 (4) of the Constitution provides that subordinate courts are
the courts established under article 169
or by Parliament in accordance with that Article. Under article 169 of the constitution,
the following courts are set out as subordinate courts;
(a)
The Magistrates Courts;
(b)
The Kadhis Courts;
(c)
The Courts Martial and
(d)
Any other court or local tribunal as may be established.
Parliament is mandated to enact
legislation conferring jurisdiction, functions and power on these subordinate
courts.
The superior
courts
1.
The Supreme Court
As noted above the Constitution under Article 162 (1) establishes the
superior courts as the Supreme Court, the Court of Appeal and the High Court.
Thus we first have the Supreme Court which is established under Article 163. It comprises of the Chief
Justice who shall be the president of the Court, The Deputy Chief Justice who
shall deputise for the Chief Justice and be the Vice President of the Court and
Five other Judges. The court is properly
constituted if its composed of five judges which means that the Supreme Court
when determining a matter that is before it is expected to have a bench of five
judges. The Supreme Court has exclusive
original jurisdiction to hear and determine disputes relating to the elections
to the office of the President arising under article 140 (that is arising
out of the presidential election).
The hearing of presidential election
petitions appears to be the only original jurisdiction that the Supreme Court
has. Discuss the Cord petition. The
Supreme Court also has appellate jurisdiction and thus can only hear and
determine appeals from the Court of Appeal and any other court or tribunal as
may be prescribed by national legislation. Appeals shall lie from the Court of
Appeal to the Supreme Court as of right in any case involving interpretation or
application of the Constitution and in any other case in which the Supreme
Court or the court of Appeal certifies that a matter of general public
importance is involved.
The Supreme Court is also mandated to
give advisory opinions with reset to
matters touching on the County government.
The decisions of the Supreme Court shall bind all other courts. This
entrenches in the Constitution the doctrine of stare decisis. This is significant since trial courts will have to
follow the determinations of the Supreme Court on critical matters touching on
criminal procedure.
2.
The Court of Appeal
The Court of Appeal is established
under Article 164. The Constitution
provides that it shall have no fewer than 12 judges. The jurisdiction of the
Court of Appeal is to hear appeals from the High Court and any other court or
tribunal as prescribed by an Act of Parliament namely the Appellate
Jurisdiction Act Cap 9 Laws of Kenya. The Court of Appeal does not have
original jurisdiction to hear and determine matters. It only hears appeals.
Thus where one is dissatisfied with a matter arising out of a criminal trial
from the High Court, or from the decision of the High Court while in exercise
of its appellate jurisdiction, he ahs recourse to appeal to the Court of
Appeal. The threshold of a “question of general public importance” which
is required for an appeal to be referred to the Supreme Court is not present.
Unless expressly exclude by statue one will have a right to appeal to the Court
of Appeal if aggrieved by a decision of the High Court in either its original
or appellate jurisdiction.
On any appeal, the Court of Appeal has
power, as far as its jurisdiction permits to confirm, reverse or vary the
decision of the superior court with such directions as may be appropriate to
order a new trial and to make any necessary incidental or consequential orders
including orders as to costs.
In the case of Onyango Vs Republic [1983] e KLR (Criminal Appeal No. 91 of 1983,
it was held that the jurisdiction of the Court of Appeal is derived from
Statute and the Court has no inherent jurisdiction. In the absence of any
statutory provision conferring a right of appeal, such right could only be
inferred from the repeal of a provision to the effect that no appeal shall lie
from the High Court. The Court of Appeal refused to entertain a second appeal
from the decision of a court martial since there was no statutory provision
providing for the same.
It is worth noting that whereas the
Court of Appeal’s jurisdiction is in the main appellate, it does have original
jurisdiction limited to the hearing and granting of applications for
injunctions, stay of executions and other preservatory orders under rule 5 (2)
(b) pending the hearing of appeals. The Court may thus order the suspension of
a sentence passed by the Superior Court or a subordinate court pending the
hearing of appeals to it.
3.
The High Court
The High Court is established under
Article 165 of the Constitution as a superior court of record, versed with
unlimited original jurisdiction in all civil and criminal matters in addition
to all others powers as may ne conferred on it by the Constitution and any
other laws. The Court of Appeal has in the Delamere
case - Thomas Patrick Gilbert Cholmondley Vs Republic [2008] e KLR, expressed
its understanding of the High Court’s unlimited original jurisdiction in the
following terms:
The High Court on the other hand can hear all matters
without regards to territory or the subject matter in dispute. In criminal
matters, it has jurisdiction to try the pettiest of offenders to the murderer.
Likewise, in civil matters it has the jurisdiction to try a claim for the
meanest amount without regards to the origin of the claim. Of course it does
not normally do so; it would be overwhelmed by the sheer volume of work, but it
has the jurisdiction to do so. This is our understanding of the phrase….unlimited original jurisdiction in civil
and criminal matters.
The presiding officers at the High
Court are judges as prescribed by an Act of Parliament which also makes
provisions for the manner in which the High Court shall be organised and
administered. In addition, there also exists the Principal Judge of the High
Court, who is elected by the judges of the High Court from among themselves.
(i)
Enforcement Jurisdiction
Still on the Constitution, the High
Court is possessed of a related but distinct jurisdiction namely the
enforcement jurisdiction. This is donated in Article 165(3)(b) of the Constitution which provides that it shall
have jurisdiction to determine the question whether a right or fundamental
freedom in the Bill of Rights has been denied, violated, infringed or
threatened. Such jurisdiction may be invoked by the subject citizen or by
another person or association acting on his behalf.
The new Constitution mandates the Chief
Justice to make rules to simplify access justice under this jurisdiction.
(ii)
Appellate Jurisdiction
The High Court has appellate
jurisdiction but its not unlimited. It exists only where provided by statute.
Thus a person convicted on a trial held by a subordinate Court of the first or
second class may appeal to the High Court. The appeal may be on a matter of
fact or law. Section 347 of CPC. No appeal is allowed in the case of an
accused person who has pleaded guilty and has been convicted on that plea by a
subordinate Court, except to the extent or legality of the sentence. Section 348 of CPC.
The state through the Director of
Public Prosecutions (formerly the Attorney General) has a right of appeal to
the High Court against the acquittal of an accused person by a subordinate
court as well as an order by such court refusing to admit a complaint or formal
charge or dismissing a charge on a matter of law.
A new appellate jurisdiction is
conferred upon the Hugh Court for the hearing of appeals from a decision of any
tribunal appointed under the Constitution to consider the removal of a person
from office. This however does not extend to an appeal from the decision of a
tribunal appointed into the President’s physical or mental capacity to perform
the functions of office under Article
144.
(iii)
Interpretative Jurisdiction
The High Court has interpretive
jurisdiction to hear any questing respecting the interpretation of the
Constitution. See article 165 (3) (d). It
is not any and every question or any
and every allegation of constitutional interpretation that qualifies for
reference to the High Court. Neither for that matter has the mere mention of
the constitution led to an automatic referral of the matter to the High Court.
A question of constitutional interpretation was explained by Justice Apaloo as
follows in the case of Odhiambo Vs
Republic [Civil Appeal No. 54 of 1989]
My own conception of a constitutional issue when it relates
to the interpretation of a provision of the constitution is that there are
posed to the Court, two or more conflicting interpretations of the Constitution
and the constitutional court is asked to pronounce on which one is the correct
one.
Where a question arises as to the
interpretation of the Constitution in proceedings in a subordinate court and
that court is of the opinion that the question involves a substantial question
of law, that court may suo muto and must if a party to the
proceedings so requests refer the question to the High Court. The High Court
will then, in exercise of its
interpretative jurisdiction deal with and determine that question in accordance
with the Rules and render its decision on the question that has been referred
to it in a accordance with which the subordinate court will then dispose of the
case before it.
(iv)
Supervisory Jurisdiction
The High Court ahs supervisory
jurisdiction over the subordinate courts and over any person, body or authority
exercising judicial or quasi-judicial functions. The Constitution expressly
excludes superior courts as it would be untenable for it to purport to
supervise judicial bodies of concurrent or superior jurisdiction.
SUBORDINATE COURTS
The Constitution under Article 169 (1)
provides for the subordinate courts. The article states that the subordinate
courts are-
(a)
The Magistrates courts;
(b)
The Kadhis courts;
(c)
The Courts Martial; and
(d)
Any other court or local tribunal as may be established by
an Act of Parliament, other than the courts established as required by Article
162(2).
1.
Kadhis courts
Under Article 162(5) the jurisdiction of a Kadhis court shall be limited
to the determination of questions of Muslim law relating to personal status,
marriage, divorce or inheritance in proceedings in which all the parries
profess the Muslim religion and submit to the jurisdiction of the Kadhis court.
The Kadhis court therefore does not have jurisdiction to try criminal matters
and cannot prosecute suspected offenders.
2.
Magistrates Courts
The Magistrates Court Act Cap 10
establishes the Magistrates courts and sets out their jurisdiction. The
following interpretations are important in understanding what constitutes the
Magistrates Courts and who a Magistrate is in Kenyan Law. These definitions are
in Section 3 of the Magistrates Court Act which is the interpretive section of
the statute;
“magistrate” means a chief magistrate, a senior
principal magistrate, a principal magistrate, senior resident magistrate, a
resident magistrate or district magistrate.
“magistrate’s court” means the Resident Magistrate’s Court
or a district magistrate’s court;
By virtue of Section 3(2) of the Act
the Resident Magistrate’s Court shall have jurisdiction throughout Kenya.
The criminal jurisdiction of the RMs
court is set out in section 4 which provides that:
The Resident
Magistrate’s Court shall have and
exercise such jurisdiction and powers in proceedings of a criminal nature as are for the time
being conferred on it by—
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(a)
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the
Criminal Procedure Code or
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any other
written law.
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Appellate jurisdiction
Under section 10, Resident Magistrates
Court do have appellate jurisdiction in criminal matters from the judgements of
Magistrate court of third class.
The jurisdiction of Magistrates in Criminal cases
The magistrate courts unlike the High
Court do not have unlimited jurisdiction and therefore cannot hear all cases.
They have limits as to the nature of cases that they can hear and the level of
sentence that they can mete out depending on their rank.
Not all magistrates have the same power
when it comes to sentencing. The extent to which a magistrate can sentence a
person depends on the rank of the Magistrate. These are set out under section 7 of the CPC.
Inquisitorial powers
Magistrates courts are also authorised
to hold inquests. This power is contained in Section 385 of the CPC. It provides that a magistrate empowered to
hold a subordinate court of the first, or second class and a magistrate
specially empowered in that behalf by the Chief Justice shall be empowered to
hold inquests. Thus a Magistrate of the Third class cannot hold inquests, the
power to hold inquests is only vested in the Magistrates court and the High
Court since they are presided over by judges not magistrates have no power to
hold an inquest.
In
Re Muge [1991] KLR 51, the then
Attorney General purported to order the Chief Justice to appoint a Judge to
conduct an inquest into the death of Bishop Alexander Muge who was killed in a
road traffic accident. At the same time Mr. Onkoba was charged with the offence
of causing death by dangerous driving arising out of the same accident that
killed Bishop Muge. The widow of the deceased applied for an Order of
Prohibition to stop the Magistrate from proceeding with the traffic case as
there had been intimation that an inquest would be held. It was the position of
the applicant that it would be futile to hold an inquest if the traffic case
proceeded to conclusion as the whole purpose of the intended inquest would be
defeated at the trial. In the first instance, the High Court dismissed the
application on a technicality of the supporting affidavit which it considered
to be defective. The applicant appealed and in the court of appeal the decision
turned on whether or not the purported directive to the Chief Justice had any
basis in law. If not then the purported inquest could not be held, and thus the
applicant could not be said to have suffered any injury. The Court of Appeal
held that the direction by the Attorney General had no basis in law as it was
not sanctioned by any constitutional or statutory provision. In other words,
the AG could not direct that a Judge of the High Court be appointed to hold an
inquest. This is the mandate of the Magistrates’ court by dint of the
provisions of Section 385 of the CPC.
3. Children’s Court
The Children’s Courts are staffed by
Magistrates who are specifically appointed by the Chief Justice to preside over
cases involving children in any part of the country. Such Magistrates
constitute the Children’s court when so sitting to hear cases involving
children. When not sitting in the Children’s courts they are Magistrates like
no other. These Children’s courts are no more than special Magistrates courts.
The jurisdiction of a Children’s court
inter-alia includes hearing of any charge against a child, other than a charge
of murder or a child in which the child is charged together with a person or
persons above the age of eighteen years. They also hear charges against any
person accused of an offence under the Children Act.
Offence of murder where a child is
suspect are heard by the High Court which is the only court empowered to try
this offence. In instances where the child is a co-accused alongside an adult
or adults the trial will proceed in the ordinary magistrate’s courts.
Children’s courts are supposed to sit
in a different building or room or at different times from the ordinary courts.
Any sentence prescribed for the
particular offence can be passed by the Magistrate mandated to hear matters
covered by the Children’s court irrespective of any limitations that may be
prescribed by the CPC as to the particular sentence that the particular
magistrate may pass.
4. Court Martial
The Courts martial is established under
the Armed Forces Act Cap 99. Its purpose is to try offences under the Armed
Forces Act. Under Section 86 of the Act, the court martial consist of a
presiding officer and not less than to other members.
Appeals from the Court martial are
heard by the High Court and their decision is final and not subject to further
appeal.
The court martial is therefore for all
intents and purposes a subordinate court and the High Court therefore possesses
powers of supervision over the court martial including the power of judicial
review.
TOPIC 7: THE NATURE OF CRIMINAL PROCEEDINGS
Introduction
Criminal procedure and practice is a
branch of law that concerns itself with the various stages and means by which
persons who are alleged to have contravened the criminal law are dealt with or
processed.
It is a branch of law that is concerned
with the process as opposed to the substance of Criminal law. It defines the
procedures and rules that govern the judicial aspect of the prevention,
detection and punishment of crime, depending on the crime the procedure may be
simple and short and elaborate, delicate and long.
The criminal process embodies a
triangulation of interest, on the one hand is the interest of the society,
through the instrument of the state to punish crime and on the other hand the
offender-to ensure the rights of inherent to the dignity of the offender are
respected. It is how the procedural law strikes this balance that is efficacy
is judged.
Recent years have also seen the
widening of concerns of the criminal process to include focus of victims of
crime. Refer to the 2003 Introduction of
a part in the criminal procedure code dealing with victim impact statements –
part IX A of the CPC
Players in
Criminal Proceedings
1.
The State and the Accused
The two are the main players/parties to
a criminal trial. – state and accused, normally represented as Republic Vs X. This indicates the
public nature of criminal proceedings even though the individual citizens are
in most cases the injured party. It is the state that initiates proceedings on
behalf of the public.
2.
Complainant
The term complainant occupies an
important place in the criminal trial process but has also been one subject to
controversy. So much so that an attempt to define it in Section 2 of the
Criminal Procedure Code as a person who lodges a complaint with the
police or any other lawful authority ended up having an extremely brief
statutory life in that it was subsequently deleted by Act No. 7 of 2007. Under
the Criminal Law (Amendment Act) No. 5 of 2003 a complainant is a person who
lodges a complaint with the police or any other lawful authority.
It is of interest though that section 2
of the Criminal Procedure Code retails the definition of complaint as “ an
allegation that some person known or unknown has committed as an “ allegation
that some person known or unknown has committed or is guilty of an offence”. It
may therefore be said that even though a complainant is one who is directly,
immediately and personally affected by the criminal acts of the accused and
therefore makes a complaint, the state by virtue of having an interests in the
protection of the rights of all its citizens may itself be seen as a
complainant, with the right not only to complain but also to prosecute.
Another reason why the state is a
complaint is because it is the state that legislates what constitutes a crime.
Any breach thereof directly harms the state. It would therefore follow that it
has the right to complain and prosecute. The view of the state as a complainant
in all criminal cases has recently found the most authoritative endorsement by
a Constitutional bench of the High Court in the case of William Ruto and Others Vs Attorney General. (High Court
Miscellaneous Application No. 1192 of 2005 delivered on 15th October
2005).
So critical is the role and place of a
complainant that where an accused person appears in a particular court at an
appointed time for the trial but the complainant himself having knowledge of
the proceedings fails to appear, the court is empowered to acquit the accused
person unless it deems it fit to adjourn the case until some other date. See Section 202 of the CPC.
It is an interesting question to
consider whether the presence of the prosecutor as the representative of the
state, the nominal complainant suffices to save a case from the inevitable
acquittal due to the personal complainant’s absence. It has been held that in
some cases in Republic Vs Mwaura (1979)
KLR 209 that a complainant includes a public prosecutor.
The complainant may also withdraw his
complaint at any time before judgement is passed if he can satisfy the Court
for permitting him to withdraw it. The accused is the acquitted. See Section 204 of the CPC. Even through
the statute does not say so a personal complainant cannot make such a
withdrawal without the concurrence of the State in the person of the
prosecutor.
Where the State and the complainant are
agreed, though it would not be proper for the Court to make it unduly difficult
for a withdrawal. In the case of Shen
Zhangua Vs Republic ( 2006 eKLR, the
trial court had declined to allow an application by the complainant to withdraw
his case on grounds that he did not give sufficient reasons to the Court for
his application. Lesiit., J on appeal held that the subordinate court ought
instead to have clarified the grounds given by the complainant which were in
fact sufficient and proceeded to allow the withdrawal.
In Medardo V
Republic ( 2004) 2 KLR 433, the Court held that under section 204 of the Criminal
Procedure Code, if at any time before the final order is passed in a case a
complainant satisfies the Court that there are sufficient grounds for
permitting him to withdraw his complaint, the Court may permit him to withdraw
it and shall thereupon acquit the accused, The court retains the discretion to
allow the application for withdrawal but once it has exercised that discretion
and allowed the withdrawal it is bound to acquit the accused person.
If the complainant id a child of tender
years, the court is expected to test the intelligence of the child through a voir
dire examination before deciding whether or not to subject him to oath.
Apart from his role in the making of a
complaint, which he may in a proper case withdrawal and his critical role at
the beginning of the trial which is foundational to the prosecution’s case, the
complainant holds the key to any effort at reconciliation that may lead to an
amicable settlement of the case facing an accused person. This has been an
appropriate case involving common assaults or any other offences of a personal
or private nature not amounting to felony and not aggravated in degree. See Section 176 of the CPC.
The complainant also play a role in
helping the court determine what sentence to impose in cases where the offence
results in the death or actual physical bodily harm to any person through the
process of the victim impact statements since the complainant would necessarily
be either the primary or family victim by way of victim impact statements. See section 329 A of the CPC.
The complainant does not have the right
to address the court or the High Court stated n Republic Vs Cap Van International Limited (2003) KLR (Revision
Cause 6 of 04) the complainant in a criminal case can only communicate with the
prosecutor..
3.
Prosecutor
The prosecutor in a criminal trial is
the person who appears and pleads or presents the case of the state against the
accused person; whether at trial or appeal. Historically, public prosecutors
were subject to the express directions of the Attorney General whether general
or specific and fell under three broad categories;
(i)
Those exercising the Attorney General delegated authority as
officers at the State Law Office namely the Director of Public Prosecutions,
Solicitor General and State Counsel of various ranks;
(ii)
Gazetted Public Prosecutors appointed by the Attorney
General either for Kenya generally or for any specified area. The Gazette
notice spells out both the geographical and subject matter (case type)
competence or authority of the said prosecutors and;
(iii)
Non-Gazetted public prosecutors who are appointed by the
Attorney General in writing from among advocates of the High Court.
The exclusive panoply of prosecutorial
powers, including those of appointment of public prosecutors, previously
donated by the Attorney General have now been rationalized and in some respects
curtailed and transferred o an independent and constitutionally protected
Director of Public Prosecutions under article 158 of the New Constitution.
4.
The Police
The police perform investigative
functions to ensure, ideally that the case brought against the accused is
substantial, weighty and supported by the evidence.
The investigative powers of the police
are spelt out in the Police Act and Force Standing Orders made there under.
Even though the Constitution 2010 omits the prevention, investigation and
detection of crime among the objects and functions of the National Police
Service under Article 244, these are clearly implied or presumed under Article
245 (4). The Director of Public has power under Article 157 (4) to direct the
Inspector General of the National Police Service to investigate any information
or allegation of criminal conduct and the latter is obliged to comply with any
such direction which must be in writing.
The provision seems to suggest that
only the police and not the DPP can be involved in investigations. The issue
came up in R Vs Pattni (2005) 1 KLR 310.
5.
Witnesses
A witness is a person who as a result
of having been present, observed, experienced or dealt with an event is able to
give an account of it in a court of law.
Since the criminal trial is
adjudicative in nature and aimed at establishing the truth or otherwise of
allegations made against an accused person, witnesses play a central role. It is
their testimony as to the facts in dispute as well as their production of
documentary or physical evidence or opinions (in the case of experts) that aid
the court in arriving at a just decision of the case
6.
Judge or Magistrate
He is the presiding officer of the
Court and represents the authority and integrity of the judicial adjudicative
process. His role is in the main, passive as an impartial umpire in an
adversarial legal system. It is his/her
duty o unscrupulously apply the procedural law as well as the rules of
evidence to ensure that the criminal process is not used to oppress .
TOPIC 8: THE TRIAL PROCESS
A criminal
trial commences when on the hearing date an accused person is called upon to
take his place in the dock.
The charge is
then read to the accused and his plea taken. As a preliminary process the
prosecutor is expected to inform the court of the number of witnesses they
intend to call and to indicate their readiness to proceed.
If the
prosecution is ready to proceed the accused has a right to be defended by an
advocate of his choice, the court should ensure that the advocate is present.
Section 194 of the CPC
provides that the accused must be present personally or where his presence has
been dispensed of represented by his advocate if any throughout the trial.
— After the plea
is read and taken, the trial then starts by the prosecution tendering its
evidence.
— Section 197 of the CPC
makes provision for the manner of recording evidence before magistrates.
The evidence of
each witness taken down in writing or typewriter in the language of the court
by magistrates or in his presence and hearing and under his personal direction
and superintendence and shall be signed by the magistrate and shall form part
of the record.
Prosecution Case
The prosecution
should lay out its case in a logical sequence and ordinarily the
first witness should be the direct victim of crime if any. The exception to this rule is where one has
expert witnesses, and where there are expert witnesses, they should take
precedence over other witnesses.
Section 151 of the CPC
provides that every witness in a criminal matter shall be examined upon oath
administered by the court.
Cross-examination
The prosecutor
file has all the witness statements and as they lead them they do so based on
the statements that the witnesses have written down.
The witness
shall then be cross-examined by the defence.
Cross-examination
is basically to raise doubt on the case of the prosecution.
One is trying
to build the basis for their defence during cross examination. More in Trial
Advocacy (3rd yr)
Re -examination
After
cross-examination there is re-examination which is done by the prosecution to
clarify issues that will have arisen in the course of cross-examination. In re-examination, it is important to stick
to the relevant things that were raised during cross-examination.
The court also
has powers to cross examine witnesses.
For the court to do this, there must be issues where the court is
seeking clarification which have not been brought up by the prosecution or
defence
Cross-examination
by the Court
Where the
accused is not represented, this helps the courts to be proactive. The accused who is not represented may not
know how to cross-examine a witness and the court can do that to clarify
issues.
Once cross
examination and re-examination have been finalized the court must sign the
proceedings, so that at the end of every witness’ evidence the court must sign
and put in the designation and date of that part of the proceedings.
This way the
witnesses are called until they have all given evidence and then the
prosecution can indicate to the court that they are done
Close of
prosecution case
Section 211 of
CPC This happens upon
hearing the evidence in support of the charge and such submission or argument
as may be put forward by the prosecutor and defence respectively.
After which the
court shall consider whether or not a prima facie case has been established
If it appears
to the court that a case is made out against the accused person sufficiently
the court requires him to make a defence, no reason is required.
Prima facie
case
The court
defined a prima facie case in Bhatt v Republic as
one where a reasonable court directing its mind to the law and evidence would
convict if not explanation were offered by the defence.
Where the court
is of the opinion that the prosecution has failed to establish a prima face case; then a
detailed reasoned ruling will be written leading to an acquittal under Section
210 of the CPC and the accused
shall be set at liberty accordingly.
Once a ruling that a prima facie
case has been established;
Once a ruling
that a prima facie case has been established; S 211 of the CPC provides;
a)
That
the court shall again explain the substance of the charge to the accused, to
prepare the accused person or to remind him of the charge.
b)
It shall inform him that he has a
right to give evidence on oath from the witness box, in which case he shall be
liable for cross examination.
c)
Or that he can make an un-sworn
statement in which case he shall not be liable to cross-examination.
The accused shall be informed of his right to remain silent, an option
that the accused may elect. (see section 306 (3)
Whichever option the accused person chooses, he shall
be informed of his right to call witnesses.
Section 211(2) enables the court to compel attendance of witnesses on
behalf of the accused where there is need and to grant adjournment to enable
such witnesses to attend court.
The accused may also apply for production of documents or thing that he
considers necessary for defence.
The court can reject such applications where it considers it to be
vexatious or that it is intended to delay or defeat the cause of justices in
which case the reasons for refusal should be recorded.
DEFENCE CASE
The accused shall commence his defence by calling his
witnesses referred to as Defence Witnesses (DW).
The practice is for the accused where he has elected
to give evidence whether sworn or unsworn to go
first.
This procedure ensures that the accused person who
must be present through out the trial does not have the advantage of listening
to his witnesses and thereby probably tailoring his own evidence to corroborate
such witness statements
The accused shall then call witnesses who shall be
sworn/affirmed and shall give their evidence in chief, be cross examined by the
prosecutor and re-examined by the defence and finally they may be examined by
the court.
After calling all the witnesses the defence shall
signify to the court the close of their case.
Both the defence and the prosecution may then address
the court in an argument to support each side’s position. (Closing
statements)
At close of Defense case
After the close
of the defence case the accused or his advocate have the right to address the
court; with the prosecutor having an automatic right of reply where the accused
has adduced evidence (calling witnesses other than himself)
After listening to the arguments from both sides the
court will proceed to write the judgment.
At the ruling stage the ruling can amount to an acquittal in the same
way that a judgment can amount to an account where the court has established
there is no prima facie case.
ISSUES ARISING IN THE CAUSE OF TRIAL
Non attendance by complainant. Section 202 of
the CPC provides that where the accused is present before the court but the
complainant having had notice of time and place of hearing fails to attend
trial, the court acquits the accused unless for some reason it thinks it proper
to adjourn the case to another date.
ISSUES DURING TRIAL
Withdrawal of Complaint. Under Section
204, at any time before a final order is passed the complainant can withdraw
his complaint on satisfying the court that there are sufficient grounds.
Where the court is so persuaded then the accused shall
be acquitted accordingly.
There are however instances when the court can decide
not to allow such an application where it feels the victim of crime may have
been coerced into withdrawing the claim or where for public good it would not
be right to allow withdrawal.
Adjournment. Section 205
allows for the court to exercise its discretion to allow for adjournment during
trial.
The duration which people have to spend in remand
before they can be tried is a good indication of whether there is too much
delay and the court has a problem with backlog.
Courts can only
manage the case they have by giving people cases that they can proceed with.
Adjournment should therefore only be allowed where there is sufficient ground.
Non appearance by both parties after
adjournment. Section 206 provides that where an accused charged
with an offence other than a felony does not appear after adjournment the court
may proceed in his absence to convict and sentence.
Where the court subsequently is satisfied that
non-attendance was due to reasons beyond the control of the accused the
sentence may be set aside.
Where it is the complainant who fails to turn up then
charge may be dismissed with or without costs.
Witnesses.
Who may be called as a witness?
All persons may be called as witnesses in criminal
cases except;
1.
Children of such tender years that
they have no sufficient intelligence to give evidence.
2.
Insane persons.
3.
Persons whose understanding is
affecting by temporary causes such as illness or drunkenness.
Deaf and dumb witnesses if they are unable by writing
or signing or otherwise to communicate.
If they can communicate by writing or any other way, then they can
testify.
The accused, and the husband or wife of the accused’s
spouses cannot give evidence against each other unless the offence is in
relation to the spouse i.e. if the wife has battered the husband then the
husband can testify.
Children – any child may be sworn as a witness
provided that it appears to posses sufficient intelligence to understand the
nature and obligations of the oath. Competency is based on understanding not
age.
The child may give un-sworn statement if the courts is
of the opinion that they can understand the nature of proceedings even if they
do not understand the nature of the oath.
Place of trial
Section 77 makes provision that the place at which a
criminal case shall be held for the purposes of trying an offence shall be
deemed to be an open court to which the public generally may have access so far
as it can conveniently contain them.
However, the court is enabled to order at any stage of
the trial that the public generally or any particular person shall not have
access to or remain in the room or building used by the court.
Exclusion of the public is justified where the
administration of justice would be rendered impracticable by the presence of
the public either because;
The case could not be effectively be tried because of
possible violence to witnesses or to other persons taking part in the trial or because the
parties entitled to justice would reasonably be deterred by publicity from
seeking justice at the hands of the court
A hearing in camera may also be justified where the
hearing involves a secret process, or where the security of the state and the
public generally would be compromised by a public hearing.
The burden is upon the party seeking to oust the
ordinary procedure to show that the haring in camera is necessary, proof can be
by way of affidavit.
Section
77(2) of the CPC makes it mandatory for all trials relating to sexual
offences and those found to be insane to be held in camera and further
makes it an offence to publish by whatever means the particulars which may lead
to the identification of the victims or the pictures of the victim
Further contravention of this is punishable by a fine
not exceeding KShs 100,000 in the case of an individual and KShs 500,000 for a
corporate offender.
TOPIC 9: THE DICHOTOMY OF THE INQUISITORIAL AND
ADVERSARIAL SYSTEMS
Introduction
In most countries the administration of
criminal justice follows one of two different models. These are the adversarial
or accusatorial model and the inquisitorial model. The adversarial model is
associated with Anglo – American countries covering the entire common law
world. On the other hand the inquisitorial system is associated with
continental Europe covering the so called civil law countries.
The main differences between the two
systems are hinged upon the differences in the roles of both the judicial
authority and the parties. The role the judicial authority plays in an
adversarial system is different from the role the authority in an inquisitorial
system. Similarly, the roles the parties lay differ in each one of the two
systems
Professor Morris Moscoe emphasizes the
difference in the following manner;
The divergence in character between
European and Anglo-American procedure springs chiefly from the difference in
the conception and use of judicial authority. Criminal procedure in Anglo
America like civil procedure is contentious. The responsibility for gathering
and presenting evidence rests upon the prosecutor and accused, the parties to
the case. When a judge intervenes in the preliminary stages, it is to
decide a specific question, whether the accused should be
admitted to bail and if so what amount, whether a search warrant or a warrant
of arrest should be issued and so forth. The judge decides not on evidence he
has gathered but on evidence submitted to him. He obtains the substratum from
open court from the parties. Anglo American judges do not themselves make
investigations into criminal cases independent of both prosecution and defense,
nor do they usually delegate other agents to do so. At the trial, the Anglo
–American judge is limited to directing proceedings ruling on points of law
such as the admissibility of evidence and if sitting without jury to making the
final decision on the facts.
In Europe, on the other hand, a
criminal proceeding is a judicial inquiry. It is the duty of the judge to
ferret out the facts. They do not wait for the truth to emerge from the
contentions of the opposing parties the trial is dominated by the presiding judge
who himself questions the witnesses and the accused and brings out the evidence
for the prosecution ad for the defense.
Adversarial
It is emphasized that this difference
in the functions of judges arises from different theories concerning the best
means of separating the guilty from the innocent. In Anglo-American countries,
the provision of an impartial tribunal before which both sides may lay their
facts is the chief means for accomplishing this purpose.
Inquisitorial
In Europe, it is felt that what happens
in the trial is so vitally affected by the preparation of the case in the
preliminary stage that the active intervention of a judicial officer is vital
it is further reasoned that the prosecutors tend to collect evidence indicative
of guilt and to neglect facts favourable to the accused. Unless the accused is
represented by counsel of equal ability to that of the prosecutor, he comes to
trial at a distinctive disadvantage. The inquisitorial system therefore seeks to
maintain a balance in trial proceedings to placing upon the judges and not upon
the parties, the primary duty of bringing out evidence.
Main features
of inquisitorial system;
1.
Judge centred
Trials that follow the inquisitorial
system are judge centred in the sense that it is the judge who calls and
interrogates the witness and who decides upon the order in which the evidence
is to be taken.
2.
Questioning done by judge
All questioning is done by the judge
and there is no distinction between examination in chief and cross examination.
3.
Judge has a duty to ascertain all
facts;
It is the judge’s duty to ascertain all
facts neither the prosecution nor the defense is under a legal burden of proof.
However, in practice the defense sometimes may have a duty of producing some
evidence. The prosecution and the defense play comparatively minor roles at the
trial. After the judge has finished the examination of a witness or of the
accused, they may suggest that he put additional questions or they may ask
supplementary questions themselves. They may also suggest the judge take
further evidence. After all the evidence has been heard they have a right to
address the court.
4.
Quasi – scientific search for the truth
The inquisitorial procedure is
considered a quasi scientific search for the truth rather than a dispute. Like
a historian the judge collects and analyses the facts. He tries to draw an
objective and comprehensive picture of the alleged offense by integrating the
arguments and evidence of the prosecution and the defense. The essence of
inquisitorial may be called seeking of truth by integration.
Main features
of the adversarial system
1.
Trial is party centred
The parties present their case to the
judge or jury. The parties almost always control and manage the presentation of
evidence from which the facts are constructed.
2.
Contest between parties
Related to the concept of party control
of the proceedings, an adversarial trial takes the approach of a contest
between the parties. Facts are proven though persuasion.
3.
Prosecution and defense do not have same rights and duties;
The
prosecution is bound to prove its case beyond reasonable doubt while the
accused in some cases has a duty to produce evidence as to prove his case on a
preponderance of probabilities. The prosecution is not under a duty to obtain a
conviction. It simply has to present all relevant facts to the court and to see
that justice is done.
4.
Judges role is mainly passive
The judge has to listen to the evidence
that is presented to him and he has to hear the arguments of the parties. Yet
he may not be totally inactive. He may rule on admissibility of evidence. He
may intervene to promote expedition of the case. He may also put supplementary
questions to the witnesses.
5.
Focuses more on resolving dispute as
opposed to finding the truth
TOPIC 10: JUDGEMENT
AND SENTENCING
At the end of
trial the judicial officer shall proceed to write the judgment of the court.
A judgment is
the final decision of the court as pertains the guilt or otherwise of the
accused person. It is entered and rendered by the court once all evidence has
been adduced by both sides.
Section 169 of the CPC
provides that each and every judgment shall be written by or under the
direction of the presiding officer of the court in the language of the court
Shall contain
the point or points for determination, the decision thereon and the
reason for the decision
Shall be dated
and signed by the presiding officer in open court at the time of pronouncement
In the case of
conviction the judgment shall specify the offence and the section of the law
creating it, which the accused is convicted and the punishment
In the case of
an acquittal, the judgment shall state the offence of which the accused is
acquitted and direct that the accused be set at liberty
The accused
person to be given a copy of the judgment or a translation
The first
paragraph of the judgment should contain a brief statement of the offence,
together with the brief particulars
The next
paragraph should contain a summary of the evidence of the prosecution – it
should be in narrative or story form
The next
paragraph should be a summary of the defense case.
The magistrate
should not deal with irrelevancies but should proceed to the crux of the matteR
.
They must
appreciate the issues before the court,
any discrepancy must be considered at this stage. They must expose the evidence to scrutiny
before judgment.
Whatever
reasons one gives must be anchored to the law.
The reasoning must be legally competent.
The judgment
must in no uncertain terms give a verdict.
The verdict
must be in respect of accused person in each and every count.
Any unusual
circumstances arising in the course of trial should be recorded where
relevant. One should make reference to
the unusual circumstances in the judgment.
One must look
at the standards of proof. In criminal cases it is beyond reasonable
doubt.
In many
criminal cases corroboration is required. The judgment must make reference to the
corroboration.
Rules of
evidence must be followed. For example
where there was a confession, the judgment must indicate that there was a
confession.
S. 168 provides that
the substance of judgment shall be explained in open court.
The rules are
that the prosecution or the defence can make an application for the whole
judgment to be read.
The courts read
the whole judgment. One can read the key
issues arising in judgement such as the judgment and then give copies of the
judgment for parties to peruse at their own time, where the accused is being
acquitted.
No alterations
can be made on the judgment after delivery.
The court cannot on its own review the case, after delivery of judgment
the court becomes functus officio.
Until judgment
has been given and a decision made does the court proceed to give a sentence.
Judgment does
not contain a sentence. It is about
determining the verdict.
SENTENCING
Where a finding of guilt is arrived at by the court and a conviction
entered the stage is set for the court to impose a penalty by passing a
sentence upon the convicted offender.
Sentencing is
seen as a crime prevention mechanism.
Broadly
speaking sentencing has the following purposes;
To act as
punishment
To act as a
form of treatment
To act as a
deterrent factor
As a measure of
protection for society
Most sentences
however embody all the four aspects as each is important.
In Kenya we
have provisions for both mandatory and discretionary sentencing.
All offences
punishable by death do not give room for discretion and the death sentence once
awarded and upheld up to the Court of Appeal can only be commuted by the
president in exercise of his constitutional powers of pardon.
In all other
cases the courts have discretion which must take into account the maximum
sentence as provided by statute.
In Kennedy
Indiema vs Republic, it was held that the sentence imposed on an accused person
must be commensurate with the moral blameworthiness of the offender.
Having given
judgment, the judicial officer must then go into the process of awarding
sentence.
Section 216
provides that the court may, before passing sentence or making an order against
an accused person, receive such evidence as it thinks fit in order to inform
itself as to the sentence or order properly to be passed or made.
Factors to be considered
before sentencing.
The cause of
crime. There are various socio economic factors that may lead to crime i.e.
poverty, drunkenness, avarice, greed, anger, lust opportunity, habit insanity
ignorance, unemployment, broken home, psychological problems etc.
Whereas it is
not always possible to tell why a crime is committed where motive can be
established it ought to be taken into consideration.
The
magnitude of the crime. The level of seriousness and gravity of other offence
must be taken into account including the impact on the victim and society
generally.
Prevalence and
type of crime. What is the frequency or rarity of the type of crime? Is it
comparatively more prevalent in one area? Is there a sudden spare in the type
of crime?
Aggravating or
extenuating circumstances. These are circumstances that are peculiar to the
offence e.g. opportunity provocation.
Accused.
Circumstances, character, attitude etc. These are issues which would ordinarily
arise during mitigation.
Previous
conviction. This will be raised by the prosecution. The court should consider
whether they are similar as well as their relevance in the case. They should be
a good indication of the offender’s previous interaction with the criminal
justice system.
In most cases
the courts tend to be more lenient to first offenders.
The court will
also consider uniformity in approach to sentencing.
This is in
order to avoid disparities by the same court as well as in comparison to other
courts in sentencing offence of similar nature etc.
This should be
supported by a clear sentencing policy that is known to judicial offices.
Such a policy
will generally enhance the credibility of courts.
Offenders will
know what to expect and in a sense it should therefore act as a deterrent
factor when offenders can with some amount of certainty predict the kind of
sentences that their offences are likely to attract.
Types of
sentences
Section 24 of
the Penal Code makes provision for the various types of sentences that courts
may award;
Death is
mandatory for murder, treason, robbery with violence or
attempted robbery with violence.
Imprisonment – is the most
popular punishment and it entails the actual physical restrain of the offender
by placing him in custody.
Fines -are rarely
imposed in felonies but are frequently utilised in misdemeanours and statutory
offences.
The court may
award the sentence to be served either consecutively or concurrently where the
offender is sentenced to more than one offence.
Each count
attracts their own sentence and there is no generic sentence.
Victim Impact
Statement
Victim Impact
Statement means a statement containing particulars of;
In the case of
a primary victim, any personal harm suffered by the victim as a direct result
of the offence; or
In the case of
a family victim, the impact of the primary victims death on the members of the
primary victims immediate family’ members of the immediate family as defined as
The victim’s
spouse
¡ The victims de
facto spouse being a person who has cohabited with the victim for at least 2
years
¡ A parent,
guardian or step parent of the victim
¡ Child or step
child of the victim or some other child of whom the victim is a guardian
¡ A brother,
sister, step brother or step sister to the victim.
A primary
victim is a person against whom the offence was committed or a person who was a
witness to the act of actual or threatened violence, the death or the
infliction of bodily harm concerned, being a person who has suffered personal
harm as a direct result of the offence or a personal harm.
Section 329C makes it
discretionary upon the court to determine whether or not to receive and adopt a
victim impact statement, after conviction and before sentence.
Where the
primary victim has died as a direct result of the offence then the court may
receive a statement from a family victim.
The impact
statement must be in writing and such other requirements as per the rules
(rules are to be made by the Chief Justice).
The court shall
not accept a victim impact statement unless it has been filed by or on behalf
of the victim to whom it relates; or by and on behalf of the prosecutor.
The court shall
only consider a statement by a family victim if it considers it appropriate to
do so.
MITIGATION
It is a well
established practice that the court should consider mitigation from the
offender.
It is at this
juncture that the offender has opportunity to inform the court of his personal
circumstances that could mitigate against a harsh/inappropriate sentence.
The facts
relied by the accused in mitigation may be questioned by the prosecution, in
which case evidence must be heard and the finding made as to disputed facts.
In the absence
of evidence to the contrary, the court ought not to ignore mitigating
circumstances put forward by the accused.
It is not
mandatory for a court to receive such information but it is desirable to do so.
See Republic vs Nasanairi Nsubuga
Although
mitigating factors may require an accused to be treated leniently, they do not
entitle or guarantee the accused that he will in fact be so treated.
Having heard
the prosecution, including the victim impact statement if any, and the accused,
the court will then be in apposition to award a suitable sentence.
TOPIC 11: APPEALS AND
REVISION
1.2.Introduction.
A party
aggrieved by a decision of the trial court if dissatisfied by the trial court’s
decision may appeal to the court of higher jurisdiction.
An appeal from
a subordinate court will lie to the High Court whereas one from the High Court
will lie to the Court of Appeal.
There are also
instances of appeal from Court of Appeal to the Supreme Court.
On appeal a
court will only interfere with a decision of a trial court where; or
(i)
The sentence was imposed against
legal principles;
(ii)
Relevant factors were not considered;
(iii)
Irrelevant and or extraneous matters
were considered
(iv)
The sentence is manifestly excessive
in view of the circumstances
Nature of
appeals
Section 347 CPC
- A person convicted on trial held by a subordinate court may appeal to the
High Court on both fact and law
S 348 - a
person who pleaded guilty cannot appeal against conviction but only against the
sentence unless alleged the plea was not unequivocal.
DPP
Section 348A AG
(now DPP) can only appeal an acquittal o a matter of law only
DPP has no
right of appeal on facts.
Period for
appeal
14 days from
the day of passing the order intended to be appealed from. (s. 349 cpc)
The appellate
court may admit an appeal out of time if good reason is shown.
Good reason can
be shown through a delay in receiving a copy of the judgment or record.
Form of appeal
Appeal is made
in the form of a petition. The court document containing the appeal is
therefore called The Petition of Appeal.
It must be
signed by the appellant or counsel on his behalf;
Must contain
particulars of issues either legal or factual appealed on;
Must contain
address of service.
Form
Every petition
must be accompanied by a copy of the judgment or order appealed against unless
the High Court directs otherwise. S 350 (1)
The petition
must contain all details as the court will not entertain any issues not raised
within the petition. S350 (2)
However,
subject to leave of the court an appellant may amend the petition of.
Number of
judges
Appeals from
subordinate Courts are heard by two judges of the High Court unless the CJ of
Presiding Judge (as authorised by CJ) directs that it be heard by one judge.
If on hearing
the appeal the Court is equally split then the appeal is heard afresh before
three judges.
Summary
disposal of appeal
A Judge may
reject an appeal summarily having perused and considered that there is no
sufficient ground for interfering. S 352(2)
Ndungu v. R the Court said
a Court may summarily reject an appeal only where an appeal is on the grounds
that conviction is against the weight of the evidence or that the sentence is
excessive.
S 352A where an
appeal has been lodged and a judge of the High Court is satisfied that a
conviction cannot be supported and the AG (DPP) has informed the court that he
does not support the conviction, the judge may summarily allow the appeal.
Hearing of
appeal
The appellant
first addresses the court the respondent responds.
The appellant
may be granted a second bite at the cherry after the respondent has addressed
the court.
Orders
If an appeal is
against a conviction the Court may:
a)
Reverse the finding and sentence and
acquit or discharge the accused or order a retrial;
b)
Alter the finding, maintaining the
sentence or reduce or increase the sentence;
c)
With or without a reduction or
increase, alter the nature of the sentence
If an appeal is
against a sentence, the appellate court may increase or reduce thye sentence or
alter the nature of the sentence.
If an appeal is
from an acquittal, the appellate court can reverse or affirm
Additional
evidence
The High Court
has powers to take additional evidence on appeal if it feels that the same is
necessary.
It can take the
evidence by itself or direct a subordinate court to do it.
Second appeals
An appellant may appeal to the Court of Appeal from a judgment of the
High Court on appeal on a matter of law only.
Sentence can be a subject of a second appeal where the High Court enhanced
it.
On hearing the appeal, the court of appeal may set aside or vary the
judgment. Alternatively it may remit the case with appropriate directions to
either court.
REVISION
Other than the appellate jurisdiction, the High Court has power to cals
for and examine the record of any criminal proceedings before any subordinate
court - S 362 CPC
The purpose of this is for the High Court to satisfy itself of the
correctness, legality or propriety of any finding, sentence or order in the
subordinate court. Esther Ngure v. R
Any party may move the High Court or it may act suo motu
