The Quick Law Series

Criminal Litigation
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The Basic Principles

Charles Mwaura Kamau



[A series of study notes precisely designed to make the process of revision fun
and most importantly effective. Welcome to the A Class. No more pre-
examination panic]

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PREFACE
Firstly, I have endeavored to give a concise summary of the core principles and
procedures of criminal litigation as best as I could, (taking into account the
targeted level as well as the purpose), however, human nature should be taken
into account when reading the booklet.
All I Ask is that, you will be slow to judge but, quick to advice.
Secondly, I have taken great care to make sure that the materials within the
booklet are not covered by copyright protection. For the copyrighted material,
they have been used to the extent covered by fair use and proper referencing
and acknowledgement adhered to.
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Thirdly, in the course of reading this booklet, the reader should constantly be
conscious that this is more of a guide book, designed to serve as a springboard
to further research.
Lastly, but not in any way least, no warranties are given as to the accurateness of
any principle of law. For that matter, the reader is urged to always consult the
primary sources, (legislation and recent relevant case-law) for the correct
position of law.
CMK



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Foreword
If I can give a student one corner of the subject and he
cannot find the other three, the lesson is not worth teaching
Confucius, Natural justice is not observed if the scales of
justice are tilted against one side all through the proceedings.
The principle of audi alteram partem means that both sides
must be fairly heard The dispensation of justice, in order to
achieve its ends, must be even-handed in form as well as in
content.
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Table of Contents
Chapter 1 ................................................................................................. 20
CRIMINAL LAW PRINCIPLES.................................................................... 20
Elements of a Crime ............................................................................ 20
Presumption of innocence .............................................................. 31
Burden of proof ............................................................................... 36
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Standard of proof ............................................................................ 38
Right to Silence ............................................................................... 41
Rule against retroactivity ................................................................ 42
Classification of crimes.................................................................... 43
Chapter 2 ................................................................................................. 47
Defences .................................................................................................. 47
Minority age .................................................................................... 58
Insanity ............................................................................................ 58
Diminished Responsibility ............................................................... 60
Intoxication ..................................................................................... 62
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Automatism ..................................................................................... 73
Self Defence .................................................................................... 77
Provocation ..................................................................................... 81
Duress and Necessity ...................................................................... 86
Double jeopardy and res judicata ................................................... 87
Chapter 3 ................................................................................................. 96
CRIMINAL PROCEDURE ........................................................................... 96
Bail ................................................................................................. 107
Case Files ....................................................................................... 109
Prosecutors file ............................................................................ 110
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Defence File ................................................................................... 122
Court File ....................................................................................... 125
Chapter 4 ............................................................................................... 127
The Trial Process ................................................................................... 127
Plea-taking proceedings: ............................................................... 128
Procedure at plea stage ................................................................ 129
Hearing Process; Trial Court .......................................................... 132
Examination-In-Chief (Direct Examination) .................................. 136
Cross Examination ......................................................................... 137
Re-Examination ............................................................................. 138
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Closing Submissions ...................................................................... 139
Defence Hearing ............................................................................ 141
Judgment ....................................................................................... 142
Chapter 5 ............................................................................................... 152
EVIDENCE .............................................................................................. 152
General Principles of Evidence .......................................................... 152
The Best Evidence Rule ................................................................. 153
Relevance and exclusionary rules of evidence ............................. 154
Admissibility .................................................................................. 157
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Hearsay ......................................................................................... 160
Admissions and confessions ......................................................... 168
Evidence of bad character............................................................. 186

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CRIMINAL LITIGATION
The fundamental concepts of justice hold that rules and procedures will
not avoid constitutional challenge simply because they are authorised by
a statutory enactment or by a common law rule.
Our Criminal Law and our legal regimes were generally inherited from the
English legal system. (Having in mind Section 3 of the Judicature Act)
English jurisprudence has played a fundamental role in molding the
practice of law in this country. Therefore it is only prudent that we study
the English development for pointers on the natural trajectory of some of
the basic principles of criminal law.
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It is important to note from the onset that, the purpose of criminal law
is to prohibit behavior that is considered as a serious wrong against an
individual or against some fundamental moral or social value in society.
Thus, the content of the criminal law and the associated sanctions also
reflect the moral or social values held by a society, and these will
inevitably change over time. What this means is that, over time, the
boundaries of criminal law does shift.
Aims and objectives
At the end of the booklet the reader is expected to:-
a) Have a basic understanding of principles of criminal law.
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b) Identify circumstances where there may be some conditions or
circumstances present which suggest that either no criminal
liability should be attached.(defences)
c) Understand the relevant pleadings and documents necessary for
criminal litigation. (file contents)
d) Apply the Criminal Procedure Code , the Penal Code and other
statutes relating to criminal litigation;
e) Understand the processes of criminal litigation generally;
f) Have a passing understanding of the rules of evidence which are
crucial in criminal litigation.
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NOTE
This booklet is designed to supply the reader with only the basic
principles and should therefore be used in conjunction with The
Constitution of Kenya as well as other relevant statutes such as;
1. Criminal Procedure Code Cap 75 Laws of Kenya
2. Penal Code Cap 63 Laws of Kenya
3. Magistrates Courts Act Cap 10 Laws of Kenya
4. Evidence Act Cap 80 Laws of Kenya
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5. Judicature Act Cap 8 Laws of Kenya
6. Limitations of Actions Act Cap 22 Laws of Kenya
7. Prisons Act Cap 90 Laws of Kenya
8. Dangerous Drugs Act Cap 245 Laws of Kenya
9. Narcotic and Psychotropic Substances (Control) Act No. 4 of 1994
10. Childrens Act No. 8 of 2001
11. Criminal Law (Amendment) Act No. 5 of 2003
12. Witness Protection Act, 2006
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13. Sexual Offences Act,2006
14. International crimes Act, 2008
The main areas covered in the booklet are:
Criminal law: this is the substantive law of crimes. This is one of the laws
legislated to guide human conduct in relation to another human being
and society in general.
Criminal Procedure: The process by which Criminal law trial is conducted.
Law of Evidence: this entails Obtaining facts (Investigations) and the
means of proving them.
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Trial Advocacy- The skills involved in the litigation process

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Chapter 1
CRIMINAL LAW PRINCIPLES
The primary purpose of the criminal law is to prohibit behavior that
represents a serious wrong against an individual or against some
fundamental social value in society.
Elements of a Crime
It is a basic principle of Criminal law that a person may not be convicted
of a crime unless the prosecution proves beyond reasonable doubt that:
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he caused a certain event or state of affairs which is forbidden
by Criminal law (actus reus)
he had a defined state of mind in relation to causing the event or
the existence of the state of affairs. (mens rea ) that is, a person
must also have a guilty mind.
Actus reus
The action of the suspect may be deduced from:
Result crimes:
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The actus reus generally requires that the defendant did an act
which is defined by law as being Criminal Offences such as murder,
assault or rape. These offences require proof of a result as part of
actus reus.
Conduct:
Some offences only require the action of the suspect to be proved.
This offences of conduct do not require proof of any result or
consequence.
Circumstances:
For other offences the actus reus of an offence may consist of elements
external to the actions of the suspect.
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For example, in an offence of being drunk and disorderly, the
circumstance of the suspect being drunk and being found disorderly by
those who see him proves the offence.

NOTE
Some offences do not require any fault at all, but where fault is required
for criminal liability it may incorporate any or any combination of the
following ingredients:
Intent as to a consequence, a term which covers Xs purpose and
also Xs foresight of a virtually certain consequence;
Knowledge or belief as to a present fact (which exists);
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Belief as to the highly probable or certain existence of a present
or future fact (which may or may not need to exist)
Belief as to the possible existence of a present or future fact
(which may or may not need to exist), including the concept of
subjective recklessness
Dishonesty
Negligence, requiring proof that Xs conduct fell below the
standard to be expected of a reasonable (and sober) person.
REMEMBER
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An act does not make man guilty of a crime, unless his mind is also
guilty.
Mens Rea
As we have already seen, it is a general principle in Criminal law that the
accused person possesses the necessary mens rea at the time the actus
reus is committed.
Mens rea denotes the guilty mind. The mind must be guilty at the time of
carrying out the prohibited act.
There are 4 states of mind which separately or together constitute
mens rea;
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Intention:
Direct intention
This means the suspect had the purpose, object, desire or
ultimate aim to commit the crime.
oblique intention
This means the suspect had an aim to commit one crime but ended up
committing another.

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NOTE
It is difficult to define intention except consider each case on its own
merits.
Recklessness:
This means the taking of unjustified risks.
The court considers the following factors when deciding if an act was
reckless:
the likelihood of consequences,
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how socially useful the acts are and
what and how easily precautions could be taken, to avoid or
minimize risk.
Negligence
Negligence means ones actions fell below the standard of an ordinary
reasonable man.
It covers the person who does something a reasonable man would not do
or not doing something a reasonable man would do.
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The test is objective based on an ordinary reasonable man rather than
subjective, based on the defendant himself.
Transferred intent or malice:
The law holds that the defendant is liable for an offence if he has the
necessary mens rea and commits the actus reus even if the victim differs
from the one intended, or the consequence occurs in a different way.
For example:
Where a defendant fires a gun intending to kill X, but misses and instead
kills Y, he will not be able to escape liability for the murder of Y simply
because he had the intention to kill X.
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Exceptions to the rule of mens rea
Strict Liability offences
This are Crimes which do not require intention, recklessness or negligence
as to one or more elements in the actus reus are known as offences of
strict liability or absolute prohibition.
The offences prescribe certain conduct and are regulatory in nature.
Vicarious Liability offences
These are offences whose liability is visited on the suspect for the acts of
others e.g. principal and agent relationship.
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For example employers such as, Companies are charged through Board
of Directors, for the acts of its employees.
Presumption of innocence
The presumption of innocence is a vital, constitutionally guaranteed, right
of a person accused in a criminal trial and that right has been expressly
recognised in all of the major international human rights instruments
currently in force.
Under the presumption of innocence principle the court must start with
the idea that the accused has not committed the offence charged until
the prosecution proves otherwise.
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The burden of proof is on the prosecution and any doubt should benefit
the accused.
In Sweet v Parsley [1970] AC 132, Lord Reid stated that:
there has for centuries been a presumption that Parliament did not
intend to make criminals of persons who were in no way blameworthy in
what they did. That means that whenever a section is silent as to mens
rea there is a presumption that, in order to give effect to the will of
Parliament, we must read in words appropriate to require mens rea .. it
is firmly established by a host of authorities that mens rea is an essential
ingredient of every offence unless some reason can be found for holding
that that is not necessary
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Thus, in interpreting an offence-creating statutory provision, the
starting-point for the court is, as Lord Nicholls of Birkenhead put it in B (A
Minor) v Director of Public Prosecutions [2000] 2 AC 428, 460, is:
the established common law presumption that a mental element,
traditionally labeled mens rea, is an essential ingredient unless Parliament
has indicated a contrary intention either expressly or by necessary
implication
The underlying rationale of the presumption is an essentially simple one:
that it is repugnant to ordinary notions of fairness for a prosecutor to
accuse a defendant of crime and for the defendant to be then required to
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disprove the accusation on pain of conviction and punishment if he fails
to do so.
burden of proof
The burden of proof always lies with the prosecution and once a defence
is raised the accused is entitled to be acquitted unless the prosecution
disproves that defence.
1


1
Woolmington v. DPP (1935).
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It is not for the accused to establish his innocence, but for the
prosecution to establish his guilt. While the prosecution must prove the
guiltiness of the accused, there is no such burden laid on the accused to
prove his innocence and it is sufficient for him to raise a doubt as to his
guilt; he is not bound to satisfy to the court of his innocence.
NOTE
This is a strong presumption, not easily displaced. The more serious the
crime, the more severe the potential consequences of conviction, and the
less readily it will be displaced.
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The presumption of innocence is infringed where the burden of proof is
shifted from the prosecution to the defence.
Burden of proof
The burden of proof is concerned with the question of whose duty it is to
place evidence before the Court.
Exceptions
There are exceptions to the rule that the prosecution bears the burden of
proof in relation to every issue arising in the course of a criminal trial.
Common Law
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If an accused argues that he is unfit to plead then he must prove that
unfitness on the balance of probabilities. If an accused raises the defence
of insanity or diminished responsibility he must prove, on the balance of
probabilities that he was insane at the time of committing the offence.
Statute
The second exception is where the accused raises as statutory defence
and the statute provides for the accused to prove this defence on the
balance of probabilities.
Balance of probabilities
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This means that the one can only succeed if he shows that his version
of events is more likely than not.
Standard of proof
The standard of proof is concerned with, what weight the Court should
place on the evidence that is placed before it.
The standard of proof is the threshold that the prosecution must meet in
order to secure a conviction against the accused.
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The standard of proof in criminal law is higher than on the balance of
probabilities. Guilt must be shown beyond reasonable doubt. The
standard of proof was explained by
Proof beyond reasonable doubt
This does not mean proof beyond the shadow of a doubt.
It means that if the evidence is so strong against a man as to leave only a
remote possibility in his favour, which can be dismissed with the sentence
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of course it is possible, but not in the least probably, the case is
proved beyond reasonable doubt, but nothing short of that will suffice.
2

What this means is that if there is any doubt at all, in the mind of the
judge, then the accused is entitled to the benefit of that doubt and must
be found not guilty.
NOTE

2
Per Denning J. in Miller v. Minister for Pensions (1947)

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In criminal matters the main role of the defence counsel is to create
doubt in the mind of the judge.
Right to Silence
The right to silence is guaranteed by the Constitution.
The right includes a privilege against self-incrimination and is closely
related to the presumption of innocence.
The reasoning is that: If it is the role of the prosecution to prove that an
offence has been committed then logically it should not be the
responsibility of the accused person to facilitate the prosecution by being
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forced by the police to give them evidentiary materials that will be used
against him.
NOTE
Suspects enjoy a privilege not to incriminate themselves. That is to have
no comment. On any questions they opt not to answer.
At the trial an accused person may also choose not to testify.
Rule against retroactivity
Another widely accepted principle of criminal law is the rule against
retroactivity, which prohibits the imposition of ex post facto laws (i.e.,
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laws that would allow an individual to be punished for conduct that was
not criminal at the time it was carried out).
Classification of crimes
Misdemeanors
This means petty crimes.
Felonies
This means serious offences.
Inchoate and Choate crimes
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This means incomplete and complete criminal activity, examples
include: incitement, conspiracy and attempts
Specific intent
Offences of specific intent always require proof that X acted with a
particular state of mind, that is, the state of mind required by the legal
definition of the fault element.
An example of a state of mind labeled as a specific intent is the fault
element of murder, the intent to kill or cause grievous bodily harm.
The prosecution must always prove that X acted with one of these two
states of mind.
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REMEMBER:
The notion of specific intent extends to some states of mind which are
not intentions.
Basic intent
Offences which do not require the prosecution to prove that X acted with
a specific intent have come to be known (confusingly) as offences of
basic intent.
This means, it is possible for X to be convicted of a basic intent offence
even if X did not act with the state of mind required by the legal definition
of the fault element.
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In DPP v Newbury [1977] AC 500, Lord Salmon said:
What is called a basic intention . . . is an intention to do the acts which
constitute the crime.
NOTE
The terms specific intent and basic intent are not particularly
enlightening.
The case law provides some guidance, but there is no single, uniform test
to be applied, and a very high degree of uncertainty.
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In other words there are a number of alternative theories as to the
meanings of these two terms, and the criteria for categorising offences in
this way which on their part cause a great deal of uncertainty.
3

Chapter 2
Defences
Defences are an embodiment of complex human notions of fairness and
morality
4


3
For example See smith and Hogan criminal law cases and materials 9
th
ed. OUP
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Criminal law recognises that certain acts should not be followed by
criminal proceedings, or at least should not lead to a conviction, because
of the presence of some specific factor or circumstance, such as the
legitimate entitlement to defend oneself in the face of unlawful force.

4 Robinson Criminal Law Defenses: A Systematic Analysis (1982) Columbia Law Rev, Vol.82
(2):199 -291 at 203.

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A fundamental reason why the criminal law contains a number of
defences is because it is not a tool for vengeance, but is one of the means
of attempting to ensure the peaceful existence of a community.
It is important to distinguish between a defence and mitigation. Where a
defendant successfully raises a defence, he or she is found not guilty, or is
convicted of a lesser offence. By contrast, mitigation means the defendant
has been found guilty but due to other factors his sentence should be
reduced.
Categories of defences
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Defences in the criminal law can be categorised in a number of ways.
For example;
The first category would be where the defendant lacked sufficient
capacity to commit the crime, such as because of age or other similar
reasons such as insanity.
A second category of defences arises where the defendant has engaged in
the required physical element (actus reus) and fault element (mens rea)
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of an offence but where some justifying or excusing circumstance
arises, such as legitimate defence or provocation.
5

A third categorisation is to distinguish between defences that can lead to
an acquittal, such as legitimate defence, and a defence leading to a
reduction only in the nature of the crime involved, such as Intoxication .
A fourth method differentiates between defences that apply to all crimes
(such as legitimate defence), and those which apply to particular crimes

5
This have sometimes been described as defences in the true sense. See Ormerod Smith
& Hogans Criminal Law 11th ed (Oxford University Press 2005) at 247.
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only (such as provocation and diminished responsibility, which for
example only apply to murder and which also involve, as already
mentioned, a reduction from murder to manslaughter only).
One further well-recognised matter is based on the underlying rationale
for the defence: whether it is justificatory or excusatory.
6

Another category is known as non-exculpatory defences this caters for
defences that for reasons other than blameworthiness or a lack of
capacity, a trial is unable to continue. Included here are, renunciation of a

6
See Chalmers Criminal Defences and Pleas in Bar of Trial (Thomson, 2006) at Chapter 1.
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right to prosecute, entrapment, other pleas in bar of trial (such as pre-
trial publicity or insanity), time bars, delay and res judicata.
Defences based on justification and excuse
Justification defences and excuse defences are similar in the sense that
the actus reus and mens rea for the offence has been established but they
are distinct in other important respects.
Justification-based defences imply that the conduct of the accused was
the right thing to do it was acceptable even though it satisfied the
definition of the offence.
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By contrast, excuse-based defences deem the conduct of the accused
as unacceptable and wrong, but there is a reason why the accused should
not be blamed, he or she should be excused or forgiven.
The philosopher HLA Hart refers to justified conduct as:
Something the law does not condemn or even welcomes
While excuse is claimed when
What has been done is something which is deplored, but the
psychological state of the agent when he did it exemplified one or more of
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a variety of conditions which are held to rule out public condemnation
and punishment of individuals.
7

NOTE
A claim of justification focuses primarily on the act while a claim of excuse
focuses on the conduct of the individual.

7
Hart Punishment and Responsibility: Essays in the Philosophy of Law (Oxford: Clarendon
Press, 1968) at 212-222.
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In other words Claims of justifications concede that the definition of
the offence is satisfied, but challenge whether the act is wrongful; claims
of excuse concede that the act is wrongful, but seeks to avoid the
attribution of the act to the actor. A justification speaks to the rightness of
an act; an excuse, to whether the actor is accountable for a concededly
wrongful act.
8

REMEMBER

8
Fletcher Rethinking Criminal Law (Boston: Little, Brown, 1978) at 759.
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There are conflicting views as to whether it really matters whether a
defence is a justification or an excuse.
9
There is little difference so far as
the acquittal of the person relying on the defence is concerned. The
defendant is not concerned whether the defence is labeled as a
justification or an excuse, but rather is only concerned with whether the
defence frees them of criminal liability.
Lack of Capacity Defence

9
See Robinson Criminal Law Defenses: A Systematic Analysis (1982) 82 Col LR 199.

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Minority age
Those who are considered as being under the age of criminal
responsibility are held to be incapable of committing a crime. Sec 8 of
Penal code holds that those under the age of 8 years cannot be held
criminally responsible for their acts.
Insanity
Broadly speaking, an accused persons sanity may be relevant to the
criminal law in two ways.
Firstly, the accused may claim to be insane at the time of the commission
of the crime.
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Secondly, the accused may claim to be insane at the time of the trial
and therefore unfit to plead to the charge. This second category is
technically a matter of procedure.
The common law defence of insanity was set out definitively in the
English case R v MNaghten1843) 4 St Tr (ns) 817. in 1843 where it was
held:
- Firstly, it must be clearly shown that, at the time of
committing the act, the defendant was labouring under a
defect of reason caused by a disease of the mind as not to
know the nature and quality of the act he was doing,

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- secondly, that if he did know it (the nature), that he did
not know he was doing what was wrong.
NOTE
The legal definition of disease of the mind does not necessarily coincide
with the medical definition.

Diminished Responsibility
This defence is a partial defence to murder, reducing the verdict of
murder to manslaughter.
For the defence to apply there must be aberration or weakness of mind;
that there must be some form of mental unsoundness; that there must be
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a state of mind which is bordering on, though not amounting to,
insanity; that there must be a mind so affected that responsibility is
diminished from full responsibility to partial responsibility.
In other words, the suspect in question must be only partially accountable
for his actions. And one can see running through the cases that there is
implied ... that there must be some form of mental disease.
10


10
Per Lord Alness HM Advocate v Savage 1923 JC49 at 51.

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Intoxication
Traditionally, the intoxication excuse provided no defence for the
criminal offender and, as far back as 1551, it was held in Reniger v
Fogossa
11

if a person that is drunk kills another this shall be a felony, and he shall
be hanged for it, and yet he did it through ignorance, for when he was
drunk he had no understanding nor memory; but in as much as that

11
(1551) 1 Plowd. 1,at 19; 75 ER 1, at 31
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ignorance was occasioned by his own act and folly, he shall not be
privileged thereby
From this early decision, the rule or defence of intoxication has evolved
and may provide a defence to the committal of a criminal act in stringent
circumstances.
In the English case DPP v Beard it was held that intoxication may negate
intention in an offence involving specific intent, thus laying the
foundations for the modern position of classifying offences for the
purposes of the plea.
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This approach was confirmed and became settled in the landmark UK
decision DPP v Majewski
12
In the case the UK House of Lords
unanimously decided that the plea of intoxication is available in all crimes
of specific intent but, reaffirming the traditional rule on self-induced
intoxication, held that it is generally no answer to crimes of basic or
general intent.
the Majewski rule

12
DPP v Majewski [1977] AC 443, 495
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According to the House of Lords, D is liable for an offence of basic
intent:
(1) if D commits its external element without the fault usually required for
liability, if the absence of such fault results from self-induced intoxication;
or
(2) if Ds self-induced intoxication causes him or her to commit the
external element as an automaton.
According to Lord Elwyn-Jones:
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If a man of his own volition takes a substance which causes him to cast
off the restraints of reason and conscience, no wrong is done to him by
holding him answerable criminally for any injury he may do while in that
condition. His course of conduct in reducing himself by drugs and drink to
that condition in my view supplies the evidence of mens rea, of guilty
mind certainly sufficient for crimes of basic intent.
To give an example, suppose it is proved that D unlawfully killed another
person while under the influence of alcohol or some other drug
voluntarily taken, but it is reasonably possible that D lacked the intent to
kill or cause grievous bodily harm on account of his or her intoxicated
state. In such a case, D is not liable for the specific intent offence of
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murder but D is liable for the alternative basic intent offence of
manslaughter.
Thus, while it is true that D will not be held liable for an offence of
specific intent if he or she acted without the state of mind required for
liability, D will (usually) be liable for an alternative offence of basic
intent (regardless of the fact that D acted without the state of mind
required for that offence).
Justifying the rule
The chain of reasoning advanced by the House of Lords in support of the
Majewski rule may be summarised as follows:
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(1) the maintenance of order and the need to keep public and private
violence under control is the prime purpose or one of the prime
purposes of the criminal law;
(2) self-induced intoxication through the consumption of alcohol has been
a factor in crimes of violence, such as assault, throughout the history of
crime, but in recent decades the problem has become more acute by
virtue of the voluntary consumption of other drugs;
(3) to allow D to avoid all liability in a case where he or she has caused
injury or death to another person, on the basis that he or she lacked the
fault element for liability because of self-induced intoxication, would fail
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to give effect to the prime purpose of the criminal law; in particular, it
would:
(a) leave the citizen legally unprotected from unprovoked violence where
such violence was the consequence of drink or drugs having obliterated
the capacity of the perpetrator to know what he was doing or what were
its consequences; and
(b) shock the public, ... rightly bring the law into contempt and ...
certainly increase one of the really serious menaces facing society today
(4) to provide the community with sufficient protection, therefore, there
must be a substantive rule of law to the effect that self-induced
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intoxication provides no defence to an allegation that D committed an
offence of basic intent
(5) the interests of the accused are adequately protected in that the trial
judge or magistrates will, when sentencing, always carefully [take] into
account all the circumstances ... before deciding which of the many
courses open should be adopted.
NOTE
The fact of self-induced intoxication does not, however, supply evidence
of mens rea for crimes of basic intent.
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A distinction needs to be drawn between the usual case of voluntary
intoxication and the rare case of involuntary intoxication.
The situation where Ds drink or food has been surreptitiously laced with
a drug, or D has been physically restrained and the intoxicant forcibly
administered, are obvious examples of involuntary intoxication.
As Professor Glanville Williams observes, it would be inimical to the
safety of all of us if the judges announced that anyone could gain
exemption from the criminal law by getting drunk.
13


13
G. Williams, Textbook of Criminal Law (2nd ed, 1983) p 466.
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REMEMBER-
No universally logical test for distinguishing between crimes in
which voluntary intoxication can be advanced as a defense and
those in which it cannot; there is a large element of policy;
categorisation is achieved on an offence by offence basis.
14


14
See Heard [2007] EWCA Crim 125, [2008] QB 43, para 32, accepting counsels
submission at para 12(ii
@CMK 2013 73
It is well established that a person charged with an offence of
specific intent may rely on evidence of self-induced intoxication
to avoid liability for that offence.

Automatism
Automatism occurs where a defendant suffers a complete loss of self-
control caused by an external factor such as being hit on the head and
then losing all awareness of their actions.
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Essentially automatism involves more than a claim that the individual
lacked mens rea (which he or she did); it involves a claim that he or she is
not acting, it is a complete denial of the actus reus.
Therefore, in order for a defendant to plead automatism it is necessary to
show that they suffered a complete loss of voluntary control, that this loss
of self-control was caused by an external factor and finally that they were
not at fault in losing capacity.
As mentioned above, the requirement of loss of self control being caused
by an external factor is an important aspect and ultimately distinguishes
inanity from automatism. If the loss of self-control is caused by an internal
factor the person is classified as insane. It can be extremely difficult at
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times to distinguish between internal and external factors. Examples of
external factors include a blow to the head or the taking of prescribed
medication.
Finally, as regards, the third requirement, a defendant cannot plead
automatism if he or she is responsible for causing the condition. For
example, if the defendants mental state is caused by taking alcohol or an
illegal drug he or she cannot plead automatism.
In Bailey [1983] 1 WLR 760 the Court of Appeal came to the following
conclusion as to the scope of the defence of automatism:
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[S]elf-induced automatism, other than due to intoxication from alcohol
or drugs, may provide a defence to crimes of basic intent. The question in
each case will be whether the prosecution have proved the necessary
element of recklessness.
The word recklessness was used by the Court of Appeal to refer to the
fault required of D in bringing about the condition of automatism. To be
liable for an offence requiring subjective recklessness, it seems D would
need to have been subjectively reckless, at least, in bringing about his or
her condition:
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Self Defence
The right of self defence is founded in the law of nature. In cases of
necessity the law of society fails: and the victim is remitted to his natural
rights. Foster
15

The law has always recognised that in certain situations individuals may
have to use force: to protect themselves or others; to protect property; to
prevent the commission of a crime or assist in a lawful arrest.

15
See a summary of Fosters position in Perkins & Boyce Criminal Law (3rd ed Foundation Press
1982) at 1121,

@CMK 2013 78
Legitimate use of force represents a balance between the needs of an
ordered society and the right of individuals to ensure their own
protection.
General scope of the defence
The general principle of legitimate defence is that the law allows the
accused to use such force against a threat that is reasonable and
necessary in the circumstances, as the accused believes them to be.
However, this causes a number of difficulties. For example;
- What is reasonable?
- How should lethal defensive force be defined?
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- Should lethal defensive force be defined at all?
- Should a generalised test of reasonableness prevail?
- How do the elements of proportionality, imminence and
necessity apply?

reasonableness
A classic pronouncement of the approach can be found in the decision of
the UK Privy Council (formerly the final court of appeal from many British
Commonwealth states) in Palmer v R [1971] AC 814.:
Some attacks may be serious and dangerous. Others may not be. If there
is some relatively minor attack it would not be common sense to permit
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some action of retaliation which was wholly out of proportion to the
necessities of the situationOf all these matters the good sense of the jury
will be the arbiter.

Some of the above questions are beyond the scope of this booklet.
16


16
For an in-depth discussion of some of the issues see Simmonds Central Issues in
Jurisprudence 2nd ed (Sweet & Maxwell 2002) Chapter 7.

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NOTE
Self-defence operates as a general defence, in that it applies to all criminal
offences.
Provocation
Provocation can be described as some act or series of acts (or words),
done by the deceased to the accused which causes the accused to


@CMK 2013 82
temporarily lose his or her self control at the time of the wrongful act.
Loss of self control is a key element in the defence of provocation
When raised successfully it operates to reduce murder to manslaughter.
Thus, even where the defence is successfully raised, the defendant will
still be held criminally liable for the lesser charge of manslaughter.
In R v Duffy[1949] 2 All ER 932, 932 ,Devlin J summarised the defence in a
sentence which is now regarded as a classic direction in provocation
cases:
Provocation is some act, or series of acts, done by the dead man to the
accused which would cause in any reasonable person, and actually causes
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in the accused, a sudden and temporary loss of self-control, rendering
the accused so subject to passion as to make him or her for the moment
not master of his mind.
Thus, provocation exists where it is possible to answer the following three
questions in the affirmative:
Did the provocation cause the defendant to lose self-control?
Did the defendant kill the victim while still out of control?
Having accessed the gravity of the provocation to the particular
defendant by reference to his or her personal characteristics, could an
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ordinary person be driven by provocation of that degree to act as the
defendant did, that is, to kill?
In essence, provocation is made up of two requirements.
First, the provocation had to be such as to temporarily deprive the person
provoked of the power of self-control, as a result of which he or she
committed the unlawful act which caused death.
Secondly, the provocation had to be such as would have made a
reasonable man act in the same way.
In modern times, these two requirements have come to be known as the
subjective and objective elements or tests of the defence of provocation.
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For the purposes of the law on provocation the reasonable person
means:
[A]n ordinary person of either sex, not exceptionally excitable or
pugnacious, but possessed of such powers of self control as everyone is
entitled to expect that his fellow citizens will exercise as it is today.
17


17
R v Camplin [1978] AC 705, 717 (Lord Diplock).
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Duress and Necessity
The defences of duress and necessity cater for cases where the defendant
breaks the law in circumstances where his freedom of choice was
constrained by serious threats.
Typically the defendant breaks the law rather than see the threats carried
out. The plea of duress applies in cases where the threats emanate from
a human source and have the form Do this or else; whereas the plea of
necessity covers situations where the threats are circumstantial or non-
human in origin.
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Double jeopardy and res judicata
The prosecution cannot be allowed to say heads I win, tails we play
again.
18

According to the Oxford English Dictionary, "double jeopardy" means "the
placing of a person in jeopardy twice for the same offence, against which
there is a common-law immunity".

18
Akhil Reed Amar, Double Jeopardy Made Simple [1997] 106 Yale Law Journal 1807

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In The Ampthill Peerage [1977] AC 547 Lord Wilberforce said:
"[a]ny determination of disputable fact may, the law recognises, be
imperfect: the law aims at providing the best and safest solution
compatible with human fallibility and having reached that conclusion, it
closes the book. The law knows, and we all know, that sometimes fresh
material may be found, which perhaps might lead to a different result,
but, in the interests of peace, certainty, and security, it prevents further
inquiry. It is said that in doing this, the law is preferring justice to truth.
That may be so: these values cannot always coincide. The law does its
best to reduce the gaps. But there are cases where the certainty of justice
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prevails over the possibility of truth. . . and these are cases where the
law insists on finality.
The point was emphasised by Lord Simon of Glaisdale:
But the fundamental principle that it is in society's interest that there
should be some end to litigation is seen most characteristically in the
recognition by our law by every system of law of the finality of a
judgment. If the judgment has been obtained by fraud or collusion it is
considered as a nullity and the law provides machinery whereby its nullity
can be so established. If the judgment has been obtained in consequence
of some procedural irregularity, it may sometimes be set aside. But such
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exceptional cases apart, the judgment must be allowed to conclude the
matter.
This appears to be the foundation of, and the justification for, the rule of
res judicata, that it is in the public interest that those engaged in a
litigation, whether directly or indirectly, should be able, and should
indeed be required, to carry on with their business in the future on the
basis that the decision reached by the courts is final.
The corollary is that it is not in the public interest for (scarce) public
resources and time to be occupied more than once in re-examining the
same issue between the same private parties.
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Further, the rule against double jeopardy is said to promote the proper
carrying out of the function of investigating and prosecuting crime or at
least to prevent, or discourage, impropriety in those functions.
19
If it
were not there, it is said, then there would be a tendency for police and
prosecutors not to exert themselves unduly before a first prosecution,
because there would always be the opportunity of a second chance.
NOTE

19
Ian Dennis, "Rethinking Double Jeopardy" [2000] Crim LR 933 at 941: "The double
jeopardy rule is said to promote efficient investigation and prosecution of offenders
because the police and the CPS know that they have only one chance of conviction)
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A person who has been wrongly convicted has the right to appeal or
review of the case in order to clear his name and reputation.
The second aspect of treating an acquittal or conviction as final is that not
to do so would be to alter one of the most fundamental elements of the
relationship between the citizen and the State.
REMEMBER
In order for a plea of res judicata to succeed on the basis that a one is
being charged with the same crime the charge must be substantially
identical to that in the earlier trial.
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Where there is a material difference between two indictments the plea
of res judicata cannot be sustained.
A plea of res judicata will be upheld only where a previous trial against
the accused for has been brought to a conclusion by the delivery of a
verdict, whether of conviction or acquittal. . Where the proceedings are
deserted pro loco et tempore prior to the return of a verdict, no plea of
res judicata will lie.
In order to found a plea of res judicata, the original proceedings must
have been competent.
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A plea of res judicata will be successful where the accused has
previously stood trial, which has been brought to a formal conclusion, for
the "same offence."
In considering a plea of res judicata, the court will look to the substance
of the complaint against the accused and not merely to its form.
The acquittal of the accused on a substantive charge will not bar his later
prosecution for perjury in relation to sworn evidence given by him at his trial.
A person who has been tried and acquitted, or tried and convicted, on a charge
of assault may subsequently be tried on a charge of murder or culpable
homicide if, after the first trial, the victim dies. In such a case death is a new
element and creates a new crime.
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Chapter 3
CRIMINAL PROCEDURE
The process of criminal procedure begins with then investigation and
arrest of the suspect and culminates in the acquittal or sentencing of the
defendant.
How Criminal Cases Are Initiated:
Criminal cases are initiated by a complaint being lodged. A complaint can
be lodged with the police. The complaints can also be lodged with
magistrates.
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When a complaint is lodged at the police station it is recorded in the
Occurrence Book (OB). The OB records who the complainant is and what
the complaint is.
The decision to file a case depends on the information in the OB, the
police will take a statement from the complainant. The police then have
to carry out further investigation, which includes collection of evidence
such as witness statements as well as exhibits.
Once the police decide what kind of offence has been committed, they
draw a charge sheet.
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The police can then proceed and make an arrest of the suspect. The
provisions are such that in most cases the police can arrest a suspect
without a warrant of arrest.
Under Section 21 (1) of CPC In making an arrest the police officer or other
person making it shall actually touch or confine the body of the person to
be arrested, unless there be a submission to custody by word or action.
Under Section 21(2) if a suspect resists arrest, the police officer may use
all means necessary to effect the arrest.
Arrest Defined
@CMK 2013 99
The Criminal Procedure Code (Cap. 75 of the Laws of Kenya)
(hereinafter the CPC) does not define arrest.
The Law Dictionary defines ARREST as follows:
- It is to derive a person of his liberty by legal authority
- Seizure of an alleged or suspected offended or to answer for a
crime
- Placing of a person in custody or under restraint, usually for the
purpose of compelling obedience to the law.
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Arrest can, therefore, be defined as the restraint imposed on a
persons personal liberty pursuant to a written law or to orders of a
competent authority for the purposes preventing the commission of, or
charging that person with, an offence.
Case Law Position
Case law suggests that the operative word in arrest is restraint of civil
liberty.
an arrest:
(i) occurs when a police officer states in certain terms that he is
making an arrest; or
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(ii) occurs when an officer uses force to restrain the individual
concerned; or
(iii) occurs when by words or conduct the officer makes it clear that he
will use force if necessary to restrain the individual from going
where he wants to go; but
(iv) does not occur where he stops an individual to make inquiries.
20

How the law controls the power of arrest


20
See Hussein v Chang Fook(1970) 2 WLR 441
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The Constitution

The constitution provides that any person arrested and detained should
be informed promptly; in a language he fully understands the reasons for
his arrest. (Article 49)

The CPC

If a person forcibly resists the attempt to arrest him, or attempts to evade
the arrest, the police officer or other person may use all means necessary
to effect the arrest but no use is allowed of greater force than was
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reasonable in the particular circumstance in which it was employed or
was necessary for the apprehension of the offender.
Section 24 of CPC provides that the arrested person must not be
subjected to more restraint than necessary to prevent escape.
NOTE
What is reasonable depends on the particulars of the case; there are no
hard and fast rules to govern all inevitable circumstances. However,
where the force used is unreasonable, the police officer is liable to be
charged with offences arising from their attempts to arrest a suspect.
Arrest warrants and search warrants
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Sections 100 to 117 generally deal with warrants of arrest.
Section 102 provides for a warrant of Arrest. It states that every warrant
of arrest shall be under the hand or a Judge or a Magistrate issuing it.
This means it must be in writing and bear the seal of the court and state
the offence for which it is being issued. It shall also state the name and
who is supposed to implement that warrant of arrest, it can be addressed
to the Officer in charge of a police station.
The warrant must state the offence with which the person against whom
it is issued is charged.
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The warrant is directed to the Police Officer against the suspect and
the witness. Section 104 says that the warrant may be directed to one or
more police officers within which the court has jurisdiction or generally to
all police officers of the area.
In practice the court will issue a warrant and direct it to the Officer
Commanding Station (OCS), it is the OCS who then directs a certain officer
to execute the warrant.
The warrant will stay in force until it is executed. If the warrant is issued
the court will make an order and it shall be mentioned in 14 days time, if
the person is not apprehended the court will keep on mentioning until
the suspect is brought before court.
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Under Section 107 the officer shall notify the substance thereof to the
suspect to be arrested, it means that when one is to be arrested they
must go to the suspect and tell them they have a warrant and explain for
what the warrant has been issued.
It is wise counsel to demand that the police show the suspect the warrant
of arrest. There should be no ambush by the process, a suspect must be
well aware of what they are being arrested for.
Once somebody has been arrested, the police officer shall without
unnecessary delay bring the suspect to court without delay. Under the
constitution the suspect must be brought to court within 24 hours.
(Article49 (f))
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If the police wanted to search a premise they ought to go to court and
obtain a warrant. Otherwise, one can go to court and complain. Further
under the Evidence Act there are provisions that where evidence is
unlawfully obtained it cannot be used in court.
Bail
Bail is an agreement between the accused and court that the accused
shall appear when required in court. Sureties are also an agreement that
they guarantee that the accused shall appear in court when required.
Article 49 (h) of the constitution guarantees the right to bail unless there
are compelling circumstances.
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The court is the one that sets the bail terms. Court has discretion to
determine the kind of bail they can award to the suspect. Whenever
security is taken the officer to whom the warrant is directed shall forward
the bond back to the court.
Section 123 gives power to the police to issue bail at the police station.
Once a suspect is taken to court depending on why the warrant was
issued, a plea will be taken and depending on the kind of charges a
suspect may be released on bond.
Confessions
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Section 25A of Evidence Act holds that Any confession or admission
of fact shall not be proved unless made in court. Or made by the suspect
at the police station in the presence of a representative and the
statement be taken by an officer above the rank of Assistant Inspector.
Case Files
In criminal matters there are three crucial files
1. Prosecutors file- mostly prepared by the police
2. Advocates file- prepared by the defence counsel
3. Courts file- opened by the court registry
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Prosecutors file
The police file is made up of sub-files as expounded below.
Subfile A - This has the initial report
The complainant/victim/witness makes a report to the Police station. The
report is recorded in the Occurrence Book (OB) the complaint is assigned
to an officer for investigations.
This first report forms the initial report in the police file
Custody Record
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If there is an arrest of a suspect (s), the place of arrest , time, date,
condition of suspect and names of officers who conducted arrest are
recorded in the OB. All reports are marked A(1) A(2) sequentially
Sub-file B. - This contains the Sketch plan and the Documentary exhibits
In the process of investigations exhibits are collected. The documentary
exhibits are official and personal documents and include expert evidence.
The documents vary from case to case.
The exhibits are marked (B) 1 (B) 2 sequentially.
Sub-File C - This contains Experts Report
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Experts reports include, doctors report P3 form, postmortem report,
ballistic report, document examiner, government analyst report and
explosive experts reports. Each report is accompanied by the experts
statement setting out in simple language contents of a report.
They are marked C (1), C (2) etc.
Sub-file D this has the statements of prosecution witnesses
The Investigation officer will interrogate all persons with information
about the crime being investigated. The proposed witnesses will record
statements at the Police station and they will be housed in this sub file.
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The witnesss further statement on identification of the suspect will be
in this file. The ID parade officer will also record the statement and attach
the ID parade form (P156) and place it in this sub file.
Sub-File E- this has the Charge and Cautionary Statements Of Accused
Persons as well as Statement Under Inquiry
The Investigation officer will interrogate the suspect on the alleged
offence any statement made will be kept in this sub-file.
The Charge must be drawn in a particular way and if the police bring the
charge they will produce it in form of a standard charge sheet that all
police have.
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The charge is not standard because every offence that can be charged
is different and there is no template as NO CHARGE is like the other. The
circumstances are different. Particulars are always different. The
requirement for drawing the charge is that one has to be very sure of
what offence has been committed.
When somebody makes a report that an offence has been committed, the
police must look at all the statements from the witnesses and the
complainant. They must then consult the statutes or the penal code to
certify which offence has been committed.
Once the police have determined what offence has been committed then
the rules that will follow is that,
@CMK 2013 115
every offence that is committed must be charged separately]
Counts constitute every individual offence that have been committed in
a single transaction. Depending on the number of offences that have
been identified one uses e.g. Count 1, Count 2 etc. One should never
have counts that are totally unrelated, there must be a nexus.
The Charge will have a statement of offence which will be the Statement
that will tell you what the offence is e.g. Theft contrary to Section 279(b)
of the Penal Code. One has to be careful not to join charges.
The particulars of the offence essentially deal with the circumstances
under which the offence was committed.
@CMK 2013 116
Section 214 of the CPC it states that 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:
This section is to the effect that if it appears to the court that the charge
should be amended, it can move itself and require the prosecutor to
amend the charge. Alternatively the prosecutor can make an application
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to the court to amend the charge. A new charge is brought with red
under-linings to show that it has been amended.
Substitution means that there is a totally different charge.
If in the course of evidence it emerges that other charges that ought to
have been drafted were not drafted the court can direct that the other
charges be drafted, the police will then go and draft and bring a new
charge sheet. Provided where a charge is so altered the court shall call
upon the accused person to plead to the additional or substituted
charges. The court must take a fresh plea giving the accused to admit or
deny.
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Where the charges are altered the accused may demand that the
witnesses or any of them may be recalled and give evidence afresh or be
further be cross-examined by the accused or his advocates.
This means that once a charge is altered or amended the accused is at
liberty to require the witnesses who had already given evidence to be
recalled to either given evidence afresh or to be re-examine.
Sub-File F This includes Investigation Diary
The Investigation officer conducting investigations will interview
witnesses and suspects. He will visit the crime scene, hospitals, mortuary,
offices, prisons, courts and residences.
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The times, dates and places should be clearly indicated and recorded.
The events must be accurate as they occurred.
Sub-File G Contains a Copy of Charge Sheets and Related Documents
Upon completion of investigations, the Investigation officer will prepare
the charges in a charge sheet and place in this file.
Sub-File H -Accused Previous Records and List of Exhibits As Well As List
of Witnesses.
The fingerprint form of the accused will be placed in this sub file.
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The Accused persons record will also be in this file The prisoners
personal effects will be listed in this sub file, documents, watch, wallet
,shoes and money.
Inventory of items recovered from accused or his home or place of arrest
that relate to the case or are deemed to be stolen items will be in this file
so will be the List of the witnesses to testify.
Sub-File I- this contains the Covering Report
This report is by the Officer in charge of investigations giving the
chronology of events and conduct of investigations culminating to the
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decision to charge the suspect and arraign him in court with specific
charges.
The Investigation officer in giving the findings will cross reference with
relevant witness statement and exhibit.
Sub-File J contains the Minute-Sheet
The sub-file contains correspondence between police personnel with
regard to the case. This includes Correspondence between the
Investigation officer & Officer In charge of the Station, State Counsel in
the DPPs office and Advocates.
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Defence File
The defence advocates file contains the following:
Instruction note
This is a note of the exact action required of the advocate, advocates
name, name and address of the person giving instructions and retainer.
Client attendance form:
This form indicates name of client, date of attendance, length of time
spent attending the client/representative and Purpose (s) of attendance.
Court attendance form:
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This contains date of attendance, length of attendance, file
reference, name of client, case number and parties, name of advocate in
attendance, counterpart in attendance, name of judicial officer, purpose
of the court attendance, instructions for the said attendance, what
transpired in court and further instructions as a consequence of the court
attendance.
Charge sheet:
After taking the plea (not guilty), the advocate will be given a copy of the
charge sheet.
Bail/bond documents:
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If the offence is bailable, then the advocates file will have the
necessary copies of documents necessary for the admittance of the client
to bail.
NOTE
These are copies because the originals are deposited in court.
Legal Opinion/Brief;
It is also appropriate for the advocate to render a preliminary legal
opinion to client on the strengths and weaknesses of the case. This may
be important for out of court settlement.
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Witness statements and documentary exhibits:
On attending court, after taking plea, the advocate would ordinarily apply
to court for copies of the statements and exhibits to be relied on during
trial.
Court File
The following are court documents found in the in the Court file;
Charge sheet
Remand Warrant
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Bail/bond documents
Particulars of surety documents
Release order of the Suspect
Court Exhibit list
Court list of witnesses list
High Court orders relating to the case
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Chapter 4
The Trial Process
The trial procedure is conducted in the following stages;
Plea-taking proceedings: Sec. 207 & 208 Criminal Procedure Code.
Hearing: Trial in Magistrates courts: Prosecution, Defense,
Judgment, Pre-sentence proceedings , Sec. 202 -218 CPC
Hearing: Trial in High Court: States Case, Defense, Judgment, Pre-
sentence proceedings Sec. 274- 329 CPC.
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The trial procedure is conducted in the following stages;
Plea-taking proceedings:
S 207 & 208 Criminal Procedure Code
The Plea taking process contains 4 elements;
- Appearance or arraignment in court by the suspect(s)
- Formal statement ( Charge sheet)
- The substance of the charges read to the accused persons
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- Response of the charges by the accused persons are made
Procedure at plea stage
The substance of the charge(s) shall be read to the accused person, by the
court clerk, he shall be asked whether he admits or denies the truth of
the charge.
The plea is read in a language the accused person understands.
Magistrates courts use English or Kiswahili languages. If the accused
person cannot understand either of the 2 languages, an interpreter is
availed by the court. The prosecution will outline the facts surrounding
the offence to the court.
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If the accused person admits the charge(s) the admission shall be
recorded by the court as nearly as possible in the words used by him
A mention and hearing date, bond or bail terms and the trial court to
hear the matter are given by the plea-taking court.
A guilty plea
If the accused person admits the facts that gave rise to the charge
then the court will convict the accused person on the charges
admitted.
The prosecutor informs the court if the accused person is a first
offender or if he has been convicted before.
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The accused person will mitigate; inform the court the
circumstances of the case, his background and any other issue the
court should consider before sentencing.
Then the court will pass sentence.
Interlocutory Matters
These are the preliminary objections and applications.
Any preliminary applications and proceedings made after plea taking and
before the hearing of the case will be recorded in the court file.
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Hearing Process; Trial Court
The case is called out, the accused person (s) names and case
number by the court clerk.
The court prosecutor states the number of witnesses for the case.
Defense counsels introduce themselves and their names placed on
court record.
Essentials of a Fair Trial
The test of a fair trial is not by establishment of truth or success as seen
by victim from conviction of the suspect, or by suspect due to an
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acquittal; but by ensuring that the pre-trial and trial stages are
conducted in compliance with the law irrespective of the outcome.
The accused person is entitled to;
Fair trial within reasonable time
An independent and impartial court
be presumed innocent till proved guilty
tried in his presence.
be informed of the charge(s) in language he understands.
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Be given adequate time, facilities to prepare for defense. The
accused is entitled to copies of witness statements in order to
prepare their defense.
A copy of the judgment
Be tried, convicted and sentenced for an offence written down and
known to law at the time the offense took place
not to be tried twice for the same offence
Public proceedings. Private (in camera) proceedings are only
allowed as per court order or law.
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Witnesses/Victims rights in trial
- Right to protection of the law
- (Witness Protection Act, 2007)
- This involves protection of the witnesses & victims operation by
the Witness Protection Unit in the A.G.s office to deal with;
- protection of witness,
- escort of witnesses to court,
- assessment of threat level,
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- coordination with other security agencies
Examination-In-Chief (Direct Examination)
- The prosecutor outlines the evidence to prove their case through
witnesses and production of exhibits.
- The purpose of the examination is to obtain testimony in support
of the version of facts in issue or relevant to the issue for which
party calling the witness contends.
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Cross Examination
The accused or his representative is then entitled to ask the witness
questions regarding the evidence he/she has given in court.
The purpose of cross-examination is to;
- elicit information concerning facts in issue or relevant to the issue
and is favorable to the party on whose behalf the cross
examination is conducted,
- to cast doubt upon the accuracy of the evidence in chief given
against such party.
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- present the accused persons line of defense
- test the credibility of the witness
Re-Examination
The court prosecutor may ask the witness questions after cross-
examination.
- The questions if asked are to clarify issues brought out during
cross-examination.
- New matters can only be introduced with leave of the court.
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When all the prosecution witnesses have testified, the prosecution
will inform the court that it is the close of the prosecution case.
Closing Submissions
The prosecutor and defense counsel or the accused person will make oral
submissions (Closing Statements) to the court on whether a prima facie
case is established by the prosecution or not.
Submissions contain a summary of the evidence on record, the law that is
relevant to the case, the ingredients of the charge(s)and what each party
prays the court to do.
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- The court will consider the arguments and submissions and
find out if the prosecution has made out a prima facie case against
the accused to require that the accused be put on his defense.
- If such a case is made out, the court will deliver a ruling that the
matter will proceed to defense hearing.
- If the prima facie case is not made out, the court will in its ruling,
dismiss the case and discharge the accused person under section
210 of the Criminal Procedure Code (CPC).
- The determination will be in writing and reasons will be given for
the dismissal and discharge.
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Defence Hearing
- During the defense hearing, the accused person will exercise the
options of giving evidence as prescribed in section 211 CPC.
- The accused person will inform the court the witnesses to be
called to testify on his behalf.
- The witnesses testify using the same procedure as that of
prosecution witnesses.
- The defense counsel will then make final submissions to the court.
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- If the accused person gives a sworn statement and/or the
witnesses testify on oath, and they are cross-examined, the
prosecution will make final submissions.
- The proceedings close and parties await the judgment of the
court.
Judgment
- After, the close of proceedings, the court gives a judgment date or
judgment on notice.
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- On the scheduled date, the judgment is read out by the
magistrate to the accused person and in public in a language
he/she understands.
- The court pronounces the conviction or acquittal under section
215 Criminal Procedure Code.
The court in its decision may;
acquit the accused person(s) on some counts and convict on some of
them,
Acquit on the charges in the charge-sheet and convict on a lesser
charge not in the charge sheet but proved by evidence in court
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Acquit on all counts, the accused person is confirmed innocent
and set free or found guilty on all counts
Convict on all counts in the charge sheet
The courts judgment is read out in open court, in the presence of
the accused persons, lawyers, prosecutors and public.
It is signed and dated by the trial court.
The judgment may contain 2 dates, the day judgment was written
and the day it is delivered.
Accused Persons Record
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- If the court convicts the accused person, the prosecution will
read out the accused persons previous record.
- The record includes previous convictions; the nature, date,
sentence imposed and the date of release from prison. The
accused person will comment by admission or refusal.
- The accused person must know what is alleged against him and
has the opportunity to deny it.
- If he refuses, then evidence is called to confirm the same.
- Fingerprints are taken afresh for examination with stored criminal
cases data at the CID headquarters.
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Mitigation and Victim Impact Statements
- The accused person will mitigate; inform the court any/all issues
the court should take into account during sentencing.
The purpose of mitigation is to enable the accused person show
the court why it ought to impose one form of sentence instead of
another.
The court ought to establish the history, character, antecedents,
circumstances of the offence and all matters relevant before
considering the most appropriate sentence to punishment before
assessing sentence.
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Victim Impact Statements (section 329 (c) CPC) are to enable
the court to receive, upon convicting the offender and before
sentencing, information on the impact of the offence
on the victim and his/her family, where the offence results in
death or actual physical bodily harm.
It is not mandatory, the court receives it where appropriate
The statement maybe made by the primary victim or family victim
Sentencing
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The court will consider the facts from the pre-sentence proceedings
vis--vis the types of punishment in section 24 of the Penal Code and the
principles of sentencing; then write and read the sentence meted out to
the accused person.
Right of Appeal
The convict is entitled in law to contest the decision of the trial court in
the High Court.
The right of appeal within 14 days should be explained to the accused
person immediately after sentence.
Fair Procedures under the Constitution
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While the courts at one time may have been less concerned with
issues such as the circumstances in which evidence was obtained, the
concept of a fair trial, and by extension that fair procedures are adhered
to, form the cornerstone of our new constitutional dispensation. The
constitutional right to fair procedures required adherence to many of the
rules of evidence, including the right to confront and cross-examination.
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A trial is a proceeding in which finding the truth may require an
understanding of institutional practices with which many have little or no
dealing
21

In a criminal trial, the administration of justice according to law means
justice for the People and for the accused, and the admission in evidence

21
Park A Subject Matter Approach to Hearsay Reform (1987) 86 Michigan Law Review
51, 60-61.

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of matters which either side wishes to produce must be decided by the
same principles of law.

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Chapter 5
EVIDENCE
General Principles of Evidence
At a fundamental level, the rules of evidence have the function of
identifying and defining the evidence a court may receive in order to
arrive at the truth of the matter or issue in dispute, whether in a civil or
criminal case.
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The Best Evidence Rule
A central concern of the law of evidence is to ensure that unreliable
categories of evidence are not used to resolve disputes and that the
evidence adduced must be the best evidence available.
The insistence on the production of the best evidence is a way of
preventing the danger of weaker proofs being substituted for stronger
ones. In other words, primary evidence should take preeminence over
secondary evidence.
Not all secondary evidence, however, is necessarily unreliable and there
are a number of qualifications and exceptions to the best evidence rule
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where secondary evidence will suffice, for example where the original
is lost or has been destroyed.
Relevance and exclusionary rules of evidence
Relevance is a principle used to test admissibility in the law of evidence.
Thus, the American writer Thayer stated:
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There is a principle, not so much a rule of evidence as a proposition,
involved in the very conception of a rational system of evidence which
forbids receiving anything irrelevant, not logically probative
22

Relevant and reliable evidence must always be admissible irrespective of
its origin, because the object of a trial is to ascertain the facts in issue and
the evidence tendered assists in the ascertainment of the facts.
Nevertheless, relevance is not an absolute concept and it must take
account of general experience.

22
Thayer A Preliminary Treatise on Evidence at Common Law (1898) 265 at 271.
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NOTE: The issue of relevance as it pertains to the question of
admissibility is more complex than determining whether a particular
piece of evidence should be admitted into the trial provided it is
relevant in a general sense.
Thus, a piece of evidence may be relevant but may not be admitted as
evidence because it does not attain the minimum threshold of cogency
which the law of evidence requires.
23
This is a question of law for a court
(a judge or judges) and the decision is usually made both on determining

23
See Tapper Cross and Tapper on Evidence (9th ed Butterworths, 1999), at 56.
@CMK 2013 157
whether the evidence is relevant and whether it is subject to any
applicable exclusionary rule. Thus, if the evidence cannot be admitted
because of an exclusionary rule, the issue of relevance is of little
consequence as it will not satisfy the condition of legal admissibility.
24

Admissibility
No matter how cogent particular evidence may seem to be, unless it
comes within a class which is admissible, it is excluded.
25
In order to be

24
See Roberts and Zuckerman Criminal Evidence (Oxford University Press 2004) 97.
25
Lord Reid in Myers v DPP [1965] AC 1001, 1024.
@CMK 2013 158
admissible the evidence must be legally relevant and not be subject to
an exclusionary rule.
Further, for evidence to be admissible on the basis of relevance the court
must first be satisfied that
the evidence bears a logical relationship to an issue in the case and,
that in light of the other evidence in the case, it justifies the time and
cost of its reception.
In other words, the evidence must have a probative value related to the
facts at issue. The requirement that the probative value of the evidence
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must relate to an issue before the court is sometimes referred to as
the requirement of materiality.
NOTE
It is not easy in all cases to readily draw the line of legal relevance; for
instance the logical relevance of the evidence must also be balanced
against competing considerations affecting the efficiency and integrity of
the judicial system, but confining the evidence to what is pertinent to the
issue is of great importance, not only as regards the individual case but
also with reference to the expediency of the trial and keeping the focus of
the trial on the issues to be considered.
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NOTE
The concept of fairness ought to be central in relation to the power of a
court to exclude evidence. The question, however, is what fairness
requires and how much weight it should carry in answering questions of
admissibility.
Hearsay
One of the longest established principles of the law of evidence is that, in
order to be admissible, any proposed evidence must be relevant to the
issues being determined in a civil or criminal case; in other words, it must
have what is called probative value, because the purpose of evidence is to
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build up the necessary basis on which to provide proof of the issues in
dispute in a civil or criminal case.
Another key principle is that, in general, evidence should be capable of
being tested in court under oath, notably through cross-examination; so
that if a specific piece of evidence is not capable of being tested in this
way, it is likely to be deemed inadmissible, even if it appears to be
relevant, that is, has probative value.
The law takes the view that truth is best ascertained by the unrehearsed
answers, on oath or affirmation, of witnesses who have actually perceived
the relevant events and who are in the presence of the court. Thus it is
desirable to have a person present in court where his evidence can be
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tested by cross-examination and where his demeanour can be
observed by the trier of fact.
The hearsay rule is an exception to the general principle in the law of
evidence that all relevant evidence is admissible, and it applies to
testimony given by a witness concerning statements spoken or made by a
person who is not produced in court as a witness if the testimony is
presented to prove the truth of the facts which they assert.
In some respects the hearsay rule involves the competing application of
these two principles.
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The hearsay rule is a general rule, subject to many exceptions, that
testimony given by a witness concerning words spoken, statements made
or documents generated by a person who is not produced in court as a
witness is inadmissible if the testimony is presented to prove the truth of
the facts which they assert.
The two main reasons given for this generally exclusionary approach are:
the out-of-court statements cannot be tested by cross-examination and
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they are not made under oath. In other words a witness must be
available in court to be subjected to cross-examination.
26

An example of the application of the hearsay rule would be where a
person wishes to testify in a criminal trial about a statement he overheard
being made by an untraceable person to the effect that the untraceable
person said that she saw the accused fleeing the scene of the crime. If

26
See Morgan Hearsay Dangers and the Application of the Hearsay Concept (1948)
62 Harvard Law Review. 177,

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this testimony is being presented to prove that the statement by the
untraceable person is true, the hearsay rule states that this is inadmissible
as evidence.
27

In addition to this example of the application of the rule to testimony
about verbal out-of-court statements, the hearsay rule also applies to
written out-of-court statements, such as letters or other types of

27
See the discussion of the English case R v Gibson (1887) 18 QBD 537
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documentary records where the originator of the document is not
available to testify in court as to its authenticity.
28

Reliance on the oath
One of the reasons advanced as to why a statement that is hearsay is
deemed to be unreliable is because it is not made on oath in court.
The oath is based on the belief that God would punish a liar. The religious
character of the oath therefore means that it embodies the highest

28
See for example Myers v DPP [1965] AC 1001
@CMK 2013 167
possible security which men in general can give for the truth of their
statements.
29

In more cotemporary terms anyone who lies under oath commits an
offence known as perjury.
Scope of the Hearsay Rule

29
Whitcombe, An Inquiry into Some of the Rules of Evidence Relating to the
Incompetency of Witnesses (London, 1824), 39.

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It is not always easy to draw a distinction between statements that fall
within the ambit of the rule and those that fall outside it. Here are few
examples:
Admissions and confessions
One the most important, and oldest, exceptions to the hearsay rule
concerns admissions and confessions. In a strict sense, the words
admission and confession are slightly different in meaning but the law
relating to their admissibility is the same.
In a criminal trial an admission or confession is regarded with unease
because it often arises during police interrogation. The law therefore has
@CMK 2013 169
developed many specific rules concerning the admissibility of
admissions and confessions.
Assuming compliance with these admissibility rules, the rationale for
allowing the admission of a self-incriminating statement, in terms of being
an inclusionary exception to the hearsay rule, is that it is fairly presumed
that no man would make such a confession against himself if the facts
confessed were not true
30


30
See Grose J in R v Lambe (1791) 2 Leach 552, at 555

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Spontaneous statements connected with the subject matter of the
case (the res gestae rule)
The phrase res gestae (literally, things done) refers to the inclusionary
exception by which a party is allowed to admit evidence which consists of,
among other things, everything that is said and done in the course of an
incident or transaction that is the subject of a civil or criminal trial. The
res gestae exception is based on the view that, because certain
statements are made spontaneously in the course of an event, they carry
a high degree of credibility.
Lord Normand in the UK Privy Council case Teper v R [1952] AC 480, at
486-487 had the following to say in regard to the issue:
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The rule against the admission of hearsay evidence is fundamental...
Nevertheless, the rule admits of certain carefully safeguarded and limited
exceptions, one of which is that words may be proved when they form
part of the res gestae It appears to rest ultimately on two propositions,
that human utterance is both a fact and a means of communication, and
that human action may be so interwoven with words that the significance
of the action cannot be understood without the correlative words, and
the dissociation of the words from the action would impede the discovery
of truth. But the judicial applications of these two propositions, which do
not always combine harmoniously, have never been precisely formulated
in a general principle. it is essential that the words sought to be proved
by hearsay should be, if not absolutely contemporaneous with the action
@CMK 2013 172
or event, at least so clearly associated with it, in time, place and
circumstances, that they are part of the thing being done, and so an item
or part of real evidence and not merely a reported statement.
Despite its long-established position in the law of evidence, the res gestae
inclusionary exception has attracted some criticism. In the English case
Holmes v Newman [1931] 2 Ch 112 the phrase res gestae was criticised
because it provides a respectable legal cloak for a variety of cases to
which no formulae of precision can be applied.
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Likewise, in R v Ratten [1972] AC 378 it was said that the expression
res gestae is often used to cover situations that have been insufficiently
analysed.
31

Dying Declarations
A dying declaration, made with the knowledge of the imminence of
death, is another important inclusionary exception because it may be
admitted to prove the circumstances in which the death occurred.
Traditionally, the dying declaration inclusionary exception has never been

31
See Cowen and Carter Essays on the Law of Evidence (1956) 4.
@CMK 2013 174
applied to civil claims; and, in criminal proceedings, it only applies to
charges of murder and manslaughter.
The rule has its origins In the English case R v Woodcock, (1789) 168 ER
352 where the defendant had been charged with murder. The victim had
been badly beaten and, two days prior to her death, which occurred from
the beating, she told a magistrate that her husband, the defendant, was
the perpetrator. The trial court, faced with the difficulty that hearsay was
available but the witness was not, surmounted this by developing the
dying declaration exception to the hearsay rule. The Court stated:
[T]he general principle on which this species of evidence is admitted is
that they are declarations made in extremity, when the party is at the
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point of death, and when every hope of this world is gone; when every
motive to falsehood is silenced, and the mind is induced by the most
powerful considerations to speak the truth; a situation so solemn, and so
awful, is considered by the law as creating an obligation equal to that
which is created by a positive oath administered in a Court of Justice.
Certain statements of persons now deceased
The common law also relaxed the hearsay rule for certain prior
statements of persons who had died by the time civil or criminal
proceedings came to trial. There is no general test for admitting the
hearsay statements of persons now deceased. Instead exceptions
@CMK 2013 176
developed on an ad hoc basis and were confined to specific situations.
These are:
Declarations by deceased persons against a pecuniary or
proprietary interest,
Written declarations by the deceased in the course of duty,
Declarations by a deceased person relating to pedigree (in effect,
blood relationships),
Declarations by a deceased person explaining the contents of his
or her will.
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Public documents
This exception is clearly based on both reliability and convenience. The
exception applies to a document that is made by a public officer for the
purpose of the public making use of it and being able to refer to it.
The following passage from the judgment of UK House of Lord by Lord
Blackburn has often been cited with approval:
I do not think that public there is to be taken in the sense of meaning
the whole world... an entry probably in a corporation book concerning a
corporate matter, or something in which all the corporation is concerned,
would be public within that sense. But it must be a public document, and
@CMK 2013 178
it must be made by a public officer. I understand a public document
there to mean a document that is made for the purpose of the public
making use of it, and being able to refer to it.
32

Typical examples include certificates of birth, marriages and death and
ordnance survey maps. It is likely that the public official who made the
original entries in question may be dead, unavailable or unable to
remember the facts recorded in a later court hearing, so it is clear that
the rule was developed primarily on the basis of convenience.

32
Sturla v Freccia (1880) 5 App Cas 623
@CMK 2013 179
Equally, such documents can be presumed reliable, but of course it
remains possible for parties to challenge the facts contained in them.
Testimony in Former Proceedings
A statement made by a person while giving evidence, whether orally or by
affidavit, is admissible in subsequent proceedings, between the same
parties concerning the same (or substantially same) subject matter if the
witness is unavailable to give evidence.
This constitutes an exception to the hearsay rule because the
circumstances in which the statement was made address the concerns
underlying the hearsay rule, the statement was made under oath and the
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party against whom the statement was made had an opportunity to
cross-examine the witness.
The requirement of unavailability is met if the witness is dead, is too ill to
attend court, has been prevented from attending by the party against
whom the evidence is to be admitted, is outside of the jurisdiction or
cannot be located following intensive enquires.
Privileged information
Under Section 130 of Evidence Act No person shall be compelled to
disclose any communication made to him or her during marriage, by the
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other spouse; nor shall a person be permitted to disclose such
communication without the consent of the person who made it.
Under section 132 No public officer shall be compelled to disclose
communications made by any person to him in the course of his duty,
when he considers that the public interest would suffer by the disclosure.
Under section 134 No advocate shall at any time be permitted unless with
his clients express consent, to disclose any communication made to him
in the course and for the purpose of his employment as such advocate, by
or on behalf of his client, or to state the contents or condition of any
document with which he has become acquainted in the course and for
the purpose of his professional employment, or to disclose any advice
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given by him to his client in the course and for the purpose of such
employment:
NOTE
Advocate-client privilege does not extend to
any communication made in furtherance of any illegal purpose
Any fact observed by any advocate in the course of his
employment as such, showing that any crime or fraud has been
committed since the commencement of his employment, whether
the attention of such advocate was or was not directed to the fact
by or on behalf of his client.
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The privilege continues after the employment of the advocate has
ceased.
The privilege extends to interpreters, and the clerks or servants of
advocates.
Cross -examination
Cross-examination has been described as the most effective method for
testing a witnesss evidence.
33
On his part Wigmore wrote:

33
See Zuckerman The Principles of Criminal Evidence (Oxford University Press 1989) at 93.
@CMK 2013 184
Cross-examination is greatest legal engine ever invented for the
discovery of truth
34

The right of the accused in a criminal trial to cross-examine witnesses is,
today, an internationally recognised fundamental right. Our constitution
specifically guarantees the right of the accused to challenge evidence.
Purpose of cross-examination

34
Wigmore Evidence in Trials at Common Law (3rd ed Little Brown & Co., 1974).

@CMK 2013 185
to test his accuracy, veracity or credibility of the witness.
to discover who the witness is and what is his position in life;
to shake the witnesss credit, by injuring his character. However, a
person asking character questions must have reasonable grounds
for thinking that the imputation which it conveys is well founded.
By revealing inconsistencies and highlighting errors cross-examination,
could assist in identifying dishonest witnesses. Nonetheless, one should
note that the witness may be an honest one and is making inaccurate
statements in response to suggestive leading questions, the stress of the
courtroom scenario or for many other reasons.
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NOTE
The court will forbid any question which appears to it to be intended to
insult or annoy, or which, though proper in itself, appears to the court
needlessly offensive in form. (Sec 160 EA)
Evidence of bad character
In criminal proceedings the fact that the accused person has committed
or been convicted of or charged with any offence other than that with
which he is then charged, or is of bad character, is inadmissible unless:
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such evidence is otherwise admissible as evidence of a fact in
issue or is directly relevant to a fact in issue; or
the proof that he has committed or been convicted of such other
offence is admissible under section 14 or section 15 of this Act to
show that he is guilty of the offence with which he is then
charged; or
he has personally or by his advocate asked questions of a witness
for the prosecution with a view to establishing his own character,
or has given evidence of his own good character; or
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the nature or conduct of the defence is such as to involve
imputations on the character of the complainant or of a witness
for the prosecution; or
he has given evidence against any other person charged with the
same offence:
NOTE
Evidence of previous conviction for an offence may be given in a criminal
trial after conviction of the accused person, for the purpose of affecting
the sentence to be awarded by the court
Leading question
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A leading question is any question which suggests the answer which
the person putting it wishes or expects to receive, or suggests a disputed
fact as to which the witness is to testify.
Leading questions must not, if objected to by the adverse party, be asked
in an examination-in-chief or in a re-examination, except with the
permission of the court.
Under Section 151 of Evidence Act Leading questions may be asked in
cross-examination.
Role of Advocates in criminal matters
@CMK 2013 190
The facts of a case exist in jumbled pieces: in the memories of
witnesses, buried in documents and reflected in physical exhibits.
The legal practitioner must make sense of these pieces of facts by
conceptualizing the theme of the case, determining what facts will
form evidence in court, plan the presentation and effectively
communicate the clients story.
The Advocate and the Prosecutor are central figures to the trial, they each
have to communicate their side of the story to the Court for
determination.
@CMK 2013 191
References
Ashworth Principles of the Criminal Law 5th ed (Oxford University
Press, 2006)
Choo The Notion of Relevance and Defence Evidence [1993] Crim
LR 114.
Choo Hearsay and Confrontation in Criminal Trials (Clarendon
Press Oxford, 1996)
Coss The Defence of Provocation: An Acrimonious Divorce from
Reality (2006- 2007) 18 Current Issues in Criminal Justice 51, at 52
Duff The Demise of Kearley A Hearsay Problem Solved?
(2005) International Commentary on Evidence (2) 1.
Guest Hearsay Revisited (1988) Current Legal Problems 33.
Herring Criminal Law (Palgrave Macmillan Law Masters 2005) at 3
Horder Provocation and Responsibility (Clarendon Press 1992).
Keane The Modern Law of Evidence (5th ed., Butterworths, 2000).
Langbein ,The Criminal Trial before the Lawyers (1978) 45 U. Chi.
L. Rev. 263, 302.
Lantham Killing the Fleeing Offender [1977] 1 Crim LJ 16 at 17-
18.
McAuley & McCutcheon Criminal Liability (Roundhall Sweet &
Maxwell, 2000).
@CMK 2013 192
McEwan Evidence and the Adversarial Process - The Modern
Law (1998) 36-37.
Morgan, Hearsay Dangers and the Application of the Hearsay
Concept (1948) 62 Harvard Law Review. 177,
OMalley, Sentencing Law and Practice 2nd ed (Round Hall Sweet
& Maxwell, 2006)
Osbourne Hearsay and the European Court of Human Rights
(1993) Crim LR 255, at 259.
Paul Roberts, "Double Jeopardy Law Reform: A Criminal Justice
Commentary" (2002) 65 MLR 393 at 397-405.
Power Provocation and Culture (2006) Criminal Law Review 871,
at 877
Reed Evidentiary Failures: A Structural Theory of Evidence Applied
to Hearsay Issues (1994) 18 American Journal of Trial Advocacy
353, at 371.
Robinson Criminal Law Defenses: A Systematic Analysis (1982)
Columbia Law Rev, Vol.82 (2):199 -291 at 203.
Tapper Cross and Tapper on Evidence (8th ed Butterworths, 1995),
at 566.
The Presumption of Innocence in English Criminal Law [1996]
Crim LR 306, 309
Turner Kennys Outlines of Criminal Law (Cambridge University
Press, 19th ed, 1966) at 499.
@CMK 2013 193
Wigmore The History of the Hearsay Rule (1904) 17
Harvard Law Review 437, 440.
Williams The Proof of Guilt: A Study of the English Criminal Trial
(3rd ed 1963) at 207.
Zuckerman, Relevance in Legal Proceedings in Twining (ed) Facts
in Law (1993).














@CMK 2013 194
To the Law Student
In your revision you do not need to re-read your textbooks extensively.
Re-reading should be kept to a minimum. This is why a set of well-kept
notes is so useful: instead of having to cover hundreds of pages of text
you should have an outline How to Study, Harry Maddox.
The Quick Law Series is precisely designed to make your revision fun
and most importantly effective. It presents the essentials of law in clear,
simple language.
In addition, even though the booklet is an indispensable revision
companion, it is best used as a guide or a catapult to further research. A
caveat is in order, under no circumstances should the booklet be a
replacement for through reading of the primary materials.
To the general Citizen
This booklet will go a long way towards educating you on the
mysterious process that the lawyers call criminal litigation. You will be
well advised to invest on it. However, a note of warning is in order, the
booklet is not designed to replace the services of the advocate.
There are many intricacies in law, which only a learned friend can safely
negotiate. Think of this booklet as a roadmap, it can give you the general
direction to your destination, but it will not make you an expert driver.
Charles Mwaura Kamau
LLB (Hons)(UK), LLM (Law and Corporate Governance) (UK), Dip.KSL,
Advocate of the High Court of Kenya and Lecturer of Law based in the
UK.



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