Académique Documents
Professionnel Documents
Culture Documents
A HANDBOOK ON
CRIMINAL PROCEDURE
IN KENYA
P. L. O. LUMUMBA Ph. D
Page 1 of 382
Page 2 of 382
CONTENTS
Foreword .........................................................................................
xii
Acknowledgement ..................................................................................
xiii
xix
Acronyms .................................................................................................
xx
xxi
A. Introduction ..................................................................................
12
A. Introduction.....................................................................................
12
B. Nolle Prosequi.................................................................................
12
C. Withdrawal ......................................................................................
15
16
A. Introduction ....................................................................................
16
17
17
19
20
Page 3 of 382
20
D. Others ..............................................................................................
22
E. Conclusion .....................................................................................
23
24
24
27
D. Conclusion
29
CHAPTER V: Bail . .
A. Introduction..
31
B. Bail in Kenya
32
37
38
E. Pre-Trial Bail
40
46
G. Sureties
53
H. Bail Bond .
56
58
60
62
L. Suggested Reforms .
63
64
Page 4 of 382
70
A.
Introduction ..
70
B.
Charges .
70
C.
71
D.
74
E.
76
F.
General form .
79
G.
Joinder of Counts ..
81
H.
Joinder of persons ..
84
I.
Duplicity
87
J.
Alternative Charges
92
K.
Amendment of Charges ..
93
L.
95
M.
Quashing of information
95
N.
Conclusion
96
98
A.
Introduction.
98
B.
99
C.
Recording of pleas.
99
D.
102
E.
102
F.
Plea bargaining
104
Page 5 of 382
105
A.
Introduction 105
B.
C.
i)
ii)
iii)
113
A.
Introduction..
113
B.
114
C.
Effects of transfer.
117
131
A.
Introduction
B.
C.
D.
131
i)
Plea of guilt.
139
ii)
140
iii)
iv)
v)
Demurrer
vi)
Autrefois Convict..143
vii)
Autrefois Acquit.
143
viii)
Pardon.
144
E.
142
144
F.
148
G.
148
H.
149
I.
Summing up to Assessors..
159
J.
161
K.
165
L.
Conclusion..
165
A.
Introduction.. 166
B.
C.
D.
E.
F.
A.
Introduction ..
B.
187
188
C.
D.
E.
F.
G.
204
H.
I.
Guilty
but
insane
Insanity?..
or
Not
guilty
on
Account
206
J.
K.
215
A. Introduction. 215
B. Delivery... 215
C. Form and Content 218
D. Minor and Cognate Offences..
219
E. Order of Judgment
222
F. Conclusion..
222
of
ii)
Imprisonment 229
iii)
iv)
v)
Fines. 231
vi)
Forfeiture.. 233
vii)
Compensation 234
viii)
ix)
x)
Probation 236
xi)
xii)
xiii)
Settlements. 238
xiv)
xv)
E.
241
F.
Compensation: Revisited.
242
G.
Restitution.. 243
H.
Costs.
I.
J.
K.
Sentencing in Kenya...
L.
M.
N.
Committals 254
Page 9 of 382
247
244
258
D.
259
E.
Purpose of Punishment..
260
F.
Liability.
261
i) Wards of Court..
263
263
H.
I.
E.
269
F.
272
G.
273
H.
276
I.
276
J.
K.
Conclusion... 279
Introduction 282
B.
C.
Habeas Corpus...
284
D.
287
A.
Introduction. 288
B.
C.
D.
288
299
A.
Introduction.. 305
B.
A.
Introduction. 313
B.
Inquest Jurisdiction.
C.
Page 11 of 382
314
313
305
313
FOREWORD
Law students, practitioners, judicial officers and academics will breathe a sigh
of relief as they can now resort to a comprehensive hand book on Criminal
Procedure for quick reference. The book is written in simple language which
affords a comprehensive treatment of the subject. The book is made rich
because it incorporates the most recent unreported decisions of the Court of
Appeal and the High Court of Kenya, most of which may not be easily available
to the reader due to the haphazard and unsystematic law reporting system
currently prevailing in the country. The book also affords quick and precise
comparison of the subject with the English and the American systems where
appropriate.
The author of the book has done service to the development of the law in
Kenya, not only in devoting time to the writing and compilation of a much
needed book, but the admirable and reliable treatment of the subject of the
Criminal Procedure based on the latest decisions of the Highest Court in the
land. The author must also be commended for ensuring the book is available at
the shelves at such a reasonable cost to the reader.
PAUL M. WAMBUA
ADVOCATE & LECTURER AT
THE KENYA SCHOOL OF LAW
Page 12 of 382
INTRODUCTION
This book is written for Law Students, Practitioners, Judicial Officers and
Academics. It is written as a Handbook to be resorted to for quick reference. At
the same time, it provides comprehensive treatment of the subject.
The book covers most of the key areas of Criminal Procedure that interest
the Student, the Practitioner, the Magistrate, the Judge and the Academic. There
are a number of chapters that puritanical students of procedure may consider out
of place but are rendered here owing to their close nexus with procedure in a
manner that underscores the often quoted statement, Procedure is the
handmaiden of Substance. The chapters in the category include those of
Criminal prosecutions, Methods of Controlling Prosecution, Contempt of Court
Proceedings, Directions in the nature of habeas corpus and inquiries as to
sudden deaths.
Elucidation, analysis and exposition of basic requirements of procedure
and aspects of criminal law, criminology and penology that are germane have
been employed and dovetailed to help deal with Kenyan Criminal Procedure. In
cases where the use of comparative jurisprudence is deemed necessary reference
has been made to principles of English and American Law. Reference has also
been made to the decisions of the former East African Court of Appeal arising
from Uganda and Tanzania under the 'pari materia' rule. Heavy reliance has
been placed on judgements of the Court of Appeal and the High Court. Owing
to the absence of systematic and sustained law reporting most recent cases that
are used are un reported.
Decisions of the superior courts of Common Law Countries like the
United States of America and England have been used in spite of their little
precedential value, a number of decisions by magistrates have also been referred
to where there is paucity of other judicial opinion. Extensive reliance has been
placed on the Constitution and a number of statutes principally the Criminal
Procedure Code (Cap. 75), The Penal Code (Cap. 63), the Evidence Act (Cap.
Page 13 of 382
80) and the Traffic Act (Cap. 403). Being a Legal Practitioner and a teacher, the
author has made certain observations and rendered opinion informed by these
experiences but germane to the discourse in this book.
This book is divided into Twenty one Chapters arranged deliberately into
sub-topics for ease of reference and reading. To enhance clarity most chapters
commence with an introduction some of which take a historical bent.
To enhance the reading of this book it is necessary to outline the basic
contents of each of the Twenty One chapters.
Chapter 1 deals with the general nature of Criminal Prosecutions. There is
mention of the Attorney-Generals constitutional position vis-a-vis prosecutions.
There is equally an elaborate discussion on private prosecution.
Chapter 2 deals with the subject of control of prosecutions. These are
basically through, a Nolle Prosequi and Withdrawal.
Chapter 3 covers arrest. The requisites for a valid arrest are given. Since
arrests can be with or without a warrant, the circumstances under which the
same can be effected and discussed. The chapter also identifies those who are
legally mandated to effect arrest.
Chapter 4 deals with searches and search warrants. Of special, interest are
searches without warrants and searches with warrants.
Chapter 5 examines the subject of bail. After giving a brief historical
account of the development of the subject, bail in Kenya is examined
extensively. There is a discussion of both pretrial bail and bail pending appeal
and the factors to be considered in each case. It is also noted that there is a
variance between law and practice and reforms are suggested. The Chapter then
concludes by looking at bail as viewed by the Courts.
Chapter 6 deals with charges and information. It analyses such aspects of
a charge, like contents of a charge, the effect of citing wrong or non-existent
sections of the law, and rules regarding the framing of dirges.
Chapter 7 is on pleas. It examines the importance of and the procedure of
Page 14 of 382
taking and recording pleas in the subordinate, courts. The pleas of' autrefois
acquit', 'autrefois convict' and pardon are discussed. Change of plea and its
effects is examined as well as the concept of plea bargaining.
Chapter 8 is on trial procedure in the subordinate courts. It gives the
structure of the court system in Kenya and the jurisdiction of Criminal courts.
The trial procedure is examined in detail from the prosecution case, a finding of
prima facie case upto the defence case.
Chapter 9 deals with transfer of cases. It examines factors giving rise to a
transfer and the factors that the High Court takes into cognisance before
effecting a transfer. It concludes by giving the effects of a transfer.
Chapter 13 is on judgments. It highlights the subtleties of a judgment delivery, form and content.
Chapter 20 covers retrial and addresses instances and reasons for which a
retrial may be ordered.
Chapter 21 examines enquiries in cases of sudden deaths.
Page 16 of 382
DEDICATION
Dedicated to my uncles M. T. Onono and Dr. W. E. Onyango whose generosity
in adversity set me on the path of knowledge.
Page 17 of 382
TABLE OF STATUTES
1.
14 .........................................................................................
261
26 .........................................................................................
3,4
26(3) ......................................................................................
12
27 .........................................................................................
144
60(1) ......................................................................................
37
65(1) ......................................................................................
1Q5
67 ..........................................................................................
105
72 .........................................................................................
32,33
72(1) ......................................................................................
213
72(3)(b) .................................................................................
33
72(5) ......................................................................................
36,37
77(1).......................................................................................
8,188
81(1) ......................................................................................
10,36
123 ........................................................................................
36
21& 24 ................................................................................
16
22 ........................................................................................ -
27
26 ..........................................................................................
27
29 ..........................................................................................
18
34(1) .....................................................................................
20
36 ..........................................................................................
56,63
38 ..........................................................................................
19
42 ..........................................................................................
19
78...........................................................................................
1H
H3
Page 18 of 382
82 ..........................................................................................
Page 19 of 382
83 .........................................................................................; 14
87 ..........................................................................................
143
88 ..........................................................................................
88(1) ......................................................................................
37
88(1.3) ...................................................................................
134
88&89 ...................................................................................
89 ..........................................................................................
34
89(1)..70
s 99 ............................................................................................. 148
s 102 .......................................................................................... 21
s 105 ........................................................................................... 21
s 120 ........................................................................................... 24
s 123 ........................................................................................... 54,64
s 123(1) ....................................................................................... 34,36
s 125 ...................................................................................... . 56
s 130(1) .................................................................................. 65
s 131(1) .................................................................................. 65
s 135(1) .................................................................................. 82,133
s 135(2) .................................................................................. 91
s 136 ...................................................................................... 84
s 137 ...................................................................................... 79
s 162 ...................................................................................... 193
s 162-167 ............................................................................. 188
s 162 & 280 .......................................................................... 190
s 166 ...................................................................................... 190
s 167 ...................................................................................... 146
s 168 ...................................................................................... 215,222
s 169 ...................................................................................... 218,311
s 170 ....................................................................................... 218,222
Page 20 of 382
Page 21 of 382
s 179 ...............................................................
219,221
s 181 ...............................................................
221,222
s 193 ..............................................................
149
s 201 ..............................................................
161
s 207 .............................................................
108
s 207(1) ..........................................................
188
s 211 ................................................................
111
s 214 ...............................................................
137
s 219 ...............................................................
s 220 ..............................................................
124,131
s 221 ..............................................................
254
s 230 ..............................................................
131
s 231 ..............................................................
136
s 230(b) ..........................................................
131
s 233 ..............................................................
132
s 234 ..............................................................
131
s 230-249 .....................................................
119
s 235 ..............................................................
153
s 253 ..............................................................
134
s 261 .............................................;................
181
s 262 ..............................................................
170
s 263 ..............................................................
173
176
s 274 ..............................................................
136
s 276 ..............................................................
96
s 279(2) ..........................................................
220
s 279(a) ..........................................................
143
(b) ........................................................
s 280 ..............................................................
Page 22 of 382
143
144,189
s 283 ..............................................................
149
s 298(1) ..........................................................
165
s 300 ..............................................................
149
Page 23 of 382
s 305(1) ..........................................................
298
s 322 ..............................................................
160,171
s 322(1) ..........................................................
159
s 330 ..............................................................
165
s 335 ..............................................................
234
s 336 ...............................................................
235
s 343-345 .......................................................
237
s 345 ..............................................................
238
s 346 ..............................................................
89
s 347 ..............................................................
74
s 348 .........................................;....................
48
s 348(a) ..........................................................
4,267
s 349 ..............................................................
268
s 352 ..............................................................
269
s 352(2) ..........................................................
270
s 352(a) ..........................................................
272
s 354(3) ..........................................................
252
288
s 357 ..............................................................
48,51,275
s 358 ..............................................................
277
s 359 ..............................................................
277
286
s 361(1) ..........................................................
(1)&(7) ................................................
s 362 ...............................................................
7
288,295
295,296
s 364(2) ..........................................................
289
s 364(5) ..........................................................
289,299
Page 24 of 382
302
s 379 ..............................................................
147
Page 25 of 382
s 385-388 ............................................................................
3L3
s 389 ...................................................................................
282
s 389(1) ...............................................................................
284,286
(2) ..............................................................................
287
56
237
244,310
18
141, 212
s 14(1) .................................................................................
142
s 15 ......................................................................................
142
s 21 ......................................................................................
250
s 24 ......................................................................................
229
s 27(3) .................................................................................
245
s 31 ......................................................................................
234
s 35 .....................................................................................
295
s 58 ......................................................................................
141
s 121 ....................................................................................
257
s 121(1) ...............................................................................
257
s 129(a) ...............................................................................
80
s 228 ..................................................................................
191
s 243(b) ...............................................................................
221
Page 26 of 382
s 246 ...................................................................................109
s 251 ....................................................................................
239
s 275 ...................................................................................93
s 279 .........................................................................................
255
s 279(c) ..................................................................................... 52
s 280,281,282 or 283 ..............................................................
80
s 296 .........................................................................................
247
s 304 .........................................;...............................................
96
s 306(a) ..................................................................................
91, 256
s 322 .........................................................................................
93
s 323 .........................................................................................
27,29
s 367(e) ..................................................................................... 75
s 367(e)&(a) ...........................................................................
75
294
s 389 .........................................................................................
76
142
s 11 ...........................................................................................
276
161
214
Page 28 of 382
246
18
22, 141
Page 29 of 382
141
ACRONYMS
Kenya Evidence Act.
Criminal Procedure Code.
All England Reports.
Israel Law Reports.
East African Law Reports.
Kenya Law Reports.
Miscellaneous Application
Kenya High Court Decisions.
Court of Appeal Reports.
Uganda Law Reports.
India Law Reports.
Australia Law Reports.
West African Court of Appeal.
Tanzania Law Reports.
Ireland Reports.
Criminal Law Review
Criminal Application
Queen's Bench Division
Legal Notice
Master of the Rolls
Chief Justice
Penal Code
Chapter
Modern Law Review
Criminal Application
High Court of Tanzania
Attorney-General
Page 30 of 382
TABLE OF CASES
A.G-vs-Marakaru(1960)EA 484 .......................................................
265
306
94
179
50
181
101
89
254
233
235
308
108,148
221
286
175
159,178
282,287
269,271
23
162
94
179
265
Page 32 of 382
199
101
231
91
Christopher Omufira Akwabi -vs- R Cr. App. No. 131 of 1989 ......
80,97
53
99
312
166
266
273
184
215
Eliud Mwaura -vs- R Crim. App. No. 446-of 1986 ..................... 38,39
Eneriko Lutalo -vs- R (1966)EA 328 .....................................
216
45
3Q6
285
5,135
50
Page 34 of 382
113 116
Jones -vs- National Coal Board (1957)2 All E.R. ..................... 152
Jopley Constantine Oyieng' -vs- R - Criminal Appeal No. 45
of 1988 ................................................................................
258
245
84
272
56
192
270
132
237
Kimani & Maina -vs- Nathan Kahara H.C.C (Misc) App. No. 11
of 1988 ................................................................................
135
King Emperor -vs- Tramal Reddi (1901) ILR 24 Madras 523 ........163 167
Kinyori s/o Kiraditu -vs- R (1956) EACA 480 .......................
151
40
Page 36 of 382
19
290 292
272
134
286
180
161
165,179
246
270
132
132
163,182
57
247, 269
36
47
103
112
309
297
310
48, 51
160
243
20, 33
101
51
.. 292, 293
Page 37 of 382
279
232
164
233
232
275
133
251
185
75
16
85
294
109
71
78
153
46
92
153
164
42
53
278
R -vs- Grays Justices, Ex parte Graham (1982) 3 All E.R 635 ........
41
41
43
45
54
54
R -vs- Gajjan Singh & Others (1947)14 EACA 111 (P.42) ............
55
58
84
86
87
87
88
91
95
96
135
137
137
283
163
176
130
144
143
143
147
148
176
193
193
194
132
133
183
194
195
195
195
232
{97
197
197
152
193
199
204
205
200
299
202
291
154
750 757
261
22
49
103
191
249
274
250
178,181
134
150
R-vs-Eric Kotut & 5 Others Private Prosecution case No. 1 of 1994 ...6
R-vs-The Chairman of London Sessions Ex-parteDownes(1954)lQBI ... 96
R -vs- Abdaka Mali (1921) 3 ULR .................................................
R -vs- Odera (1973)EA 392 .....................................................
171
238
170
175
47,4.9
181
222,311
Raila Odinga -vs- George Saitoti & Others Misc. App. No. 31 of 1995 .6
Re Castings (1958)42 Cr. App. Rep. .............................................
217
37
219
43
3Q6
103,301
47
132
250
13
104
275
47
134
292
53
73
Page 44 of 382
310
........
77
133
220,221
75
14
159
59
83 284
775
779
133
75
95
Page 45 of 382
73
CHAPTER ONE
A. INTRODUCTION
victims of the crime. The State, on the other hand, is usually the complainant
and the prosecutor. Since it is the state which through its legislative arm enacts
laws, breach of such laws by any criminal activity is in direct conflict with the
interests of the state. Thus, as the custodian of the legal and administrative
order, the state becomes a complainant when her laws are breached.
(a)
(b)
to take over and continue any such criminal proceedings that have
been instituted or undertaken by himself or another person or
authority and
(c)
Page 47 of 382
The foregoing provision underscores that under Kenyan law it is the State,
through the Attorney-General, which is bestowed with the power of controlling
criminal prosecutions. This was the position of the court of Appeal of Kenya in
the case of Jopley Constantine Oyieng' -v- Republic2 wherein the court
observed:-
"... in the instant case, the appellant was pursuing a right to file
a private prosecution. Only the Attorney-General has the right
under section 26 of the Constitution to institute criminal
proceeding's. No similar right is extended to a private
individual and it is obvious that section 88(1) of the Criminal
Procedure Code does not override section 26 of the
constitution...3
The state is therefore the prosecutor in all criminal prosecutions4. That
power of the state to control all criminal proceedings subsists whether the
proceedings have been initiated by a complaint and the prosecution conducted
by a private individual under the provisions of section 895 of the Criminal
Procedure Code.
The problem of who has the right to prosecute is even more pronounced
in respect of appeals. On the one hand section 348(a) provides that;
The State's constitutional and legal rights over criminal prosecutions are
not exclusive. A private individual other than the Attorney-General may also
institute criminal proceedings if he/she has reason and probable cause to believe
that an offence has been committed. This right is recognised under section 26(3)
(b) of the Constitution which also empowers the Attorney-General to take over
and continue any such criminal proceedings that have been instituted or
undertaken by another person or authority.
6
7
8
Supra, note 1.
(1978) KLR 1978.
Criminal Appeal No. 925 of 1979, High Court, Nairobi (unreported).
Page 49 of 382
Section 89 of the Criminal Procedure Code confers the right to institute criminal
proceedings on any person by means of complaint to a Magistrate, and section
88 confers the right to any person to conduct the prosecution subject to the
permission of "any Magistrate trying the case". The right to private prosecution
has been said to be "a useful constitutional safeguard against capricious, corrupt
or biased failure or refusal of police forces and the office of Director of public
prosecutions to prosecute offenders against the criminal law9".
A private individual who wishes to institute a private prosecution must
first make a complaint to the Magistrate after which the Magistrate may upon
being satisfied grant permission for private prosecution. But there are conditions
which a private prosecutor must fulfil before the Magistrate grants the
permission. Such conditions were stated, by the High Court of Kenya in the
case of Richard Kimani & M. Maina -vs- Nathan Kahara10 thus:"When an application is made under section 88 to conduct a prosecution,
we think that the Magistrate should question the applicant to ascertain whether
a report has been made to the Attorney-General or to the police and with what
result. The Magistrate should also ask himself how is the complainant involved?
What is his LOCUS STANDI? Has he personally suffered injury or damage or
is he motivated by malice, or political considerations?".
Thus in granting permission for a private prosecution, the discretion of the
Magistrate must be exercised judicially, sparingly and only on extremely good
grounds. This is to avoid misuse of the right to private prosecution for personal
vendetta and vengeful intentions. The Court further emphasised the importance
of private prosecution by stating:-
9
10
Since there are certain conditions which the Magistrate must consider
before granting or refusing permission for private prosecution, one would
assume that without the Magistrate's permission any prosecution or purported
prosecution by a private individual is a nullity. This issue was raised in the case
of The Republic, through Devji Kanji -v- Davendra Valji Halai.13 In that case,
the appellant brought a private prosecution in the Senior Resident Magistrate's
Court, Nairobi, against the respondent. Both parties were represented by
counsel and, at the close of the prosecution case, counsel for the respondent
took the objection that the private prosecutor had not obtained permission from
the court to prosecute the case, as required by section 88(1) of the Criminal
Procedure Code. The Senior Resident Magistrate upheld the objection, and held
the proceedings to be a nullity. He was upheld by the High Court (Sachdeva, J.)
exercising revisionary jurisdiction which had been invoked. The appellant
appealed against the High Court decision and it was held that where all persons
concerned are aware that a private prosecution and the parties are represented
by counsel, if no objection is raised to the absence of formal permission from
11
12
13
Ibid
See decisions in the unreported cases of Raila Odinga v Prof. George Saitoti & Others. Misc.
Application No. 31 of 1995; Kamlesh Mansukhlal Pattni v Republic. Criminal Appeal No. 88 of 1995;
R (Through Joseph Kairu Mbugua & 2 others) v William Rongurwa Ole Ntimama, Private Prosecution
Case No. 13 of 1995.
R (Through Afro Travels Ltd) v A. K. Holdings Ltd, Trust Bank. Ltd, Ajay Shah , Criminal Revision
Case No. 56 of 1995. . R v Eric Arap Kotut & 5 Others Private Prosecution No. 1 of 1994,
Republic (through James Orengo & 7 others) v Rashid Sajjad & 4 others. Misc. Appl. No. 37 of 1997
(28/8/1997)
Republic (through James Orengo) vs Rashid Sajjad & 13 others, Misc. Appl. No. 41 of 1997 (22/9/97)
[1978] KLR 178
Page 51 of 382
In addition, the Criminal Law Amendment Act of 2003 has made a provision in
the Criminal Procedure Code for power of courts to order for costs against a
private prosecutor under section 171 (1) Criminal Law Amendment.
Page 52 of 382
D.
LIMITATION OF TIME
14
15
16
The underlying principle in the above case is that the prosecution must be
brought within a reasonable time. Although the issue of "reasonable" time is to
be judged by the circumstances surrounding each particular case, courts will
generally be reluctant to entertain delayed prosecutions in absence of proper
explanation for the delay. The delay itself must be reasonable.
CONCLUSION
(i)
control over all criminal prosecutions in Kenya. This has its basis both in the
Constitution and the Criminal Procedure Code. It is however more pronounced
in criminal appeals.
(ii)
(iii)
(iv)
(v)
Page 56 of 382
CHAPTER TWO
A. INTRODUCTION
B. NOLLE PROSEQUI
See the Constitution of Kenya (1998) 1992. Text See also Chapter 1, Supra. The government has created the
office of the Director of Public Prosecutions (DPP) but this has not removed the Attorney-General from his
position as the overall in charge of prosecutions. It is arguable that the office of DPP as currently constituted is no
more than an administrative office and should not be confused with the office of the DPP in a place like England
where the DPP actually directs prosecutions
High Court of Kenya, Criminal application No. 39 of 2000
Page 57 of 382
5
4
entering of a nolle prosequi can be questioned by the court the power of the
Attorney-General under Section 26(3) of the Constitution are subject to the
Supra note 2
Page 59 of 382
criticize the Attorney General before he enters a nolle prosequi since the
proceedings are sub judice; nor can parliament actively question him after he
has exercised the power since that would be Unconstitutional6 and contrary to
the concept of separation of powers.7 Ultimately therefore, the question as to
whether 'nolle prosequi' can possibly be used for objective purposes beneficial
to the public interest may rest on the personal character and dynamism of the
Attorney-General particularly in the absence of a delimitation of the areas in
which it may be entered.
section 26 (8)
See generally: Burin & Shell, 'Politics, Law and Social Change.' Selected essays of Otto Kircheimer, New York Columbia
University Press, 1969. It is therefore arguable that Nolle Prosequi is a power 'sui generis'
7
Page 60 of 382
C. WITHDRAWAL
Withdrawing from prosecution of trials before subordinate courts may be
undertaken by a Public Prosecutor with the consent of the court or on the
instructions of the Attorney-General at any stage of the trial but must be before
judgment is pronounced9. Withdrawal takes two forms. First before the accused
person has been called upon to make his defence in such a case, he is to be
discharged but such discharge however is not a bar to any subsequent
proceedings against
withdrawal may be made after the accused has already made his defence in
Criminal Case No. 223 of 2003 (Unreported) at the High Court of Kenya, Nairobi
prosecutor) entered a nolle prosequi under the direction of the AttorneyGeneral. The Magistrate observed that he feels that the nolle prosequi goes
against public expectations and tramples on the right of the vulnerable and
hopeless in the society. Whichever way the court feels, it could complain about
the circumstances of presentation but can not ever reject a nolle prosequi. That
is the law and am bound by it.
(ii)
the Attorney-General
withdrew
10
Page 62 of 382
CHAPTER THREE
ARREST
A. INTRODUCTION
The Criminal Procedure Code1 does not define an arrest ,however,
sections 21 and 24 of the Code shed some light on what an arrest is. Section 21
provides that in making an arrest the arresting person shall actually touch or
confine the body of the person being arrested unless that person submits to
custody either by word or by conduct2. Section 24 states that the arrested person
must not to be subjected to more restraint than is necessary to prevent his
escape. The effect of these two sections is to define an arrest as a restraint,
whether by actual touching or merely by confining person on commission of a
crime or on suspicion of a crime having been committed or in order to prevent
the commission of threatened crime.
In the event of resistance the person arresting may use all means
necessary to effect arrest3, including reasonable use of force4, therefore, it is not
necessary to handcuff or tie a suspect who has submitted to custody by word or
conduct and intends to cause no trouble.
Another requirement of a lawful arrest is that the person arrested should
be informed of the reason for his arrest5, however, if the circumstances are such
that the arrested person
1
2
3
4
5
ARREST
must know the nature of the offence for which he is detained, it is not necessary
to inform him of the reason for his arrest6. The same applies where the suspect
runs away or resorts to attacking his arresters7.
The powers given to law enforcing agencies such as the police, are exclusively
for lawful purposes and must be exercised reasonably. There are remedies in
civil and criminal law to victims of unlawful arrest but this will depend on
whether the arrest was with or without warrant .
6
7
8
9
10
forces. He may also arrest any person he finds in a highway, yard or other place
during the night and whom he reasonably suspects of having committed or
being about to commit a felony. Likewise, he may arrest any person who has in
his possession any implements for housebreaking. Further, he may arrest any
released convict committing a breach of any provision by virtue of section 344
which relates to conditions imposed on such people while under police
supervision. Finally, under section 29 of the Code, a police officer may arrest
without a warrant any person for whom he has reasonable cause to believe a
warrant of arrest has been issued. And according to section 30, vagabonds,
persons who, by repute, are habitual robbers, thieves and those who are
commonly associated with other crimes of dishonesty, may be arrested by a
police officer without a warrant.
11
12
areas13.
(iii)
13
14
15
16
arrest may lead to criminal and civil liability for assault and false imprisonment
respectively17. The most obvious instance where this power is readily exercised
is where the owner of property or his servants arrest a person found committing
a crime against such property. Usually, a person would, with due regard to his
own safety, set upon the criminal and arrest him.
Section 102 of the Code requires that a warrant of arrest be in writing, signed by
the Magistrate and bearing the seal of the court. The warrant must state briefly
the charge against the suspect and describe his details. It shall also order the
person or persons to whom it is directed to apprehend the person against whom
it is issued and bring him before the court issuing the warrant, or before some
other court having jurisdiction in the case. Once issued, the warrant remains in
force until it is executed or cancelled by the court which issued it.
Any person or police officer to whom a warrant is issued is bound to execute it.
In so doing he, like the court which issues the warrant, is protected by judicial
17
18
Section 250 of the Penal Code (Cap 63.). Also see the law of Torts generally
M'lmbui v Dyer (1967) E.A. 315 (High Court of Kenya).
Page 67 of 382
immunity19.
Under section 105 of the Code, a warrant may be directed to a landholder,
farmer or manager of land. The warrant is Issued by a Magistrate empowered to
hold a subordinate court of the first class within his jurisdiction. It directs such
persons to arrest an escaped convict or a person accused of a cognizable offence
who is hiding on his property. A person arrested in this manner must be handed
over to the nearest police officer who shall cause him to be taken before a
Magistrate with the requisite jurisdiction.
A warrant is invariably directed to a police officer whose name is
endorsed on the warrant by the officer to whom it is directed or endorsed20. The
person executing the warrant must inform the person arrested of its substance
and show him the warrant if asked to do so. Upon being arrested the accused
must be produced before the court requiring his attendance without delay21.
A warrant of arrest may be executed in any place in Kenya 22. However, if
a warrant is executed outside the local limits of the jurisdiction of the issuing
Magistrate, the person arrested must first be brought before the court in whose
jurisdiction he was arrested unless the court issuing the warrant is only 20 miles
from the place of arrest or is nearer than the court within whose local limits of
jurisdiction arrest was made23. The Magistrate before whom the arrested person
is brought will cause his removal in custody to the court which authorized his
arrest if he is satisfied of the person arrested. The Magistrate may release such a
person on bail unless he is arrested for murder, treason, robbery with violence
or attempted robbery with violence.
19
20
21
22
23
(D) OTHERS
Besides the police, ordinary courts and private persons, other tribunals
which exercise quasi-judicial powers such as the Rent Restriction Tribunal and
Judicial Commissions of Inquiry have powers to issue warrants of arrest24.
Likewise, every officer of the National Assembly is vested with police powers
under the National Assembly (Powers and Privileges) Act25. In exercising this
power, the speaker or any officer of the National Assembly is not subject to the
jurisdiction of any court26.
(E) CONCLUSION
Ideally, the Police Force as a State institution, is required to ensure public
order and tranquility. In exercising the powers of arrest, police officers must
therefore comply with the prescription of Kenyan law.
24
25
26
See Republic v Zablon Ogalo Obonyo, Criminal Case No. 24 of 1991, Principal
Magistrates Court, Kisumu
Section 30, National Assembly (Powers and Privileges) Act, Chapter 179 of the
Laws of Kenya.
Ibid section 29. See also Attorney-General v. Times Newspapers Ltd. (1973)1 All ER 815.
Page 69 of 382
CHAPTER FOUR
A. INTRODUCTION
A search warrant is an authority to search a place for evidence of a crime
which is suspected or believed to have been committed or to make an arrest of a
suspected criminal.
A search warrant authorises the person to whom it is addressed to enter
by force if necessary, the place or premises described therein for that thing and
if the thing be found to seize it and take it before a court having jurisdiction to
be dealt with according to the law1.
If a police officer has reasonable suspicion that there is evidence in any place or
premise which he considers necessary for the investigation of a case, he may
apply to the court to issue a search warrant authorising him to search the place
or premises. Evidence of reasonable grounds is necessary and must be given on
oath.
A search warrant maybe issued on any day including Sunday between the
hours of sunrise and sunset although the court may by warrant authorize the
police officer or other person, to whom it is addressed to execute it at any hour2.
1
2
3
The
articles which are not mentioned in the warrant should not be seized unless such
unnamed articles are likely to provide additional evidence as to the identity of
such articles or which at least have some relevance in the charge against the
accused person.
A warrant shall be under the hand of the Judge or Magistrate issuing it
and shall bear the seal of the court.4 It shall state the offence with which the
person against whom it is issued is charged.
A search warrant may be directed to one or more police officers of the
area within which the court has jurisdiction or generally to all police officers of
the area5. If it is directed to more than one person it may be executed by all or
by any one of them.
A search warrant directed to a police officer may be executed by another
police officer whose name is endorsed upon the warrant by the officer to whom
it is directed or endorsed6. It may be executed at any place in Kenya7.
When a search warrant directed to a police officer is to be executed
outside the local limits of the jurisdiction of the court issuing it, he shall take it
for endorsement to a Magistrate within local limits of whose jurisdiction it is to
be executed. The Magistrate to whom a search warrant is so forwarded shall
endorse his name thereon and the endorsement shall be sufficient authority to
the police officer to whom the warrant is directed to execute it within the local
limits and the local police officers shall if so required assist that officer in
executing the warrant8.
If there is reason to believe that delay will be occasioned by obtaining
4
5
6
7
8
10
(1967) EA 23.
Page 73 of 382
charged and convicted. On appeal it was argued on his behalf that he was not
stopped and searched on any particular suspicion and that if there was any
suspicion at all it was not a reasonable one. It was further argued that the
prosecution had not proved that the motor vehicle parts found in the appellant's
car were the subject of suspicion. Dismissing the appeal Sir Udo Udoma CJ said
that it is not necessary that at the time of the stopping and searching the police
officer must have in mind a precise suspicion about anything stolen or
unlawfully obtained provided the circumstances are such that there is reason for
suspicion.
It is a traditional approach of the courts that a person charged with an
offence under some sections, a plea of guilty cannot be accepted under any
circumstances. The procedure has been that after reading and explaining the
charge to the accused, the evidence on which the prosecution relies on ought to
be heard and then the explanation of the accused if any. If he/she cannot give an
account to the satisfaction of the court as to how he/she came to be in
possession of the goods reasonably suspected to be stolen, then he/she can be
convicted of the offence. According to Saeid, CJ this rigid approach does not
take into account accused persons who through admitting suspicious possession
as alleged in the charge, stubbornly refuse to offer any explanation whatsoever.
In Koech -v- Republic11 the said judge said:
I have set out this portion of the judgement exclusively to emphasise that
procedure suggested in no way offends against what has consistently been
held by this court, yet it provides the flexibility which is in my opinion, so
obviously desirable. It is not altogether uncommon for a situation to arise
where a person accused of an offence under this section admits everything
and stubbornly insists on offering no explanation whatever for his
possession of the suspected goods.
11
D. CONCLUSION
The principle underlying instances of search is to consider on the one
hand the freedom of the individual; his privacy and his possessions are not to be
invaded except for the most compelling reasons. On the other hand, the interest
of society at large in finding out wrongdoers and repressing crime. Honest
citizens should help the police and not hinder them in their efforts to track down
criminals. In order to achieve this societal interest, the following requisites must
be satisfied:
1 . The police officers must have reasonable grounds for believing that it is a
serious offence.
2.
The police officers must have reasonable ground for believing that the
article in question is either the fruit of the crime (as in the case of stolen goods)
or is the instrument by which the crime was committed, or is to be committed or
is material evidence to prove the commission of the crime.
3.
The police officers must have reasonable grounds to believe that the
Page 75 of 382
12.[2001]1 EA 210
Page 76 of 382
CHAPTER FIVE
BAIL
A.
INTRODUCTION
Unless it falls within the specified legal exceptions, interference with the
In 1275, a first enactment was undertaken in the Westminster statute with the
aim of reducing abuse by the sheriffs of their wide powers to refuse bail. The
enactment systematized and codified the ad hoc arrangements between the
sheriffs and the principal (the accused) with the hope of standardizing the
practice of bail.3
The above surety system was capable of abuses. First, those who offered
themselves as sureties were either insufficient or secondly they took upon
themselves the names of other persons ability. No wonder an Act of James 1
provided for the punishment of false and insufficient sureties.
B.
BAIL IN KENYA
In Kenya, the law relating to bail is founded on the Constitution and the
2
3
4
5
6
Redcliffe - The English Legal System and Bail Procedures in magistrate's courts
supra note no. 1 at 966.
Douglas Brown, Criminal procedures in Uganda and Kenya, 1970, (Sweet and
Maxwell, London) (2nd Ed).
Section 72 of the Constitution (1998) 1992 Text
Ibid, Section 72 (1)(d).
Page 78 of 382
"If a person arrested ... is not tried within a reasonable time, then, without
prejudice to any further proceedings that may be brought against him, he
shall be released either unconditionally upon reasonable conditions as are
reasonably necessary to ensure that he appears at a later date for trial or
for proceedings preliminary to trial".
This subsection implies that the right to bail is conditional upon several
factors, as read together with the provisions of the Criminal Procedure Code
(Cap 75).
1.
It should be granted if the trial does not occur within a reasonable time. If
this is true, then it would seem that many of the releases granted on bail
are unconstitutional because they are granted on the first day of
appearance. While interpreting a similar Ugandan provision, Kiwanuka
C.J (Ag) in Musoke vs- Uganda noted in the East African Court of
7
8
(1967)EA315.
The arrested person be brought to court as soon as is reasonably practicable.
Page 79 of 382
Appeal that:
3.
This greatly eroded the discretion of the High Court because under both
subsections (1) and (3) of section 123 if a person was charged with murder or
treason, he could not be granted bail under whatever circumstances. The
subsection as amended created a contradiction. It meant that whereas under
subsection (1) four offences murder, treason, robbery with violence and
attempted robbery with violence were non-bailable, under subsection (3) only
two, murder and treason were non-bailable. It was therefore quite possible for a
person charged with robbery with violence or attempted robbery with violence
to be denied bail under sub-section (1) but get it under sub-section (3) because
in subsection (3) allowed bail in any case save murder and treason. The lacuna,
created in the 1978 amendment was filled in 1984 and sub-section (3) was
amended to make it tally with sub-section (1). By Act No. 19 of 1984, robbery
with violence and attempted robbery with violence were made non-bailable.
10
11
12
The effect of this quick development was to make the four offences nonbailable under both sub-sections. This status was temporary. In the following
year (1985) a Constitutional court in the case of Margaret Magiri Ngui v R13
declared section 123 of the Criminal Procedure Code inconsistent with the
constitution and therefore null and void by virtue of section 3 of the
Constitution. In the case Margaret Magiri Ngui was together with others
charged with robbery with violence, which was not a bailable offence in terms
of section 123 of Criminal Procedure Code. While in custody, she suffered
severe ulcers and high blood pressure. She applied for bail, which was refused.
An application was made to the High Court under section 84(1) of the
Constitution challenging the constitutionality of section 123 of Criminal
Procedure Code. It was argued on her behalf that in denying bail to persons
accused/charged with capital offences, the section was inconsistent with section
72(5) of the constitution which allowed bail to persons charged with all
offences. It was further contended by the applicant that the classification of
offences into bailable and non-bailable was a feature alien to the constitution.
The constitutional court agreed with this argument and held section 123 to be
inconsistent with the constitution and declared it to be null and void. The court
then proceeded to consider the application on merit having first found it had
power to grant or refuse bail. It held that bail, as a general rule, should not be
granted where the offence charged carries a mandatory death penalty because
the temptation to abscond in such cases is very high. The court thus refused to
release the applicant on bail.
In order to give effect to the ruling of the constitutional court, Act No. 19
of 1985 repealed the words: "Save where a person is accused of murder,
treason, robbery with violence or attempted robbery with violence" in
subsection (3) and substituted the words with "in any case whether or not
13
The accused lacks free and unrestricted constant consultation with his
14
15
16
Ibid.
Eliud Mwaura -vs- Republic, Criminal Application No. 446 of 1986.
Michael Zander, Cases and materials on English legal System," London, Weidenfield &
Nicholas, 1988 (5th Ed), at 239.
Page 84 of 382
counsel. His ability to gather evidence and consult with his witnesses is made a
myth'.
A second criticism is that it is unfair to an accused who is ultimately
acquitted. A person may be charged with murder but after trial it emerges that it
was a clear case of manslaughter which is a bailable offence, and the accused
having been remanded for a long period can legitimately claim to have been
unfairly treated. It is also unfair because the Kenyan legal system makes no
provision for compensation in cases of unfair remand of an accused person nor
is the court enjoined to take the remand period into cognizance while meting out
sentence.
A third criticism of the strict 'non bail' characters of capital offences is
that it is an unnecessary burden on the prisons since the accused becomes a
permanent inmate for as long as the case has not been finally determined. This
increases prison expenditure by caring for inmates who are not contributing to
the prison's income17. To this drawback on the financial standing of the prison,
overcrowding is added.
It is equally posited that capital offence trials take long to be determined
and pre-trial bail ensured that in deserving cases, the accused persons do not
suffer unduly through no fault of theirs18. The denial of bail also negates
presumption of innocence. An accused person is deemed innocent until he is
proved otherwise or he pleads guilty19. However, after the 1987 amendment, the
accused is in theory treated as innocent but in practice he is treated as a convict
and put in remand all along.
Furthermore, the consequences of the amendment have been termed as
inhuman. This is so because it totally ignores the individual circumstances of a
case and merely focuses on the punishment to be meted upon conviction. Yet as
17
18
19
In England, bail has been granted where it otherwise ought not to have been
granted on account of ill-health.21
E.
PRE-TRIAL BAIL
Much of the criticism concerning bail decisions has centred around the
20
21
22
reasons for refusing bail as being the likelihood of the accused absconding and
the likelihood of further offences being committed. In light of the above, it is
appreciated that the absence of a fixed address could be evidence in support of
the argument that the defendant would not appear at the adjourned hearing and a
record of previous convictions could be evidence for anticipating that if
released, he might commit other offences while on bail.
Several reasons have been suggested for refusing bail and several others
have also been propounded for its grant.
1. Fear Of Absconding
The trial of serious offence cannot normally proceed in the absence of the
accused. Therefore, any remand arrangements which fail to secure his
attendance will be unsatisfactory, as Lord Russel said;
Where the only objection to bail is fear of absconding there should be few cases
indeed where the court cannot by calling for adequate and sufficient sureties and
by imposing suitable requirements ensure the attendance of the accused. If he
fails to find sureties, he will necessarily remain in custody, but it is hoped that
courts will not refuse bail with sureties simply because they believe that the
accused would be unable to obtain them.
23
It does not matter how many sureties are tendered, they will still not be
adequate to meet the case if the true ground for objection is that the defendant
will commit an offence or offences while on bail.
While referring to a
defendant who had committed nine offences while on bail, Atkinson -J- noted
that "... to let such a man loose on society until he has received his
punishment for an offence which is not in dispute is in the view of this court
very inadvisable24".
If the prosecution is objecting to the release on bail on the ground that the
accused is likely to interfere with witnesses if granted bail, such an allegation
should be supported by facts showing reasonable cause for the belief.
24
25
26
27
28
6.
Illness
Hardship to a defendant who has been refused bail may arise through
serious illness. This has been recognized in America under section 73 of the
Institute Code which provides that courts, when satisfied upon investigation that
any confinement will endanger life may admit the defendant to bail.
7. Delay
Delay in the prosecution of a case through failure either to indict or to try
completely, constitutes a reason to allow bail as there may be great hardships on
the defendant29. Where the accused is applying delaying tactics and keeps
postponing the date for trial, the court may exercise its discretion and withdraw
bail where it had been granted30.
8.
past history. If the defendant has abused the grant of bail in the past, or if he is
already on bail in respect of another charge, these facts should count strongly
against him. In other cases however, the defendant's previous convictions may
not necessarily provide a reliable guide to his likely reaction to bail unless they
disclose a large number of serious offences. A case in point is the English
decision in R vs- Vallet31 where Lord Goddard CJ held inter-alia that
29
30
31
9.
32
33
34
35
36
37
38
People ex parte summons -v- snow 340 iu 469; (1688-93) I. N.P., 170
Thompson D.R, Proceedings in the Criminal Division of the Court of Appeal, Sussex,
Barry Rose Publishers Ltd, 1970.
Page 92 of 382
that
there
are
exceptional
or
unusual
It was further noted that a single factor is not enough to warrant a grant of
bail but the totality and cumulative considerations of all the facts of the case.
44
45
46
47
(a)
(b)
(c)
(d)
The application was allowed and while agreeing that no precedent existed
before this case (for grant of bail pending appeal on a plea of guilty) the court
observed that:
48
49
(1972) EA 47 at 49.
(1958)EA337.
Page 95 of 382
"...the fact remains that the prisoner has been convicted and
the onus is on him to show that he was wrongly convicted.51
A short custodial period, as accepted by Madan -J- in Hasham -v- R52 is
not in itself a special ground for granting an application for bail. However,
without prejudice to this argument, if the sentence is the maximum provided,
then the fact should be taken into consideration as there is the possibility that
the sentence might be served before the appeal is heard or when it is going on.
Such was indeed the case in Abdullah vs- R53 where the appellants had already
served their sentences and had been discharged when the appeal was allowed,
the conviction quashed and sentence set aside.
It has also been noted that delay alone is not enough and must be
accompanied by other factors, but in exceptional cases could be considered
alone. However, courts seem more prepared to take the case in its totality rather
50
51
52
53
(1972) EA 399.
Supra (note II) at page 337.
Criminal Appeal No. 582 of 1967 (unreported).
(1963)EA223.
Page 96 of 382
than pick specific factors. Harris -J- said: "...taking the case AS A WHOLE, I
am satisfied...54"
The question whether the Court of Appeal can grant bail pending appeal
was discussed in the case of Michael Otieno Ademba vs- R55. In this case the
appellant pleaded guilty to a charge of personating a person employed in civil
service, contrary to section 105(b) of the Penal Code. He was sentenced to
twelve months' imprisonment. He appealed against the sentence to the High
Court, which declined to grant bail pending the appeal. He subsequently
appealed against the judge's refusal to grant bail. Porter, Kneller and Hancox
JJA held that the Court of Appeal has no jurisdiction under Criminal Procedure
Code, or the rules of the Court of Appeal56 to entertain an appeal from a refusal
of the High Court to grant bail pending an appeal to that court. In this case, the
Court of Appeal noted that the accused's counsel had selected the wrong section
and sub-section of the Criminal Procedure Code for his application to the High
court for bail pending appeal to that court. He chose section 379(4) which
empowers a High Court judge or a Court of Appeal judge to grant bail pending
the hearing and determination of an appeal from the High Court to the Court of
Appeal except where the appellant has been sentenced to death. The application
ought to have been made under sections 356 or 357 (Criminal Procedure Code)
according to whether the appellant has or has not entered his appeal in the High
Court. The Court of Appeal followed the case of Nemchand Govindji vsRegina57 where the former East African Court of Appeal held that it had no
jurisdiction to grant bail pending an appeal to the Supreme Court of Kenya58.
54
55
56
57
58
As noted above therefore, a single factor may not suffice to warrant grant
of bail pending an appeal and several factors must be considered before the
discretion is exercised.
In the Islam Ali Abdulla -vs- R59 it was held that an appellate court can
only grant bail pending appeal where it is satisfied that there is a substantial
point of law to be argued which could, result in the conviction being quashed.
The applicant had applied for an order that he should be released on bail
pending the determination of his appeal. He had been sentenced to one year
imprisonment with five strokes of the cane after pleading guilty to a charge of
stealing goods on transit contrary to section 279(c) of the Penal Code. It was
argued on his behalf that besides the applicant's plea of guilty in the court of
first instance being not unequivocal, there were irregularities pertaining to the
taking of that plea which were incurable. It was further contended that the
factors outlined in support of the charge laid against the applicant did not
disclose the offence with which the latter was charged. It was further argued
that by the time the appeal is heard and determined, the applicant will have
served the sentence. The court asked itself whether the above facts were
exceptional to the extent that they drive the court to the conclusion that justice
can only be done by granting bail. The court further noted the dictum in
Torroha Mohammed Torroha vs- R60 where an appellate court is satisfied that
there is a substantial point of law to be argued and that it could lead to the
conviction being quashed, the court may grant bail pending appeal.
In refusing to grant the bail, the court stated inter alia that:
59
60
G.
SURETIES
It has however, been held that a court may not refuse a surety for his
political opinions or otherwise inquire into his private interests or character62.
In England, to ensure that sureties are not driven by monetary
consideration it is settled law that an agreement to indemnify sureties is an
illegal contract63 and has been made an offence in England under the Bail Act
(1976) at section 9(1).
Further,
the
Criminal
Justice
Act
(1967)64
introduced
special
requirements of bail. This section was re-enacted in the 1976 Act and allows the
court to impose any conditions it considers necessary to secure that a bailed
person:(a)
61
62
63
64
Surrenders to custody;
See North J in Consolidated Exploration and Finance Co. Ltd -vs- Musqrave(1900)64 J.
P.89.
R vs- Badger (1843) 7 J.P. 128.
R -vs- Porter (1908-10) All. ER 78.
Section 21 thereof.
Page 99 of 382
(b)
(c)
(d)
65
66
High Court Bulletin No. 54 /1963 at P.31. It should be noted that the Age of Majority is
now 18. See the Age of Majority Act Cap 33 of the Laws of Kenya.
See Constitution section 82.
Page 100 of 382
accused together with a document to show what property or wealth he owns assuming he does!
The section also provides that bail will be determined having regard to
the circumstances of the case. A test for granting bail was set in the Jaffer
Case67 where it was stated that the true test of a bail application is whether its
grant will be detrimental to the interest of justice68. However, the term interest
of justice is so wide that it cannot offer a definite guideline.
It has also been said that an aspect to be considered while granting bail
(or refusing) is the prisoner's safety. There ought to be a cooling off period so
that the people he (accused) had wronged are not aroused and lead to further
offences. Such a consideration heavily relies on the nature of the offence
charged. The case of R -vs- Gajjan Singh and Others69 is illustrative and here
where the landlord was charged with a criminal offence, letting him off could
have led to a breach of the peace i.e. attack by the tenants. The court observed
that:
H. BAIL BOND
The bulk of the law relating to bail and bond is outlined in the Criminal
67
68
69
70
(1973)EA39.
Ibid at 41.
(1947) 14 E.A.C.A III.
Ibid at 113.
Page 101 of 382
71
72
73
74
75
76
Cap. 84.
Section 43 Criminal Procedure Code (Cap 75 Laws of Kenya).
Section 44 and 45 Criminal Procedure Code (Cap 75 Laws of Kenya).
Section 46 Criminal Procedure Code (Cap 75 Laws of Kenya).
Section 47 Criminal Procedure Code (Cap 75 Laws of Kenya).
(1974)EA300.
Page 102 of 382
discharged from his bond, which discharge was granted. Later, the applicant
was ordered to forfeit its bond. He applied to the High Court to review this
order, and the respondent argued that the first order was a nullity and could be
ignored, although it had not been set aside by a superior court. The High Court
allowed the application and noted the following;
i) the first order was valid even if made irregularly, until set aside by
the High Court;
ii) an order irregularly made can only be set aside when the irregularity
has occasioned a failure of justice; and
iii) to uphold the forfeiture of a bond already set aside would occasion
a failure of justice.
The mode and style of operation of bail and bail bond is not in strict sense
wholly governed by the legal rules only. Persons who may be admitted to it
largely depend on other social factors. This is so because the legal system or
institution of a country cannot be looked at as being isolated, or abstract. It is
part of a broader social, political and economic status of the country. It can best
be understood only within the context of the concrete material conditions which
brought it about and which continues to shape it. Any analysis, therefore, must
focus on the economic, social, political and cultural organisation of the society
in which it operates.
"... the structure of a society always forms the real basis which,
in the last analysis, is to be explained the whole superstructure
of the legal and political, institutions.77
77
Engels F, "On historical materialism in Marx and Engels; Basic writings on politics
and philosophy." New York, 1959, at 43.
Page 103 of 382
Therefore, although we have stated the rules as relates to bail and bond in
Kenya, the practice may be seen to deviate. This deviation can only be
explained after considering the above socio-political and economic factors.
I.
78
The court should therefore start at the point when the matter was last considered
and need only investigate the matter further if there are new circumstances or
evidence of old circumstances not previously before the court. It has also been
said that the mere passage of time is not itself evidence of a change in
circumstances.
The effect of the Nottingham principle means that a refusal of bail is
indefinite unless and until something new turns up. "It is strongly submitted that
the Nottingham decision is very bad79". Whereas the passage of time is not in
itself a change of circumstances, it may lead to a change of circumstances. For
example the risk of interference with witnesses may diminish as the police
complete their inquiries and the taking of statements. Police objection to bail
may diminish or even disappear with time. There is no doubt that in some cases,
the renewed or successive application for bail may be hopeless and the reason(s)
for refusing bail in the last application may have been overwhelming;
79
80
"Bail: Renewed Application", The New Law Journal (1981)Vol 131,132 - 133
Ibid at 133,
Page 105 of 382
What one can then note is that refusal of bail may be an unfortunate
necessity, but the liberty of the citizen is not to be trifled with. A lawful bail
application should always be treated on its merits.
J.
Despite the fact that the substantive law of bail is being restated every
day, the subject generates great tension and passion between the bar and the
bench. The bar admires the bench which grants bail liberally according to its
members' views and convictions. However, no Magistrate will allow or refuse
bail indiscriminately and it has therefore been said that it is a fallacy aggravated
by coincidences or ignorance that some Magistrates are seen to be impervious to
the prisoner's rights; while others are considered excellent, steeped in sympathy
and constitutional propriety towards the prisoners.
However, courts try to apply the law according to the circumstances in each
case and make the decision (to grant or to refuse bail) in a responsible manner.
Courts claim competence to deal with such cases as they deem fit because they
carry the burden of conscience bearing in mind the conflicting claims of the
prisoner and those of the state. The dilemma is best illustrated by the Indian
case of Lokmanya Tilak.81 He was arrested on a charge of sedition and an
application for bail made and argued on his behalf by a young barrister, Mr.
Daver, before Justice Ronade, who was himself an admirer of Tilak's
philosophy. The application was refused and two days later, it was taken before
a Muslim judge, Tayabji Badruddin. In view of the anti-muslim bias of the
Article which was the basis of the prosecution, Mr. Justice Badruddin was
hardly expected to allow Tilak bail. However, that is exactly what happened!
Thus the two jurists had differing views about the ends of justice. The young
81
Second Source - Proceedings of Kenya's 1st Law Society Conference, Rauf, A 1978.
Page 106 of 382
barrister, Daver, was elevated to the High Court Bench and in the fullness of
time, and by the irony of fate which only history is capable of, Tilak was again
charged with sedition. Bail application was again made, but this time, Daver
was not dealing with it from the bar, but as the presiding judge. The same
arguments that Daver had presented to Justice Tayabji were presented to him.
Daver -J- refused bail saying:
The bench has times without number shown that it is qualified just as the
bar is, and that their training does not remove them from their belief in human
rights which they strive to uphold. Their (judges') philosophy is inconsistent
with conscious distortion of the fundamental and noble concepts of law.
However, they are called to perform the impossible task of matching the ideal
with the reality. The conflict between the ideal and the reality is evident in all
corners of nature. Santayana82 exemplifies the ambivalence:
82
The circumstances of each case must be considered on their own merits. For the
defence, the litmus test of the court's impartiality and independence is
determined by its attitude towards the bail application. On the other hand, the
prosecution counsel will judge the court's sensibility to the social and national
imperatives from the opposite direction. This reflects the dynamism with which
bail questions are answered and determined.
The attacks upon the court are merely expressions of the unrest which
characterises the concern of the lawyers and jurists with the fundamental rights
of the individual enshrined in the Constitution of Kenya and the United Nations
Declaration of Human Rights to which Kenya is a subscriber. The constructive
criticism is welcome and ought to be encouraged - constant vigilance is the
price of eternal liberty and peace. However, the hope to achieve the absolute
right to bail, one must campaign to change the law and make it mandatory for
the courts to grant bail in all but very few exceptional cases. This is a difficult
suggestion. For a start an experiment could be made to narrow down the court's
discretion on bail in specified cases and widen the list gradually, all depending
on the success of the experiment. But mandatory bail may appear to be risky at
this stage of the development of our institutions, but in view of the importance
of the prisoner's right to bail it is a risk worth taking.
It is a truism that practice does not always follow the law. A variance is
often detected. Delay in the criminal process is a common feature despite the
fact that it is unconstitutional. While one cannot turn a blind eye to the fact that
crime rate is on the increase, which occasions pressure of work, one still feels
that the main cause of the delay lies with those who are entrusted with the
administration of justice. There are delays occasioned by the arresting of an
accused by officers before investigations are effected on grounds of suspicion
Page 108 of 382
with investigations being left to be done later. The apologists of this 'misfit'
justify it on the premise that if no arrests are made before the investigations are.
done, that would defeat administration of justice. Several factors explain this
variance between the law and what the practice is.
i)
to the circumstances of the case but unfortunately this term has been interpreted
by the courts to cover only the nature of the offence, and the evidence of the
accused. The economic well-being of the accused is not given the requisite
attention and hence more often than not the amount fixed is excessive.
ii.)
Surety: The more influential and well-known to the police and the court
the surety is, the greater the likelihood of bail being granted.
iii)
problem to pre-trial liberty. In Kenya only a minority is literate and even the
few have no proper exposition to court procedures and will therefore not apply
for bail.
L. SUGGESTED REFORMS
i)
ii)
83
if it is not possible to bring him before the court within the stipulated
period. Secondly, it must not appear to him that the offence is of a serious
nature. This last requirement should be deleted because practice has
shown that nearly every offence appears to be of a serious nature to
police officers, Bail has been refused by police officers for offenses such
as being found drunk and disorderly in a public place.
A list of bailable and non-bailable offenses should he made available to
the officers with a provision for adherence to the list. This is the only way
to render operative and effective the section84 for as it stands now, its a
dead letter law.
iii)
M.
The bulk of the law relating to bail in Kenya is found in the Criminal Procedure
Code and in particular section 123 thereof. It provides that the issue of bail can
arise at any time that is before proceedings are commenced or during the course
of them as the section states "at any stage of the proceedings". The section
further gives police officers in charge of a police station power to grant bail. It
is provided that a cash bail or a bond with sureties may be granted. Usually, the
cash bail is set at a rate that even if the accused, absconds the amount, it is
enough to repair damage done or compensate for anything lost or injuries
suffered. Cash bail is usually given in offences subject to minimum sentence as
was done in the case of Jaffer -vs- R85, where the court held that all offences
falling under Minimum Sentences Act of Tanzania are bailable and proceeded
84
85
Section 123(1) provides for a bond without sureties as well. This can be a free
bond on the accused's own recognizance that he will appear for trial and he does
not have to pay or deposit any security. Where the accused has executed a bond
without sureties or no security and he fails to appear in court, a warrant will be
issued and when found he shall face a criminal charge for absconding. Where
there is a surety or security and the principal fails to turn up, the surety forfeits
the amount deposited, or in the case of property it is forfeited to the state,
The Ugandan Case of Nsubuga -vs- R86 lays down the law relating to forfeiture.
In this case, an accused was granted the sum of Shs. 500/- on the 2nd day of
February 1967 in the Magistrates court Mengo, as security for his attendance,
for trial on July the 25th 1967 and was released on bail. Sometime on the 25th
July 1967 the Magistrate recorded that the accused was absent and a warrant of
his arrest was issued at the request of the prosecution. On 8th August 1967, the
accused appeared before the court and stated that he had been present on July
25th 1967 but his name was not called out. The prosecutor stated that the
accused had been absent but no evidence was called to prove this. The Chief
Magistrate then ordered the Shs. 500/- to be forfeited.
The accused appealed. It was held by Sir Udo Udoma (C-J) that:
i)
ii)
iii)
the procedure adopted by the Magistrate was defective. The appeal was
86
(1968)E.A. 10.
Page 111 of 382
allowed and the forfeited sum ordered to be refunded to the accused. Sir Udo
noted:
or
87
88
(i)
(ii)
people who are to make the bail decision (invariably the court and police
officers) and those who are in possession, of information relevant to the bail
application and decision. This information could include that which regards the
accused's financial standing, his employment and community ties.(iii) It must be
a just system, 'just' should be taken to refer to equality and
consistency. For instance there should be no discrimination against
individuals or groups of individuals for reasons wholly unconnected with
their suitability for bail. Further there should be safeguards to protect
89
90
defendants in their applications for bail against the prejudices or even the
eccentricities of individual courts or individual members of the judiciary.
(iv) There ought to be adequate compensation for those persons who spend
their time in jail awaiting trial and are then acquitted by the court or who
have the charges against them dropped.
There has been a concern on the issue of who owes the duty to ensure that the
accused appears. Several sources have suggested that the duty is wholly on the
state and not on the relatives or friends of the accused. There are several cases
and legal works which question the legality of resting the burden which should
necessarily be borne by the state, onto an individual. The case of R -vs- Wood
Green97 captures the matter. The applicant sought judicial review of an order of
the Crown that she forfeit the sum of 35,000 pounds which she had taken as
surety for her brother, a defendant to a charge of conspiracy to supply unlawful
drugs. The applicant's brother duly appeared but when the case was later refixed for trial he failed to report to the surety (the applicant) as he had always
done. She informed the police and she also sought to withdraw her surety. It
was held inter-alia that it was open to a surety to make a complaint in writing at
a police station that the defendant was unlikely to surrender to custody and a
constable could thereafter arrest the defendant without warrant. However, it was
further held that there was no power for a surety to withdraw as the applicant
had sought to do, unless the defendant was before the court and an appropriate
application made. There has been a great concern over the above judgment and
several writers have thought that there is a strong case for saying that the
95
96
97
Ann Rankin, "The effect of Pre-trial detention", New York University Law Review,
(1964) vol 39 641.
Ibid at 648.
R vs- Wood Green Crown Court ex-parte Jemima Home, Reported in Criminal Law
Review 1991 at 694
Page 115 of 382
responsibility for ensuring that defendant's turn up for trial should be on the
state and not on the family and friends of the accused, however willing they
may appear to be to undertake this role98.
98
See Corre, 'Bail in Criminal Proceedings' 1990 [From second source (1991) Criminal
Law Review].
Page 116 of 382
CHAPTER SIX
CHARGES AND INFORMATION
A. INTRODUCTION
The Criminal Procedure Code provides a number of ways in which a complaint
may be made. It is by virtue of such a complaint that proceedings will be
instituted. Section 89(1) of the Criminal Procedure Code provides that
proceedings may be instituted either by the making of a complaint or by
bringing before a Magistrate of a person who has been arrested without warrant,
further, a complaint may be made orally or in writing, but, if made orally,
should be reduced to writing by the Magistrate, and be signed by both the
complainant and the Magistrate1. The form of the complaint so made is
regulated by rules of procedure as discussed below.
B. CHARGES
A charge is a formal written accusation of an offence drawn by a Magistrate or
by a police officer and signed as required by law for the purpose of use in
preliminary proceedings or in a proper trial. It lies against all persons who
actually commit, or who procure or assist in the commission of any crime or
who knowingly harbour a felon.
A charge is drawn among other reasons as a means of making known to the
accused person the offence with which he is charged. This is to enable him to
fully prepare his defence.
The Constitution also gives significance to the charge. It is required that no
person can be convicted of an offence unless that offence is defined and the
penalty thereof prescribed in a written law2. This makes it mandatory that the
charge be based on some known offence (known to law) otherwise it cannot
stand.
The law prescribes the manner in which the charge is to be framed. It
contains three basic parts: the commencement, the statement of the offence and
the particulars of the offence. The charge is a succinct description of the offence
and the particulars and it should not contain any evidence. However, the
particulars must be clear enough to enable the accused person to know what
offence he is charged with. This notion and centrality of clarity was noted in the
case of Nahashon Marenya. vs- R3. The appellant had been charged with
failing to comply with a curfew restriction order contrary to section 9 (1) of the
Public Order Act4, The particulars of the offence did not mention this matter
making the charge equivocal. Todd -J- allowed this appeal and said inter-alia
that:
2
3
4
Udo Udoma focused on the point in Avone -vs- R5. In this case, the appellant
was charged with three counts; one of obtaining credit by fraud, one of forgery
and one of personation. The charge misdescribed the sections of the Penal Code
under which two of the counts were laid. The appellant was convicted on all
three counts. He appealed contending that a conviction based on such a charge
was a nullity in law. The court however held that the misdirections in the charge
had not prejudiced the appellant and therefore the convictions should stand. In
dismissing the appeal, Sir Udo briefly noted:
Another case which spells out the judicial position on the question of
non-existent and wrong sections is Sabur -vs- R7. The appellant was served
with a summons to answer two charges preferred against him under the Traffic
Ordinance, 1951. The first count charged the appellant with exceeding the
speed limit for commercial vehicles and the second count was for reckless
driving. The appellant was convicted and he appealed. It was contended on his
behalf that he should have been charged under section 40(1) of the Ordinance
instead of section 39(1) and therefore the charge was defective. But it was held
that since the particulars of the offence were adequate to inform the appellant of
the offence with which he was charged, there had been no failure of justice and
the defect was curable under the Criminal Procedure Code. Looking at the
Ordinance in question.
5
6
7
(1969)EA129.
Ibid at 132.
(1958) E.A 126.
Page 119 of 382
Section 39(1) provided that "no person shall drive a motor vehicle of any
class or description on a road at a speed greater than the maximum speed
prescribed for such a vehicle..."
Section 40(1) Provided that "any person, who drives... a motor vehicle at a
speed greater than the maximum limit lawfully imposed shall be guilty of
an offence and shall be liable on conviction to a fine not exceeding Shs.
1,000/= or to imprisonment for a period not exceeding three months".
It is therefore clear that section 39(1) does not create an offence but
merely prohibits exceeding the speed limit. Section 40(1) on the other hand
declares it to be an offence.
The Criminal Procedure Code provides that if the offence charged is one
created by enactment it shall contain a reference to the section of the enactment
creating the offence. The philosophy seems to be that if the defects have not
occasioned a failure of justice, then the charge will stand and a conviction based
thereon cannot be quashed on mere ground of the defect. Section 382 of the
Criminal Procedure Code is clear that unless the defect has occasioned a failure
of justice or has prejudiced the accused, an order or conviction should not be
quashed. This does not however warrant the drafters to be careless. A limit
beyond which the defects are not permissible exists. Grave defects cannot be
countenanced. This issue has received judicial consideration in the Ugandan
case of Uganda -vs- Keneri Opindi8. In this case, the accused pleaded guilty
firstly for failing to display an 'L' plate and secondly for being a learner driver,
(1965)EA 614.
Page 120 of 382
driving while not accompanied by a competent driver. The first count was laid
under "section 9(b) 123 of the Traffic Ordinance" and the second under "section
9(a) and 12 of the Traffic Ordinance", 1951. It was contended in support of a
revisional order against conviction and sentence that the counts were manifestly
wrong in law in that the first should have been laid under section 9 of theTraffic Regulations (NOT ORDINANCE) and that the second failed to indicate
the law under which the charge was laid. On behalf of the D.P.P., it was
contended that the convictions on both counts should be stood as the accused
was in no way prejudiced by the counts being laid under the Traffic Ordinance
instead of the Traffic Regulations; and that it was probable that the framers
meant section 9(b) of the Traffic Regulations. Sir Udo Udoma C.J held firstly
with regard to the first count that there being no section 9(b) of the Traffic
Ordinance, only section 9 (which did not create an offence) the particulars set
out as constituting an offence however clearly stated, by themselves could not
create an offence. Secondly, that the error was a fundamental one in law in that
the accused was charged with a non-existent offence. It was further held that it
was not competent for the court to speculate on the intention of the framer of
the charge but must be guided in determining such intention, by the expressions
contained in the record of proceedings, and it being impossible to ascertain
from the record whether the second count was laid under the Traffic Ordinance
or Traffic Regulations, the charge was bad and contravened section 347 (of the
Ugandan Criminal Procedure Code)9. The conviction and sentences were set
aside and the accused acquitted and discharged.
D.
These particulars were a mixture of section 367(e) and (a) of the Penal
Code. On appeal, Rudd and Trevelyn JA ruled that although the charge was
defective, the defect was not of such an irregularity or error as had occasioned a
failure of justice under section 382 of the Criminal Procedure Code.
12
13
(1965)EA572.
Ibid para i
Page 123 of 382
The two were charged and the particulars were that the accused on a
certain date and at a certain place, were found in possession of game trophies
without a valid licence from the Chief Game Warden, to wit seventeen drums
made out of Zebra skins and forty seven pieces of Zebra skin. The accused
pleaded guilty, were fined and fines paid. On appeal, which was allowed, it was
held that the charge was defective in that it did not allege an essential ingredient
of the offence i.e. that the skins came from animals killed etc in contravention
of the Act. As per Spry JA;
"It is fundamental that every charge should allege all the essential
constituents of an offence. In the present case, where an offence against
section 14 was alleged, we think that the allegation that the pieces of skin
came from an animal killed in contravention of the Act was an essential
14
15
(1969)EA236.
Chapter 266 of the Laws of Uganda.
Page 124 of 382
16
17
Shah -vs- R18 that a conviction based, on a charge that did not name the owner
of the property cannot be quashed on that premise so long as the property is
proved to have been stolen.
On the question of form of the charge, it is important to note that the
defence available to the accused be stated in the negative.19 This has further
been judicially stated, in the case Lebiningin vs- R20. In this case, the appellant
was convicted on his own plea of guilty of illegal possession of game trophy.
On appeal, it was contended that the charge was bad as it did not negative by
averment all the defence open to the appellant, among other grounds. The High
Court of Kenya held that it is not necessary in the charge to negate exceptions
to or qualifications of the offence.
F. GENERAL FORM
18
19
20
21
(1960)EA562
Section 137(b) (ii) Cap 75 Criminal Procedure Code.
(1974)EA103.
Section 137(a) (iv) Cap 75 Criminal Procedure Code (Cap 75 Laws of
Kenya).
Page 126 of 382
naming
any
individual22.
Such
names
may
be
'Trustees',
Paragraph (d) of section 137 (Criminal Procedure Code) provides that the
description or designation, in a charge of the accused person, or of another
person to whom reference is made therein shall be reasonably sufficient to
identify him without necessarily stating his correct name, or his abode. If
owing to the name of the person not being known, or for any other reason, it is
impracticable to give such a description or designation, a description or
designation shall be given as is reasonably practicable in the circumstances or
the person may be described as "a person unknown.
It is further allowed that the gross sum may be specified, in certain cases
of stealing. Thus when a person is charged with an offence under sections
28024, 28I25 28226, or 28327 of the Penal Code, it shall be sufficient to specify
the gross amount of property in respect of which the offence is alleged to have
been committed and the dates between which the offence is alleged to have
been committed without specifying particular times or exact dates28.
The notion of naming persons must be distinguished from the naming
when the naming is the actual ingredient of the offence alleged to have been
committed. The case of Christopher Omufira Akwabi vs- R29, as analyzed
22
23
24
25
26
27
28
29
Section 137(c) (ii) Cap 75 Criminal Procedure Code (Cap 75 Laws of Kenya).
Section 137(c) (iii) Cap 75 Criminal Procedure Code (Cap 75 Laws of Kenya).
Stealing by person in public service.
Stealing by clerk or servant.
Stealing by Director or officer of Company.
Stealing by agent etc.
Section 137(j) Criminal Procedure Code (Cap 75 Laws of Kenya).
Cr. App. No, 131 of 1989.
Page 127 of 382
below, brings out the difference. A plea of guilty to a defective charge cannot
stand and the accused person cannot be convicted and sentenced on such a plea.
The Court of Appeal so held that the appellant was convicted on his own plea of
guilty to the offence of giving false information to a person employed in the
public service contrary to section 129(a) of the Penal Code. The particulars of
the case were as follows:
Christopher Omufira on 24th May 1989 at the Nairobi City Hall gave
false information to one Mr. Shigholi, a person employed in the public service
to the effect that some prominent personalities had given money to a Nairobi
City Commission official in order to induce the said official and other workers
of the commission to undermine the smooth running and operations of the
Nairobi City Commission, which information the said Christopher knew to be
false and likely to cause the said Shigholi to do an act which he would
otherwise not do if the true state of facts respecting the said information was
known to him.
Counsel for the appellant contended that there was an incurable defect in
that it was improper to omit the names of the prominent personalities and the
official of the City Council whose alleged misconduct formed the false
information given to Shigholi. The counsel urged that that was a fatal omission.
The court in its judgment ruled that it was imperative for the "prominent
personalities" and the "official" to have been identified bynames in the
particulars of the charge, as without the names or actual identifying information
alleged to have been given by the appellant, the false statement alleged to have
been given to Shigholi was incomplete. The charge as framed was incomplete
and deficient to that extent and a plea of guilty to it is not quite unequivocal. In
the court's view, "they" as witnesses must be distinguished from ordinary
witnesses to an event. "In this case", the court said, " 'they' were not witnesses
to an offence (i.e. the event) but are alleged to be the actual participants in. the
Page 128 of 382
event and their alleged actions constituted the vital ingredients in the false
statement. On account of the role they are alleged to have played in the false
statement, a fullest possible identification of these persons was essential".
Thus, a plea of guilty to a defective charge cannot stand.
G.
JOINDER OF COUNTS
30
(1943) 1 EACA121.
Page 129 of 382
founded on the same facts, or form or are part of a series of offenses of the
same or a similar character".
Other cases show that even if a defect is noted in the charge, the defect
will not warrant the conviction to be quashed, unless and until the defect has
occasioned a failure of justice31. The Kenyan, case of Kamwana s/o Mutia vsR32 elaborates further. In this case, the question which arose was whether the
trial would be a nullity where there was a joinder of counts for dissimilar
offences in one charge sheet. The appellant appealed against conviction and
sentence on three counts involving 'theft' 'breaking and entering premises' and
'therein stealing money', and on a fourth count for possession of 'bhang'. The
fourth count of possessing 'bhang' was not treated as an issue at the trial, but
when the appellant had been convicted on the other three counts, he asked that
this offence should be taken into consideration whereupon the Magistrate
purported to convict him of this offence also, and imposed for it a separate
sentence. On appeal, the Supreme Court of Kenya held that the count charging
the appellant with possession, of 'bhang' should not have been included in the
same charge sheet with the three other dissimilar counts; but since no injustice
resulted from the improper joinder, the trial of the other three should not be
treated as a nullity. This shows that so long as the anomaly of misjoinder
alleged does not occasion an injustice, courts are ready to disregard the
impropriety of the technicalities and deal with 'substantial justice'. The above
position prevails even in English courts which are not persuaded to quash a
conviction unless the misjoinder has occasioned a failure of justice. The English
decision in R vs- Muir33 is in point. The appellant was convicted upon an
indictment which charged four offences, two of rape of a young girl on two
31
32
33
different occasions, a third of stealing from the girl's father, and a fourth of
indecent assault on a totally different person who was a married woman. He
appealed on the ground that the two charges of rape and the one of indecent
assault should not have been tried together. The court held that those two
dissimilar offences should not have been charged together in one indictment.
However, the court only ruled as to the desirability of the two dissimilar
offences being tried (and charged) separately and upheld the conviction noting
that the impropriety did not occasion a miscarriage of justice to the accused.
There are cases for which, it is desired that the counts be charged
together. This was discussed at length in the case of Kamau s/o Muga vs- R34.
The applicant was convicted on three counts namely: causing death by
dangerous driving, driving under the influence of alcohol and driving an
unlicensed public vehicle. He appealed against the conviction and sentence on
the first count. At the trial, evidence was adduced that there was a mechanical
defect in the steering mechanism and that the appellant was under the influence
of drink at the material time to such an extent as not to be capable of proper
control. The crown invited the attention of the court to the case of R vsMcbride35 and requested a direction in similar terms to that given by the Court
of Criminal Appeal on the advisability of joining a count of driving when under
the influence of drink with a count of causing death by dangerous driving. It
was felt that generally an indictment containing a charge of causing death by
dangerous driving should not include a charge of driving under the influence of
alcohol but may properly be coupled with a charge of dangerous driving if the
evidence regarding the influence of drink upon the driver is such as to justify it.
Thus the dictum in R -vs- McBride (above) was approved.
Therefore, a misjoinder of counts will not be occasioned where the
34
35
(1963)EA172,
(1961)3W.L.R549.
Page 131 of 382
offenses with which the accused person is charged are based on the same
facts36.
H.
JOINDER OF PERSONS
Section 136 of the Criminal Procedure Code spells out the circumstances
under which persons may be joined as co-accused persons. The said
circumstances include the following:
(a)
same transaction;
(b)
(c)
(d)
(e)
(f)
For purposes of section 136(h), a person is said to have abetted and aided
another if it can be demonstrated that they participated in the same transaction
and that in the course of the said transaction he actively assisted in the
continuance or completion of the offence that is called into question. However,
36
there is no clear definition of 'same transaction' and what is the same transaction
will be subjectively judged from the peculiar circumstances of each case. The
requirement that persons who are jointly charged must have participated in the
course of the same transaction is important so far as that constitutes 'the same
transaction'. The case of Nathani -vs- R37 is illustrative of the point. The facts
of this case were that the appellant who was a proprietor of a travel agency, was
charged together with a public officer, on a number of counts. The appellant
was convicted on one count of wrongfully and corruptly giving money to a
public officer. The Public Officer was convicted in the same trial for wrongfully
receiving the said bribe. The appellant lodged an appeal. One of the grounds
was that there had been a misjoinder of parties. The East African Court of
Appeal held that there had been no such a misjoinder because the concatenation
of events was uninterrupted and therefore the offences constituted the same
transaction.
In the case of Yokobo Uma and Another vs- R38, the two appellants
were charged and tried jointly. The offence against each was "doing an act
intended to cause grievous harm". The first appellant alone was charged on the
second count. The particulars of each alleged offence showed that the incident
said to involve the first appellant had occurred on a different date at a different
place and with a different weapon from the one said to involve the second
appellant. The complainant was the same in each count. They appealed against
the convictions. Sir Udo Udoma CJ ruled that the charge as laid was bad in law
for misjoinder.
The law relating to joinder of persons is that those who join in the
commission of an offence, may be jointly indicted for it or each of them may be
indicted separately. Thus if several people commit a robbery or murder, they
37
38
may be indicted for it jointly or severally. [And] although they have acted
separately yet the essence of the law of joinder is that it gives the legal
imprimatur allowing the charging of persons jointly or severally. However,
where two persons are jointly charged with one offence, convictions cannot
stand against both of them on evidence that an offence of that nature was
committed by each of them independently. This is the jurisprudence from R -vsScaramanga39.
Although misjoinder of parties is undesirable, it is a curable irregularity
which does not render the trial a nullity. However, it is a reason which may
sometimes justify the quashing of a conviction and invite an order of a trial de
novo.
I. DUPLICITY
It is a requirement of law and practice that a charge, should not suffer
from duplicity; that is to say:
"No one count of the indictment should charge the prisoner with
having committed two or more separate offences40".
This for our purposes will suffice as a definition for the term 'duplicity'.
The same definition is also attributable to the English case of R -vs- Molley41.
What is contemplated by the definition can be illustrated in the old English case
R -vs- Devett42 where the charge read; "On diverse dates between January 1909
and October 4th 1910" and in another count; "On diverse dates between
39
40
41
42
October 4th 1910, and the end of February 191343. Such a charge is defective in
that there is a considerably long stretch of time between the counts. These are
two offences which should receive separate treatment. But where the offences
charged consist of one single act they may be made the subject of a single
count. For instance, when the prisoner was charged in one count with uttering a
number of forged receipts, and it was proved that all the forged receipts were
uttered at one and the same time, in one bundle, the count was held good and
not bad for duplicity. This was the case of The King -vs- Thomas44. Likewise, a
man may be indicted for battery of two or more persons in the same count
where the battery is one transaction, or for a libel upon two or more persons
when the publication is one (single) act, without rendering the count bad for
duplicity. This was stated in the case of R -vs- Benfield45. What the above
judicial authorities indicate is that a count charging a person with one
endeavour to procure the commission of two offences is not bad for duplicity
because the endeavour is the offence charged. This is in fact given judicial
restatement in the case of R vs- Fuller46, which case re-stated the above
position.
A charge may be duplex but if the duplicity does not occasion a failure of
justice, the conviction, therefrom must stand. A case in point is R -vsThompson47. This case involved duplicity in the charge, which charge was
formulated to the effect that:
43
44
45
46
47
Objection was taken that the charge (indictment) was bad for duplicity.
The objection, being overruled by the lower court became the subject matter of
the appeal from the conviction. It was held that the indictment was bad in that it
charged more than one offence in each count; but that as the prisoner had not in
fact been prejudiced in his defence by the presentation of the indictment in that
form, there had been no miscarriage of justice and the appeal dismissed. This
conforms to section 382 of the Criminal Procedure Code which provides that
unless the form of charge and the defects therein cause a failure of or
miscarriage of justice, a conviction will not be quashed or a trial rendered a
nullity only on account of such an anomaly.
Duplicity occurs even where the charges are framed in the alternative. In
Adam Mwandalafu vs- R48 the appellant was charged on alternative counts
with arson and attempted murder. The particulars of the charge of arson stated
that the appellant set fire to two houses, one of K and the other of N. The house
of N was more than hundred yards from K's house. The particulars of the charge
of attempted murder stated that the appellant attempted to cause death of K and
his wife by setting on fire two houses; one of K and the other of N. After the
assessors had given their opinions and before judgment was delivered the trial
judge noticed that both the counts were bad for duplicity, but considered that it
was too late for the irregularities to be cured by amendment. The judge
purported to invoke section 346 of the Tanzanian Criminal Procedure Code in
relation to the first count of arson and held that the first count, although bad for
duplicity, had occasioned no failure of justice. As regards the duplicity in the
second count, in referring to setting on fire or more than one house the judge,
disregarded the reference to the burning of NTs house. The appellant was
48
(1966)EA459,
Page 136 of 382
convicted on both counts notwithstanding that the two counts were stated in the
information to be in the alternative and was sentenced to concurrent terms of
three and six years' imprisonment. On appeal, the Court of Appeal for East
Africa held inter-alia that:
i)
the appellant could and should have been charged with two offences
arising out of the two acts of arson, but charging of these two offences as
one had not occasioned a failure of justice. The irregularity was curable
by the court under sect-ion 346 of the Tanzanian Criminal Procedure
Code, that:
the alleged attempted murder on two occasions of K and his wife, first by
burning K's house and then by burning N's house when K and his wife
took refuge there after K's house had been destroyed, should have been
the subject of two separate counts and each count should have charged
the attempted murder of either K or his wife and not both together;
(iii)
the duplicity in the second count and the judge's disregarding of the
reference to the burning of N's house were irregularities curable under
section 346 afore-noted;
(iv)
that the proper course where there are alternative counts is to convict and
sentence on one hand and to make no finding on the other;
(v)
that the charges of arson and attempted murder are not cognate offences
Page 137 of 382
There are, however, other cases which may be charged together in one
count without rendering the charge duplex. In Mwangi -vs- R49 the appellant
was found in possession of a revolver and eight rounds of ammunition which
had been stolen thirteen months earlier at a time when he was in prison. He was
convicted on a single charge of being in possession of the revolver and the
ammunition without a firearms certificate and of receiving the revolver
knowing it to have been stolen. On appeal it was contended that the first charge
was duplex in that the firearm and the ammunition should have been charged
separately. Bennett -J- held that the firearm and the ammunition may be
charged in one count.
49
50
51
(1974)EA108.
(1974)EA83.
(1955)22 E.A.CA 478.
Page 138 of 382
Procedure Code that where more than one offence is charged in a charge or
information, a description of each offence shall be set out in a separate
paragraph of that charge or information, called a count. The court approved R vs- Boyle52, which was mainly concerned with the procedure to be adopted
where several offences appear in the same charge or indictment, the court,
dealing with the charging of alternative counts said:
It is this dictum which Sir Wicks CJ and Trevelyan J followed. The courts in
this country have followed the above and to quote Trevelyan J;
It is, therefore, a settled law that a count which charges two offences is bad for
duplicity, and that a conviction based on it cannot stand. However, if the form
of preferring the charge is permitted by statute it cannot be said to be bad for
duplicity even if it charges two or more offences.55
J. ALTERNATIVE CHARGES
As discussed above, the rule relating to duplicity prohibits a situation
52
53
54
55
(1954)2ALLER721.
Section 137(a) (v) Criminal Procedure Code Cap 75.
E.A.C.A Cr. App, No.66 of 1972 (Unreported).
(1974) EA 83, at 84 para. D.
Page 139 of 382
where two substantive offences are charged under the same count and ordinarily
even in cases where one charge has several counts to it, it is a mandatory
requirement of the law that the counts should be set out separately and the two
should be numbered consecutively56. However, sometimes a single charge may
contain charges which are alternative to each other.
Alternative charges are normally justified in circumstances where the
factors attending the offence in question are not very clearly focused with the
consequence that it is not easy to discern which offence was actually
committed. A good example is where a person is thought to have stolen
property contrary to section 275 of the Penal Code yet the prosecution is not
certain that the accused actually stole. An alternative charge of handling
suspected stolen property contrary to section 322 of the Penal Code maybe
preferred against the accused person. In such a case where an accused is
charged with alternative charges, the prosecution has a widened scope of
adducing evidence in support of either of the charges. However, this must not
be seen as an indiscriminate exercise where the prosecution may arraign any
person before the court without any proper reason. It should be understood in
context as a benign provision for enabling the prosecution to proceed where
there are actual uncertainties.
K.
AMENDMENT OF CHARGES
The Criminal Procedure Code spells out the instances and situations when a
charge or an information may be amended. Section 214 (1) provides that where
at any stage of a trial before the close of the prosecution case it appears to the
56
See also the case of Kababi -vs- R (1980) KLR 95 (HCK). In this case the appellant was charged in
one single charge with causing death of three persons by dangerous driving and no objection was raised on the
form of the charge. On appeal it was held that the failure to file three separate counts did not occassion any
failure of justice. However, the apparent conflict in a number of decisions should not blur the law. The true test
should be whether injustice and prejudice has been occassioned by duplicity. If not, substance should not suffer
at the altar of form.
Page 140 of 382
court that the charge is defective either in form or substance, the court may
order for its amendment to bring it in line with the required style. Once the
charge has been amended an accused person should be called upon to plead to
the amended charge. However, a simple variance between the charge and the
evidence adduced in support of it with respect to the time of which the alleged
offence was committed is not material and the charge need not be amended for
the variance if it is proved that the proceedings were in fact instituted within the
time (if any) limited by law for the institution thereof57.
For the amendment of an information, section 275(1) requires that every
objection to an information for a formal defect on the face thereof shall be taken
immediately after the information has been read over to the accused person and
not later. When an information is amended a note of the order for the
amendment shall be endorsed on the information and the information shall be
treated for all purposes of all proceedings in connection therewith as having
been filed in the amended form58.
On the question of amendment, it has been observed that the court has
wide discretion and may amend the charge even after the close of the
prosecution case. This was judicially recognized in the case of Maulidi Abdalla
Change vs- R59. In this case, a charge was amended at the close of the case
for the defence with the result that a new charge with a heavier penalty was
introduced. Sir Ralph Windham stated, inter-alia, that a charge can be
substituted even alter the close of defence, but the substituted charge can only
be allowed if it will not occasion injustice to the accused person. This decision
explains the position in Kenya, notwithstanding the fact that it emanated from
Tanzania.
This position had been recognized even earlier in the case of Benjamin
57
58
59
Sauzier -vs- R60 where the appellant appealed against his conviction of
attempted arson. The appeal was dismissed but the appellate court commented
on the aspect of amending the charge after the close of the case for the
prosecution. It was noted that at the close of the case for the prosecution, the
evidence having disclosed an attempt of arson only the trial judge upheld a
submission of no case to answer, but having regard to the provisions of the
Criminal Procedure Code, ordered that the charge be amended to 'attempted
arson' and took the appellant's plea on the amended charge. The court held
inter-alia that it is not necessary to amend a charge of committing a full offence
in order to convict an accused of an attempt. The court had no indication that it
cannot exercise its jurisdiction to amend charges and amend after the close of
the case for the prosecution.
M.
QUASHING OF INFORMATION
60
61
62
(1962)E.A. 50.
(1966)EA167.
(1964)3 All. E.R385.
Page 142 of 382
bad on the face of it, or if there was any such insufficiency either in the caption
or in the body of an indictment as would make erroneous any judgment
whatsoever given or any part thereof, the court might in its discretion quash the
indictment63. For instance a number of persons may not be indicted jointly for
an offence which must be several. Thus in R vs- Tucker64 an indictment
against six persons for unlawfully exercising a trade was quashed because it
was a distinct offence in each case and could not be made the subject of a joint
prosecution.. In R -vs Phillips65, judgment was arrested on an indictment of six
persons for perjury (to which four pleaded and were convicted) on the ground
that the offence was in its nature several and two people could not be indicted
together for it. In several instances, indictments have been quashed because the
facts stated in them did not amount to an offence punishable by law. Thus an
indictment for libel was quashed the expression used in the alleged libel not
being prima facie libelous, and the indictment containing no averments or
innuendos showing that those expressions were intended to impute improper
conduct to the prosecutor. This was in the English case of R vs- Yates66. It has
however been stated in R -vs- The Chairman of London Sessions ex Parte
Downes67 that a court is not entitled to quash an- indictment because an
examination of the dispositions has led it to the conclusion that the prosecution
would not succeed on any account.
In Kenya, section 276 of the Criminal Procedure Code provides for
quashing of an information. It is provided, that if an information does not state,
and cannot by amendment authorized by section 275 be made to state an
offence of which the accused has had notice, it shall be quashed either on a
63
64
65
66
67
See Archbold J.F: Archbold: Evidence, Pleadings & Criminal Practice, London, Sweet &
Maxwell, 5th ed. 1962, at 88
4 Burr 2046
2 str 921
(1920)15 Cr. App. Rep. 15 at 1 b
(1954)IQB I
Page 143 of 382
N.
CONCLUSION
68
69
70
CHAPTER SEVEN
PLEAS
A. INTRODUCTION
Plea taking marks the commencement of the trial process in a criminal
court. After a decision has been taken to prosecute an accused person he/she is
brought before a court of law to plead to the charge(s) laid against him.
Under Kenyan law offences may be divided into three distinct categories
for the purpose of plea taking or commencement of trial namely; offences
which require no consent71, offences which require the Attorney General's
consent before plea taking72 and offences which require leave of Attorney
General before institution of prosecution73.
Whenever the law prescribes that the consent of the Attorney General
must precede the plea, if this requirement is disregarded any plea taken in
disobedience is null and void as was judicially recognised in the Tanzanian
case of R v Telenge74 which is in pari materia.
This chapter deals with this important stage in the process of criminal
trials.
The procedure and the manner in which pleas are taken is dictated by the
Criminal Procedure Code as intepreted through case law over the years.
71
72
73
74
C.
RECORDING OF PLEAS
When an accused person appears for trial, the charge must be read and if
Where there is more than one accused jointly charged, the plea of each
should be recorded separately. And if a charge or indictment contains several
counts the accused must be asked to plead to them separately. Just as there must
be a separate sentence for each count on which a conviction is recorded, an
"omnibus" plea of guilty is unlawful. To obviate this the East African Court of
Appeal set out the proper procedure to be followed in the case of Adan v
Republic77 as follows:
77
[1970]EA24.
Page 148 of 382
(i)
That the charge and the particulars of the offence should be explained to
the accused, in the language that he/she understands.
(ii)
(iii)
That in the event of a plea of guilty the fact should be stated to the
accused, and he/she should be granted an opportunity to respond.
(iv)
That if an accused disputes the facts of the charge a plea of 'Not guilty
must be entered.
(v)
Where there is more than one accused jointly charged, the plea of each
should be recorded separately. And if a charge or indictment contains
several counts the accused must be asked to plead to them separately.
(vi)
In the event that an accused does not change his/her plea, a plea of guilty
should be entered and a conviction recorded and after mitigation and
facts relevant to sentence are taken the sentence can be meted out.
person may plead that he has previously been convicted or acquitted of the
same offence or that he has obtained the President's pardon for the offence.
The words 'autrefois acquit' and 'autrefois convict' may not be
specifically mentioned in the body of the Criminal Procedure Code but the
principle of law is the same, that is, a person should not twice be put in
jeopardy for the same offence; hence the use of the words in the head note.
The principle of law is that on a plea of 'autrefois acquit' or 'convict', the
test is not whether the facts relied upon are the same at the two trials, but
whether the acquittal or conviction on the previous charge involved an acquittal
or conviction on the subsequent charge. This rule of 'autrefois convict' or
'acquit' applies not only to the offence actually charged in the first charge or
indictment, but also to any offence of which the accused could have been
acquitted or convicted.
When an accused person pleads that he has obtained a pardon, should the
plea be successful after a trial, then the accused is not acquitted but discharged.
The same for an accused who pleads 'autrefois acquit'. Such a discharge is not
an acquittal but merely a finding or order that the accused person is not to be
placed upon his trial and such order being a final order is capable of being
challenged in revisional proceedings.
In Kamundi v R80, the court said, there are no provisions providing for a
plea to be changed, but there are equally no provisions to present a plea being
changed before the court becomes "functus officio". The court then held that a
Magistrate had judicial discretion to allow a change of plea before passing
sentence or making some order finally disposing of the case and in this case his
discretion had not been judicially exercised". In the earlier case of Maumba v
R81 the Court of Appeal also stated the Magistrate's powers to allow amendment
exists only during trial, before conviction and before the court becomes 'functus
officio'.
In England the Queen's Bench Division in R v Guest exp. Anthony82
held that where an unequivocal plea of guilty had been accepted by a
Magistrate's court. The court was 'functus officio' with regard to the conviction
or acquittal, and neither 'mandamus' nor 'certiorari' should issue with a view to
further proceedings inconsistent with that plea being taken. The House of Lords
later overruled the R v Guest case in S (an infant) v Manchester City Recorder
and others83 in which the House of Lords held that a court of summary
jurisdiction which had accepted a plea of guilty to an offence is not in law
debarred from permitting at any time before a sentence a plea of not guilty to be
substituted. This was the decision, which was followed by the Court of Appeal
for East Africa in Kamundis Case.
Therefore the "functus officio" rule in East Africa and particularly in Kenya can
be stated thus; when a court has determined a case by passing sentence, it is
"functus officio" and has no power to re-open the case either of its own motion
or on the application of the prosecution or of the defence.
80
81
82
83
[1973] EA 540.
[1966] EA 167.
|964]3 ALLER 385.
[1969) 3 All CR 1230.
Page 151 of 382
F.
PLEA BARGAINING
Plea bargaining is not practised in the Kenyan Legal System as it would
84
85
86
87
See the case of Sabur v R (1958)EA 126 (HC4) which although a colonial case
represents contemporary Kenyan criminal Jurisprundence.
Wanjema v R [1971 ] EA 493
Shiani v R (1972) E.A.557 (HCK)
W.P. Mclauchlan, American Legal Processes ([New York]: John Wiley & Sons 1977),PP. 125126
Page 152 of 382
CHAPTER EIGHT
A. INTRODUCTION
The courts subordinate to the High Court and Courts-martial are
established by section 65 (1) of the Constitution and have such jurisdiction and
powers as may be conferred on them by any other law.
Section 65(2) of the Constitution gives the High Court jurisdiction to
supervise criminal proceedings before a subordinate court or court-martial for
the purpose of ensuring that justice is duly administered by those courts.
Section 67 of the Constitution provides that the subordinate court make
references to the High Court in matters relating to constitutional interpretation
involving substantial questions of law.
The Constitution also provides for the establishment of a Chief Kadhi
and such number, not being less than three, of other Kadhi's as may be
prescribed by or under an Act of Parliament.
The subordinate courts to the High court are divided into:
The Chief Magistrate's Court The Principal Magistrate's Court The Resident
Magistrate's Court The District Magistrate's Court.
These are distributed countrywide in each of the provinces and districts.
They are presided over by Magistrates or persons qualified to hold such office
appointed by the Judicial Service Commission of Kenya.
B.
Kenya has a court structure which operates at different levels. The court at each
level has power to deal with certain cases which is described as jurisdiction.
Page 153 of 382
C. TRIAL PROCEDURES
(i) The Prosecution Case
A criminal trial commences when an accused is called to take his place in the
dock. Then the charge is read and explained to him and asked if he understands
it. He is asked whether he pleads guilty or not.
Section 207 of the Criminal Procedure Code States that if an accused
admits the truth of the charge, his admission shall be recorded as nearly as
possible in the words used by him and the court shall convict him and pass
sentence upon or make an order against him, unless there appears to it sufficient
cause to the contrary.
An accused should plead by his own mouth and not through his counsel
Page 154 of 382
88
89
90
91
It is to be assumed that the term 'word of mouth' includes sign language where applicable.
Section 194 Criminal Procedure Code (Cap 75).
(1953)26 KLR 87.
Section 99 Criminal Procedure Code (Cap 75).
Page 155 of 382
92
93
94
95
If a finding is made that the prosecution has not established a prima facie
case then the accused will be acquitted. Conversely, if the court finds that a
prima facie case has been established then the court will explain to the accused
his/her rights to remain silent, give an unsworn statement or to render a sworn
statement.
If the accused is not acquitted the Magistrate calls upon him to enter on
his defence. It is an essential part of a criminal trial. An omission to do so
occasions failure of justice and is not curable. The Magistrate explains the
charge and the difference between sworn and unsworn statement in accordance
96
(1957)EA332 (C.A)
Page 157 of 382
(iii)
(DW) in any order he wants. He has a right to address the court at the
commencement and in conclusion of his case. The prosecution shall reply after
the accused has addressed the court in conclusion. The accused may apply for
issue of process to compel attendance of witnesses or production of documents
or thing and unless the Magistrate considers the application vexatious or made
for the purpose of delay or defeating the ends of justice, shall issue such
process. The Magistrate should record his reasons for refusal.
Majority of Criminal cases in Kenya are defended by the accused without
the assistance of an advocate. The procedure in conducting a defence is for the
accused to give his evidence first. This was the holding in R v Malakwen arap
Mutei97. It is a mistake in procedure to allow the accused to give his evidence
after he has called witnesses for the reason that as an accused he is present in
court during the whole of the hearing and should he not give his evidence first
he will have the advantage of listening to his own witnesses give evidence.
The court may, before or during the hearing of a case, adjourn the hearing
to a certain time and place to be appointed and stated in the presence and
hearing of the parties or their respective advocates then present98.
D.
SUBMISSIONS
After the prosecution and the defence have closed their cases the law
97
98
99
100
101
Section 161 of the Criminal Procedure code see also the case of Joseph Mbebi s/o
Mali and others versus R 1957 EA 426 (SCK).
Criminal case No. 9 of 1989 High Court of Kenya Kisumu (unreported).
Page 159 of 382
CHAPTER NINE
TRANSFER OF CASES
A. INTRODUCTION
The provisions for transfer of criminal cases from one court to another
are based more on the principle of meeting the ends of justice and securing
public confidence on the independence and integrity of the court than imposing
a check, and balance on the presiding officers. To do the latter would be to
impute lack of fairness and impartiality on the part of the bench.
Transfer of criminal cases is provided for in sections 78, 79, 80 and 81 of
the Criminal Procedure Code1. The raison deitre of this provision is to allay
any fears on. the part of the litigants that justice will not be done if the
proceedings are allowed to commence or to go on before a particular
Magistrate. The burden is on the applicants to show that circumstances exist
that make him apprehend that he will not get a fair and impartial trial. The duty
cast on the court is to decide whether or not there is an apprehension not
founded on surmises and/or unproved allegations. The test to be used in
determining the apprehension is that of reasonableness. The court is under an
obligation to grant an application for transfer if it is of the opinion that certain
circumstances which are, or tend to have a nexus with the case or the parties
thereto are such that they have the effect of creating what E. Trevelyan, J 2
called
1
2
thinking persons mind that a fair and impartial trial might not
be had before the Magistrate."
Several factors may justify transfer of a case(s) from one court to another, these
are;(i)
(ii)
Where a fair and impartial trial cannot be had in any criminal court
subordinate thereto;
iii)
(iv)
(v)
Where it appears that an order for transfer is expedient for the ends
of justice or is required by any provision of this code,
Governed by the grounds set at above the High Court may order the
transfer of a case from one court to another. Under section 78(1) the Criminal
Procedure Code subordinate courts are also empowered to transfer cases.
Section 78(1) provides inter alia
(b)
a) Jurisdiction
b) Fair Trial
The fairness of a trial is at the heart of every criminal justice system ipso
facto it behoves the High Court to ensure that every trial is fair. Therefore,
where it is established that the trial Magistrate has an interest in a case,
pecuniary or otherwise, such situations and factors must give rise to a
reasonable apprehension, on the part of a party to a case that justice will not be
done and justify transfer. The applicant and/or complainant must show
circumstances from which it can be inferred that he/she entertains an
apprehension and that it is reasonable in the circumstances alleged. In John
Brown Shilenje -vs- R5 the High Court held that a mere allegation of
apprehension does not suffice; the court has to see whether the apprehension is
based on reasonable grounds. Put another way, the apprehension must be real,
honestly held and reasonably based.
4
5
(d)
process for a quick and fair determination of a case. The High Court in Kenya
Matches Ltd vs- R7, relied on this view when it transferred the trial from
Kericho to Kisumu. It relied on the ground that the witnesses were in Kisumu,
and accordingly granted it.
(e)
Expediency
When expediency justifies then under section 81(I)(e) the High Court
C.
EFFECT OF TRANSFER
When an order of transfer is made, it is incumbent upon the court from
which the transfer is sought to stay proceedings. If the transfer Ls granted, the
court to which the transfer is made is free to continue with the trial from where
it was stayed. Otherwise it may start to hear the evidence afresh. It can be
inferred from the foregoing that the transferee Magistrate is not-bound by
6
7
8
9
CHAPTER TEN
SOME THOUGHTS ON COMMITTAL PROCEEDINGS1
A. INTRODUCTION
B. PRELIMINARY INQUIRY
The provisions governing preliminary inquiry were set in the Criminal
Procedure Code sections 230-249. In the inquiry the court did not have to
determine the guilt or innocence of the accused person. It had only to consider
Provisions relating to the Commital of accused persons for the trial before the High Court were repealed vide
Amendment Act No. 5 of 2003. Nevertheless, this chapter is retained for historical reference.
2
Hogorth J, Sentencing as a human process, Toronto, Toronto University Press, 1971 pp 46
Page 166 of 382
whether the evidence was sufficient to put the accused person on his trial and in
which case it committed him to the High Court if the evidence against the
accused was considered insufficient, he was discharged, However, this
discharge was not a bar to the prosecution of the accused on any subsequent
charge in respect of the same facts.
The Magistrate's duty was largely mechanical. His principal task was to
record the evidence during the inquiry. It could therefore be well argued that
the time spent in the preliminary inquiry could more profitably be used in the
actual hearing and determination of the case. Inconvenience to the witnesses
was tremendous and hence the criticism of the process. It is noteworthy that
objections to the preliminary inquiry ranged around the issue of time and
expense. However, the inquiry served as an opportunity for the accused to know
what the case against him was. The inquiry also provided a chance for the
accused to challenge any evidence of the prosecution. It also afforded the
accused an opportunity of appearing before a Magistrate with some dispatch
and having his case investigated so that it could be determined whether or not
there was sufficient evidence to put him on trial.
Preliminary inquiry was abolished in 19823 and substituted with
committal proceedings which had the basic idea that the accused person should
be served with statements taken by the police from prosecution witnesses. If
an accused person wished
Witnesses were
called when
time and
expenses.
General Joseph Kamere advanced the following reasons for the amendment:
"The purpose of this Bill is twofold: clause (I) (2) (3) and (4)
will speed up criminal trials by permitting either the
prosecution or the defence to admit facts or witnesses'
statements. This can be done to avoid calling witnesses whose
evidence is purely formal or uncontested. There are safeguards
to protect unrepresented accused4".
4
5
as
trial reflected badly on the fairness of the procedure. The same witnesses and
the accused himself were the same persons who were required at the trial to
lead evidence after a subsequent committal, and it was upon the state to bind
the witnesses and the accused to appear at both the trial and inquiry. Section
242 read:
The essence of preliminary inquiry was found in section 239 and 240 which
related to the discharge or committal of an accused person. The sections had
Covered by section 3(1) of the 1967 Judicature Act. Chapter 8 of the Laws of Kenya.
Page 169 of 382
Section 239 provided that once the prosecution had proved a 'prima facie' case
against the accused, the accused would then be "committed for trial". The
expression "Committed for trial" was defined by Goddard J thus:
that an
7
8
9
Where the evidence was sufficient to commit an accused, the magistrate issud a
cautionary address in which it was made clear that the committal proceedings
were not the trial and that anything the accussed said before the court would be
taken down and could be used at the trial.
C.
COMMITTAL PROCEEDINGS
Committal proceedings was defined in the Act 10 as proceedings held by
a subordinate court for the purpose of committing an accused person for trial
before the High Court. The committal proceedings were not the trial. The
committal documents, or depositions prepared by the police (or prosecution)
were submitted to the subordinate court, which in this case was restricted to a
Senior Resident or Chief Magistrate's Court. Where the accused did not object
to the documents, the Magistrate formed an opinion of whether there was
sufficient opinon before committing the accused person for trial.
Committal proceedings were
one of
10
court could adjourn a case if it took cognizance that the offence was unsuitable
for trial before such a subordinate court. In that case, the subordinate court
would require the prosecution to comply with the procedure of committal
proceedings as enacted in Part VIII of the Criminal Procedure Code.
Briefly the procedure was that the prosecution furnished to the accused or his
advocate one set of the committal documents and three sets to the court. This
was
done not less than fourteen (14) days before the date fixed for the
"This is not your trial. You will be tried later in another court
before a judge and assessors, where witnesses will give
evidence and you will be allowed to make a statement or give
11
12
13
evidence on oath and call your witnesses. If you wish, you may
say something now, either on oath or not on oath. If you say
anything on oath now, you may be questioned by the
prosecution. If a promise or threat, was made to you earlier, it
should not make you confess to an offence now. Anything you
say will be written down and may be used at your trial."
The accused could alter or explain any statements or evidence he had recorded
and the magistrate certified that the statements or evidence was made in his
presence and also certified the accuracy of the record.
The procedure culminated with the signing of the record by the accused. If the
accused refused to sign, a note of refusal was made and the record used as if the
accused person had signed it. 14.
If there were insufficient grounds for committing the accused person for
trial, the Magistrate discharged him.15 The prosecution was
withdraw the charge and the magistrate
allowed to
However, a discharge under the above two provisions was not autrefois acquit
because section 233(3) stated that:
This rendered in another version simply meant that the discharge was not an
absolute one and the prosecution could re-open the files by bringing in fresh
charges, which could be like the previous ones.
Once an accused had
14
15
magistrate administered bail or remanded the accused person until the trial.
16
However, because all offences triable exclusively by the High Court are nonbailable, the question of bail never arose. The Ugandan case of Zubairi17
focuses on the point of bail and committal proceedings. In this case, the
respondents were committed to stand trial on charges of murder. They were in
custody for over 365 days and made an application under the Magistrates Court
Act section 74(a) thereof for bail. [Provisions of Magistrates Court Act of
Uganda distinguished from the law relating to bail on a murder charge in
Kenya]. The magistrate held that the maximum period of remand related to
remand in custody while police were investigating and it did not apply after the
preliminary inquiry had been held and the respondents had been committed to
trial. The decision was referred to the High Court. Bail was granted to both
respondents. On appeal to the Court of Appeal it was held inter alia that;
(i)
(ii)
a Magistrate who has committed for trial is 'functus officio' and cannot
entertain an application for bail;
(iii)
the accused has a right to apply for bail to the High Court;
(iv)
(v)
The appeal was thereby dismissed and bail allowed. In some instances,
statements of persons dangerously ill and which are relevant to the trial may be
taken by the Magistrate who shall certify the accuracy of the record. He shall
further make a note giving the reasons for his taking it. He should also state the
16
17
date when it was taken. This was preserved for the trial.18 If the statement
related to the offence for which the accused was under a charge or committed
for trial, reasonable notice was to be given of the intention to take it and if the
accused person was in custody, he could request to be brought to the place
where the statement was to be taken.19 Such a statement was then transmitted
to the Registrar of the High Court and a copy thereof be transmitted to the
Attorney-General. Such statements could have been used in evidence during
the trial. 20.
D.
Kenya can be traced to the colonial era when the first courts were set up by the
1897 East African Order-in-Council, which created Native Courtss. It was with
the introduction of these native courts that the English system was incorporated
in Kenya. It is this experience therefore, that led to the 'Old Law' of England on
preliminary examination being accepted in its entirety in Kenya.
The functions of the preliminary inquiry were threefold: First was the test
of sufficiency of evidence; Secondly the propriety of the proceeding being
passed on even where the evidence was sufficient from the prosecution to the
Magistrate. Finally, the inquiry allowed the defendant limited discovery of the
case against him and preservation of the testimony which might otherwise be
unavoidable at the trial.
Under section 23121 the inquiry was to be carried out by any 'magistrate
empowered to hold a subordinate court for first, second or third class. To put a
person accused of and charged with a capital offence in the hands of a third
class Magistrate seems unreasonable and the Magistrate to try the accused
18
19
20
21
The time within which committal documents were required was not adequate
to prepare defence.
E. CONCLUSION
Although the introduction of Committal Proceedings has served to
expedite the process of trials particularly in murder cases, delays are still
22
23
CHAPTER ELEVEN
TRIAL IN THE HIGH COURT1
A.
INTRODUCTION
section 60 of the
Constitution. It has jurisdiction in civil and criminal matters over all persons ,
and over all causes in Kenya. It exercises general powers of supervision over
subordinate courts and tribunals. The High Court is the primary court of first
instance because it is able to try any case of any description. However, some
cases suc as of murder and treason are exclusively triable by the High Court.
While before the repeal of section 220 of the Criminal Procedure Code as
read together with section 230(b) of the Code may have given the impression
that there were other offences exclusively triable by the High Court, the true
position however was that only murder and treason fall into the category of
offences exclusively triable by the High Court. This view must respectfully be
wrong. First, it derogated from the plain meaning of sections 220 and 230 of
the Criminal Procedure Code. More importantly, it could not stand to reason in
light of section 234 of the Criminal Procedure Code, which obligated
Magistrate upon committing a person for trial to the High Court, to either admit
Sections 220 and 230 of the Criminal Procedure Code were repealed by Amendment Act No. 5 of 2003.
However, the trial procedure at the High Court is discussed as it was before repeal of provisions relating to
committal of the accused persons for trial before the High Court.
Page 177 of 382
him to bail or remand him in custody. It is submitted that if only murder and
treason were contemplated, provision for bail were futile as the two are nonbailable offences. The caption must have been inserted (and reasserted through
Act 13 of 1987) in contemplation of such other bailable offence which may
however prove unsuitable for trial in a Magistrate's court.
The High Court is presided over by the Chief Justice or by a Puisne
Judge. There are various High Court Judges who stay and work in Nairobi.
There are also Resident Judges in nearly all provinces in Kenya. In some
provinces like Nyanza, for instance, there is a resident Judge in Kisumu and
another in Kisii town.
Provisions relating to committal proceedings were repealed via Criminal Law (Amendment) Act No. 5 of
2003. Nevertheless, these provisions are discussed for historical references.
3
See Douglas Brown Criminal Procedure in Uganda and Kenya list Ed sweet and Makwell Wist PC) 46
4
(1965) E.A.614
5
Avone-v-R (1969) E.A.I 29.
Page 178 of 382
address of the accused person. Dates in the charge sheet were stated in such a
manner to precisely tally with the day on which the wrongful act was
committed. 6. Where the date of event was uncertain, the Magistrate gave an
approximation of the dates7. The place where the alleged offence was
committed was also stated in the charge sheet. In Loibon's case8, the charge
gave no particulars of the place of the offence except to state that it occurred in
the Northern Province of Tanganyika. It was held that a reference to what may
be a vast territory can hardly be said to indicate to an accused person, with
reasonable clarity, the place at which it is alleged he committed the offence.
Provision for joinder of counts is made under section 135(1) of the
Criminal Procedure Code. It provides that:
6
7
8
9
10
11
The charge framed by the Magistrate was in the same terms as the
information15 or an amendment thereof. Section 253 of the Criminal Procedure
12
13
14
15
16
17
18
H.C.Criminal (Misc) App. No. 11 of 1988. See also Gouriet Vs Union of Post Office
Workers (1978) A.C. 435.
Recall for instance the intriguing murders of J. M. Kariuki, Argwings Kodhek, Tom Mboya, Julie
Ward, Robert Ouko et al. Natural justice would demand that some prosecution ensue, best of all private, with cooperation from the investigation branches of the Government.
(1961)EA244.
Page 181 of 382
the High Court. As one writer opines19, the Court must be sure that the accused
has attended on the day appointed for trial in the High Court. If the accused is
on bail bond, he appears on the date indicated therein. If he is in custody, it is
the State's duty to ensure his attendance.
The accused person to be tried by the High Court shall be placed at the
bar unfettered. The charge is read over to him by the Registrar or other officer
of the Court. The charge is explained in straightforward language. The accused
must understand the charge. He is then required to plead (section 274 Criminal
Procedure Code). But before pleading, various issues could arise. The accused
may decline to plead on the ground that a copy of the information to which he is
entitled, has not been served on him. He may also object to the case proceeding
without being furnished with statements made by witnesses previously in an
inquiry or inquest, if such documents are in the possession of the AttorneyGeneral20. Should the court sustain such objection, proof of service may be
required. For the latter, if the prosecution objects, a ruling is first made. The
taking of the plea may then be adjourned pending proof of service. Otherwise
the court will order that the defence be supplied with such documents and may
for that purpose adjourn the proceedings.
19
20
Kamlesh Pattni.21 The accused in that case was arrested after the repeal of
provisions relating to committalproceedings including provisions requiring the
prosecution to supply committal documents to the accused. The prosecution
argued in support of non- disclosure of the list of witnesses, their statements
and other exhibits and documents which it intended to rely on and only to
supply those which in prosecutions absolute discretion were deemed necessary.
The court stated that the decision whether or not to withhold statements of
witnesses cannot be left to the prosecution and that it must be a judicial decision
to be made after a just cause or peculiar circumstances of the case are
demonstrated to the court. The court argued that:
pre-trial disclosure was well known and approved in this country under
Emergency Regulations and is not a new idea. Kariuki Kamau & Others vsReginah (1954) 21 EACA 203 is a case on point where this practice was
approved by the Court of Appeal for East Africa. It was a misconception for
the prosecution to submit that since Part VIII of the Criminal Procedure
Code and all the provisions there under had been deleted, then the
prosecution was not obliged to supply witness statements and exhibits to the
defense.
The court went on to state that the prosecutions duty to disclose all relevant
information is safeguarded under section 77 of the Constitution which provides
that an accused person should be afforded a fair hearing within a reasonable
time. The court argued that fair trial constitutes in it the right to pre- trial
disclosure of material statements and exhibits. It went on to declare that that is
the only way an accused person would be able to prepare for the case and to
have an informed representation. The court declared that anything less would
mean that the court is giving approval to trials by ambush and in criminal
litigation, it is against the rules of natural justice and the rule of law to adopt a
21
Republic -vs- Kamlesh Mansuklal Damji Pattni alias Paul Pattni (2003) Criminal Case No. 229 of 2003 in the
Criminal Division of the High Court Nairobi.
Page 183 of 382
practice under which an accused person will be ambushed. Finally, the court
expressed the view that the witness statements, exhibits and documents
obtained by the prosecution after investigations are not the property of the
prosecution but the property of the public to ensure that justice is done.
It is submitted that this is the correct procedure to adopt in the High Court in the
wake of repeal of provisions relating to committal proceedings.
22
23
"... and any amendments shall be made upon such terms as the
court shall deem Just.
In Akatendasama24, it was postulated that amendment of a clarge should
show the amendments in red. Perhaps it is good to adopt this in the High Court.
If an information does not state and cannot even after amendment be
made to state an offence for which the accused has had notice, it shall be
quashed either on a motion, made before the accused, pleads (as above) or on a
motion in arrest of judgment (section 276(1)). The motion shall be written and
delivered to the Registrar or other officer of the court (section 276(2)).
(19b6)23 EACA487.
Hando (1951)18 EACA 307,
(1951)18 EACA 311.
(19!:>9)EA625.
Page 185 of 382
and thereafter convicted the appellant for murder and sentenced him to death.
On appeal, it was held, inter alia, that the appellants plea was not an
unequivocal plea of guilty of murder and might well have been a plea of killing
upon provocation and this vitiated the conviction. A new trial was ordered.
When asked to plead, the accused may, or may fail to, adopt any of the various
approaches. Assuming he understands the charge and no objection has been
raised, or if it has been overruled, or settled, he may:
1. Plead guilty
2. Plead not guilty
3. Say nothing - this is entered as a plea of not guilty or the court may try if
the accused is of sound or unsound mind.
4. Assert that the court has no jurisdiction, over him.
5. Demurrer; give a legal objection., that is, admit the facts but say they do
not amount to an offence known to law.
6. Plead Autrefois Convict.
7. Plead Autrefois Acquit
8. Plead, (having been previously) pardon(ed).
guilty will hardly ever be recorded. The judicial attitude is illustrated by the
case of Mangwera28. The Court of Appeal here held that while there is no
statutory provision invalidating a conviction on a capital charge of an accused
person's own plea where it does amount to an unequivocal admission of guilt, it
is generally inadvisable particularly where the accused does not speak English
for the trial judge to accept a plea of guilty on such a capital charge. Again in
Chacha29, the Court of Appeal said there was no general rule that a plea of
guilty should not be accepted, in a capital case but precautions are necessary.
The words which an accused used in plea should be recorded in a form which
will satisfy an appeal court that the accused fully understood the charge and
pleaded guilty to every element of it unequivocally.30 The word 'guilty' should
not be used in recording a plea unless it is actually used by the accused in which
case the record should show that the accused spoke in English.31
A plea of guilty when recorded, does not rank as a conviction until the accused
is sentenced32. If there are various counts, and he pleads guilty to one or more
of them, the proper course for a judge is to allow the count to which he has
pleaded guilty to remain on the file and not proceed to sentence33.
c) Option of Silence
28
29
30
31
32
33
This is dealt with under section 280. Under this provision, there are two
options, namely;
(i)
(ii)
d) Objection to Jurisdiction
An accused, person may claim want of jurisdiction on various grounds.
(i)
(ii)
Time limit; while there is no time limit for a criminal prosecution, certain
statutes impose limits e.g. Sedition case to commence within 6 months in
Kenya (section 58 of the Penal Code)35.
(iii) Diplomatic Immunity; pursuant to the Privileges and Immunities Act (Cap
179) diplomats are immunised from prosecution unless the accrediting
country or body waives the immunity.
(iv)
34
35
Children under the age of 8 years are not to be held liable for alleged
offences (section 14(1) of the Penal Code). Those under twelve years are
not criminally responsible for any act or omission unless it is proved that
at the time of doing the act or making the omission he had capacity to
know that he ought not to do the act or make the omission. A male under
the age of twelve years is presumed to be incapable of having carnal
knowledge.
(vi)
Judges and Magistrates being Judicial officers are exempt from Criminal
proceedings in respect of exercise of their judicial powers (section 15 of
Penal Code, section 7 of Magistrates Courts Act Cap 10 and section 46 of
the Judicature Act Cap 8).
(vii) Presidential Immunity; the President is not above the law as often
bandied. All he enjoys is immunity as granted under section 14 of the
Constitution. Indeed, even if such criminal proceedings were brought
against him while he still holds the office, he has the power of pardon; a
prerogative which he and he alone can exercise, and nothing should, stop
him from pardoning himself; a case of indivisible authority.
(e) Demurrer
Demurrer is an objection to the form or substance of a charge, as not amounting
to an offence known to law. It is a rare plea which even in England as Lord
Parker C J said in Deputy Chairman of Inner London Quarter Sessions36
would soon become moribund. In Kenya, no recorded case of this plea is known
to the writer. Indeed, and not surprisingly, it has not been provided, for
expressly in the Kenyan Criminal Procedure Code.
36
37
38
39
(1948) 15 EACA89.
Salim Bin Karama (1 951)18 EACA 304.
Loizeau (1956)23 EACA 566.
Page 190 of 382
(h)
Pardon
The President wields the prerogative of mercy and may grant a free or
conditional pardon to a person convicted, of an offence, under section 27 of the
Constitution. Section 279(b) recognises the plea and. is a bar to further
proceedings.
E.
40
(1964)EA 111 Supreme Court of Kenya decision; Sir John Ainley, C..I & Wicks).
Page 191 of 382
"If an accused stands before the court dumb, and apparently without
comprehension..., the court before proceeding' with the trial should consider
whether there is reason to believe that the accused is of unsound mind. There
are, of course, practical difficulties in deciding whether the accused is playing
the fool or not. It may be quite obvious that he is playing the fool. If that is so
the court is entitled, having entered a plea of 'not guilty', to proceed with the
trial. In most cases, however, it will be wise to have the accused, examined by a
doctor even if this entails considerable delay. A doctor, without much difficulty,
will be able to ascertain whether the accused is deaf or not and though it will be
more difficult, whether the accused, is rational. It may of course be possible,
without medical evidence to1 say that the accused is deaf, but is of perfectly
sound mind, in which case, as in a case where a doctor has said that the
accused, is deaf but sane, inquiry will turn on whether the accused can be made
to understand the proceedings. In such cases some such witness as the chief
who was called in the present case, should be examined at the outset. If on
hearing a witness of that kind the court finds that intelligence can be conveyed
to, and received from, the accused by means of signs there is no reason, if the
communication is adequate, why the accused should not be tried through the
medium of sign language. It will be a question of degree in each case. The
question in each case may be stated in this way taking into account the nature
of the charge and the evidence likely to be adduced, are the means of
communication available adequate to ensure that the accused will have a full
and proper understanding of the allegation made against him and of what Ac
prosecution witnesses are saying about him? Further, can the rights of the
accused be adequately explained to him and can he avail himself of those
rights? If in these respects the means of communication with the accused are
adequate, the trial may proceed in the normal way the person chosen to
communicate by signs with the accused being sworn in much the same way as
an interpreter is sworn.
Page 192 of 382
What emerges from the above is that the Trial Court shall consider the
following:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
For clarity the attitude of the Court of Appeal regarding a finding of a judge in
any of the above-situations vis--vis an accused's right to appeal against it is
"In the experience this court has always entertained such appeals as
key are orders to the prejudice of an appellant and on the material,
on record, we dismiss the present one".
The court then complied with section 166(6); made a special report to the
Minister for transmission to the President that he upon reading the same, may
recommend that he be discharged or otherwise- dealt with.
The court's duty in cases of Plea of guilty in murder was dealt with in the
case of Tomasi Mufumu , the court said at Page 627 that:
41
"It remains to say that it is very desirable that a trial judge, on being
offered a plea which he construes as a plea of guilty in a murder charge,
should not only satisfy himself that the plea is an unequivocal plea, but
should satisfy himself also and on record that the accused understands the
elements which constitute the offence of murder (R V Yonasani Egalu
[ante]) and understand that the penalty is death. This should be done (and
recorded) notwithstanding that the accused may be represented by an
advocate."
In such a plea of guilt, the prosecutor usually outlines the facts which evidence
is customarily given unsworn, unless the accused challenges its truth in which
case it is given on oath42.
42
43
44
custody.
Every accused person is entitled to be defended by an advocate of his
choice (section 77(2)(d) of the Constitution
H.
45
R V Obau 15 KLR 107 and section 298 of Criminal Procedure Code (Cap 75)
Page 196 of 382
advocate. He should also tell him that he will have the right at a later stage to
give evidence on his own behalf and call witnesses. That is, it must be
explained to him how the trial will be conducted. The prosecution witnesses
shall be subject to cross-examination by the accused. Opportunity is sufficient,
the accused need not actually cross-examine them. The prosecution may reexamine only on matters raised in cross-examination.
In accordance with section 302, the prosecution shall not, without leave
of court reasons for which shall be recorded, adduce evidence on a statement
which was not presented at the committal proceedings, unless the accused or his
advocate has received reasonable notice in writing of such intention. As to what
notice is reasonable is a question of fact for the judge to decide. In such cases, a
copy of a statement relating to the additional evidence shall be annexed to the.
notice. Any statement made by an accused person at the committal proceedings
may be adduced as evidence without further proof thereof. When the
prosecuting counsel has called all his witnesses and adduced all other evidence,
he informs court that his case is closed. After close of prosecutions' case, if the
judge, considers that there is no sufficient evidence that the accused committed
the offence, and after hearing any argument preferred by the prosecution of
defence, he shall record a finding of 'not guilty' (section 306(1)).
At any stage in the course of the prosecution's case, a question of law
may arise. If this comes up, a trial within a trial may have to be conducted. This
is an exception to the rule that assessors have to sit throughout the trial and hear
all evidence. When there is an argument as to admissibility of some evidence,
the practice is that the assessors are asked to retire. It is illustrated in the case
of R v Mathenge s/o Muriemo46. The proper procedure stated in the case of
Kinyori s/o Kiraditu v Regina47, that: If the defence is aware before the
commencement of the trial that such an issue will arise, the prosecution should
46
47
then be informed of that fact. The latter will therefore, refrain from referring in
the presence of the assessors to the statement concerned or even to the
allegation that any such statement was made, unless and until it has been ruled
admissible. When the stage is reached at which the issue must be tried the
defence should mention, to the court that a point of law arises and submit that
the assessors be asked to retire. It is important that, that should be done before
any witness is allowed to testify in any respect which might suggest to the
assessors that the accused had made an extra-judicial statement. For example,
an interpreter who acted as such at the alleged making of the statement should
not enter the witness box until after the assessors have retired. The assessors
having left the court, the state, upon whom the burden rests of proving the
statement to be admissible, will call its witnesses, followed, by any evidence or
statement from the dock which the defence elects to tender or make. The Judge
having then delivered his ruling, the assessors will return. If the statement has
been held to be admissible, the state witnesses to whom it was made will then
produce it and put it in in writing, or will testify as to what was said if it was
oral. The defence will be entitled, and the Judge should make sure that the
defence is aware of its right, again to cross-examine that state witness as to
circumstances in which the statement was made and to have recalled for similar
cross-examination the interpreter and other state witnesses who have given
evidence on the issue in the absence of the assessors. Both in the absence and
again in the presence of the assessors, the normal right to re-examine will arise
out of any such cross-examination.
When the time comes for the defence to present its case on the general
issue, if the accused elects either to testify or to make a statement from the dock
thereon, he will be entitled also to speak again on any questionable
circumstances which he alleges attended the making of his extra-judicial
statement and to affirm or reaffirm any repudiator retraction upon which he
seeks to rely. Indeed, if the accused desires to be heard in his defence either in
Page 198 of 382
the witness box or from the dock he will not be obliged to testify in chief or to
speak, as the case may be, to anything more than the matters touching on the
issue of admissibility; but, once he elects to testify, however much he then
restricts his evidence-in-chief he will he liable for cross-examination not only to
credit, but also at large upon everything in issue at the trial. The accused will
also be entitled to recall and examine any witness of his who spoke to the issue
in the assessors' absence, and to examine any other defence witnesses thereon..
The broad principle underlying that procedure is that the accused is
entitled to present, not merely to the Judge but also to the assessors, the whole
of his case relating to the alleged extra-judicial statement; for the Judges' ruling
that it is admissible in evidence is not the end of the matter; it still assesses the
value or weight of any admission or confession thereby disclosed and also the
accused is still at liberty to try to persuade them that he has good reason to
retract or repudiate his statement.
After the Prosecution closes its case the defence will. begin. The judge
will inform the accused of his right to address court, whether personally or by
his advocate. He shall, be informed of his right to give evidence on his own
behalf, or to make an unsworn statement, and to call witnesses in his defence.
The Judge will require the defence to state whether it intends to call any
witnesses as to fact other than the accused person himself; and so informed, the
Judge shall record the fact (section 306(2)). If the accused opts not to give
evidence or make an unsworn statement, or to adduce evidence, the prosecution
may sum up the case against the accused person. Should he opt to give evidence
or make an unsworn statement, the court shall call upon him to enter upon his
defence (section 306(3)). The accused or his advocate may then address the
court. It is wrong for an advocate to inform court that the refusal of an accused
to adopt a given option is against, his advice48. The accused may now give
evidence on his own behalf. He may call his witnesses in the order in which he
wishes, who are numbered PWI, PW2 etc. He or his advocate may examine the
witnesses. The prosecution may cross-examine them.
At the trial no alibi evidence can be adduced unless details thereof, and
the names and addresses of any witnesses in support,thereof, were provided or
given in writing to the court and the prosecution. It may only be allowed with
leave of court reasons for which, shall be recorded (section 307(2)). Under
section 308 the accused person shall be allowed to examine any witness not
previously summoned to give evidence at the trial, if that witness is in
attendance. Under section 309, whenever evidence has been given by the
defence introducing new matter which the prosecution could not foresee, the
prosecution may be allowed to call evidence in rebuttal. In Popat V R49,
evidence in rebuttal was led by the prosecution after the accused had given
evidence, but before all the defence witnesses had testified. The Court of
Appeal held that,
At the close of the defence, the parties may address the court. The
respective rights of address by the prosecution and the defence may be
confusing, and needs special emphasis. The issue was elucidated, by a strong
bench of the East African Court of Appeal in Rex v Wamasuya s/o Bola50.
48
49
50
(Coram: Sheridan. Joseph (CJ-K), Norman Whitley (CJ-U) & Henry Webb (CJU). In the said case the appellant elected to give evidence but called no
witnesses. After that, Crown Counsel claimed the right to address court. The
court held that Crown Counsel was entitled, to sum up the case after the
accused had given evidence and that then the advocate for the defence was
entitled to address the court. It said that the effect of section 306(1) is that if,
after hearing the evidence for the prosecution, the court considers that there is
no evidence that the accused committed the offence, it shall hear the advocate
for the prosecution then the advocate for defence, and shall then (if still of the
same opinion) record a finding of not guilty. Section 306(2) deals with a
situation where the court considers that prosecution evidence does disclose a
case that calls for an answer, it shall inform the accused of his right:
and shall ask him if it is intended to exercise any of such rights. Section 306(3)
states in part that if the accused person says that he intends to give evidence or
make an unsworn statement or to adduce evidence, the court shall call upon him
to enter upon his defence. Section 307(1) shows what is meant by the accused
"entering upon his defence"; it says
"The accused person or his advocate may then open his case
stating the facts or law on which he intends to rely and making
such comments as he thinks necessary on the evidence for the
prosecution. The accused person may then give evidence on his
own behalf or make an unsworn statement and be or his
advocate may examine his witnesses (if any), and after their
Page 201 of 382
Section 306(2) is not, perhaps, quite so clear as it might be: its obscurity
is, we think, due to the fact that it seeks to provide compendiously for two, or
possibly three, different sets of circumstances. The first arises where, for
example, the accused is content to accept the case for the prosecution as it now
stands, but proposes to submit either that the facts proved do not establish the
offence charged, or that the evidence for the prosecution has been shown by
cross-examination to be unreliable, or that it is insufficient, say for lack of
corroboration in a case in which the law requires corroboration. In that event, he
will elect neither to give nor to call evidence, nor make a statement setting out
his version of the facts. In those circumstances, the evidence being ex hypothesi
finished, the sub-section says that the prosecutor must now sum up the case for
the prosecution and then the accused, or his advocate, will enter upon which he
intends to rely and making such comments as he thinks necessary on the
evidence of the prosecution (307). The second set of circumstances arises when
the accused, not accepting the version of the facts put forward by the
prosecution, elects to give evidence himself but has no other evidence to call. In
such a case, but for section 161, the procedure would have been that he, or his
advocate, would open its case, he would give evidence and be cross-examined
and re-examined, and his advocate would sum up his case (section 311). But
section 161 says that giving of evidence by the accused person shall not give
the prosecution (unless he is the Attorney-General or Solicitor-General in
person) a right of reply. In our opinion the effect of this is that so far as regards
the procedure governing the order of addresses; but only to that extent the case
must be treated as if no evidence at all had been given. The procedure therefore
will be that laid down by section 306 and 307: the court will call upon the
accused to enter upon his defence (306(3)) i.e. his advocate will open his case
Page 202 of 382
and the accused will give evidence and be cross-examined and re-examined. All
that is altered is that now, by virtue of the last sentence of 306(3), the
prosecutor will sum up the case for the prosecution and, finally, the advocate
for the accused will sum up his case (307(1). In the third possible set of
circumstances, when the accused, neither gives nor calls evidence but merely
makes an unsworn statement the procedure will be the same save that, of
course, the accused may not be cross-examined upon his statement. It is true
that the code does not in terms provide for this eventuality, but if the fact of the
accused, giving evidence does not deprive him of the last word, it is
unreasonable to suppose that his making an unsworn statement (which is
regarded as something less) would have- that effect.
Similarly, the code fails to provide, expressly for the right of the
prosecution to sum up when the accused elects to make an unsworn statement.
Nevertheless the logical inference from section 306 is that the prosecution must
have this right, for if the prosecution may sum up the case for the prosecution
when accused elects not to exercise any of his rights; 'afortiori' he must have
that right when the accused elects to avail himself of one of them and to make
an unsworn statement, This is in accordance with the practice in England (See
R vs Sherriff51 in which Darling J. held that the prosecution was entitled to sum
all the evidence in the case after the prisoners had made unsworn statements
from the dock, and that their counsel should then reply.
A.
When the Court considers that there is no evidence that the accused
committed the offence 306(1);
51
1. Prosecution opens
2. Evidence for prosecution
3. Prosecution sums up
4. Defence addresses
B.
When the Court Considers that there is evidence that the accused
committed the offence 306(2);
1.
1. Prosecution opens
2. Evidence for prosecution
3. Defence, opens
4. Evidence or statement of accused
5. Evidence for defence
6. Defence sums up
7. Prosecution replies
II
Accused elects to call witnesses but not; to give evidence himself nor
make an unsworn statement.
(Procedure as in I but omitting 4)
Ill
1. Prosecution opens
2. Evidence for prosecution
3. Prosecution sums up
4. Defence opens case
N/B; If Attorney-General or Solicitor-General in person, 3 & 4 are
reversed: Section 161.
It will be noted, that the prosecutor has the last word in the second and
fourth circumstances as above, but not in the first and third. In the case of
Mbebi v- R52, the prosecutor addressed the court at the close of the case
notwithstanding that the defence did not call any witnesses. This was held by
the Kenya Supreme Court to be contrary to section 161 and 310 of Cap 75. In R
v- Malakwen Arap Mute53, the Kenya Supreme Court held that:
For the reason that as an accused person must be present in court during the
whole of the hearing he should give his evidence first and not have the
advantage, of listening to his own witnesses give evidence. This is the usual
practice but it is submitted that the defence, should be given a discretion in such
circumstances.
52
53
(1957)EA426.
(1949) 23 (2) KLR 132
Page 205 of 382
I. SUMMING UP TO ASSESSORS
In trials with the aid of assessors54, at the conclusion of the evidence and
the address on behalf of the prosecution and the defence the judge may sum up
to the assessors the evidence for the prosecution and the defence (section 322(1)
Criminal Procedure Code). The Criminal Procedure Code uses the word "may"
and therefore imposes no statutory obligation, on the Judge to do so; but this
ought to be so. In Washington s/o Odinga -v- Regina55 the trial Judge did not
sum up the evidence to the assessors or direct them on law. The court held that
while there is no statutory obligation on the trial Judge to sum up the evidence
to the assessors, it is a sound practice to do so except in the simplest of cases. It
has been stated by Edwards C.J. in R v Bazilio Sentamu56 that in a trial with
assessors all that the Judge may do is to sum up the evidence, and not bombard
them with an elaborate lecture on common law but this view is not completely
correct, for to be able to give a well reason opinion, the assessors would need a
basic understanding of the relevant law. The better view is that furthered in
Andrea s/o Kulinga v R57 to the effect that if a Judge chooses to sum up to the
assessors, he ought to sum up both. the facts and the law in relation, to the facts.
The court said:
54
55
56
57
(1957)EA426.
The role of Assessors is discussed in detail in Chapter Twelve (infra). In 'this section the role of
assessors is discussed only to the extent of giving clarify and completeness to the trial process in the
High Court.
(1954)EACA392.
(1936.51)6 U.L.R 281.
Page 206 of 382
In the same case, the court held that failure to sum up is not necessarily fatal.
A minor and non-material misdirection (in summing up) does not justify
interference with conviction and is curable under section 382 of Criminal
Procedure Code if it did not cause any prejudice to the accused: this was held in
Mehar Singh Bensel V R58. In this case, the appellant, a surgeon, was
convicted of manslaughter and appealed on grounds of alleged misdirection in.
the summing up and the, irregular procedure of the trial Judge in formulating
specific questions for the opinion of the assessors instead of taking their
opinions on the case generally, which was contrary to [section 322] of Criminal
Procedure Code and to natural justice.
Also, in summing up, the Judge may direct assessors as to benefit of doubt
being in favour of the accused, but an omission so to do is not fatal to a
conviction - because the decision centres on the Judge and he must be presumed
to know the relevant law59. However, a failure to direct the assessors as to any
aspect of the defence has been held to be fatal to a conviction60 .
(1959)EA813.
R vs Jack Jezelani (1947)14 EACA 70.
Wafula s/o Waniamira v R (1957) EA 498.
These rules were made pursuant to section 201 of Criminal Procedure Code Vide L.N. 344 of 1958
Page 207 of 382
(i)
a judge of the High Court shall not be required to sign the evidence
of each witness or to inform each witness that he is entitled to have
this evidence read over to him;
(ii)
(1)
the record of the trial was incomplete and did not contain all the
evidence.
(2)
the judge took an undue part in the conduct of the case and, in
consequence, the case for the appellant was not properly and fully put
before the court.
(i)
on the facts disclosed on the record, it was impossible for the court to say
that: there had been a fair trial or that the appellant had a proper
opportunity to put his defence to the court.
(ii)
if the course of a trial is such that the accused and his counsel are left
62
(1957)EA575.
Page 208 of 382
with a reasonable feeling of grievance of this king, the trial has been less
than satisfactory, and if the grievance is founded, on excessive
interruptions and interventions by the court the rule that justice must be
seen to be done has clearly not been observed.
The actual nature and function of assessors in a High Court Criminal trial is not
defined by the statute. In R v Gusambizi Wasonga66, the court observed that in
the exercise of any functions of the assessors, the court is always to apply the
test of what; is fair to an accused person, with regard to the cardinal principles
of natural justice. It was here said dial the purpose of a judge to sit with
63
64
65
66
Customs no longer play the integral role that it used to play when we had native
or African Courts. In any event, custom is hardly relevant to cases triable by the
67
68
High Court, unless perhaps one brings the issue of witchcraft and claims grave
and immediate provocation therefrom - in a charge, of murder. Yet even in such
cases, such defence is hardly sustainable, Moreover, whether there is
provocation or not would be a question of pure law for the Judge to rule on.
Consequently, the view that assessors are mainly instrumental on questions of
customs is at best archaic, and cannot justify having assessors in a criminal trial
in the High Court. Their chief role then would be more to do with open justice
and participation by the citizenry in the administration of justice. It is a salutary
gesture to the adage of justice being done and being seen to be done. And in
furtherance of their primary role; that they help the Judge arrive at justice,
assessors are allowed to put questions to the witnesses through or with the
permission of the Judge (section 174 of the Evidence Act).
The assessors must be present throughout the trial. In Mohamedi &.
Another v R69, the trial commenced with four assessors, and was adjourned to a
date 9 months later. At the resumed hearing, only two of the original four
assessors were present, and the trial proceeded with the two. In allowing the
appeal, the court held that it was mandatory that a new trial be held if two or
more of the assessors are absent. A trial conducted without assessors was
declared a nullity in R v Abdulla Mali70. If one assessor is absent in the course
of the trial, the trial may proceed with the other two. If, however, two or more
are absent, a new trial must be conducted with the aid of fresh assessors (section
298(2)). In R v Assa Singh71, it was held that even if an assessor is absent
merely for a day during which only evidence of a formal nature is given, he
cannot resume and give his opinion on the case. Where an assessor is
disqualified on grounds of personal interest, another must be selected to take his
69
70
71
(1973)EA 197.
(1920-29)3. U.LR.51. See also R v Obau 15 K.L.K 107 & section 298 of Cap 75.
(1937)4 EACA 41.
Page 211 of 382
place. It was so held in Laurenti Busolo s/o Mukumba v R72', where it was said
that:
(a)
(b)
72
(1957)EA298.
Page 212 of 382
L. CONCLUSION
Although it is clear that the substance of a judgment is fundamental, the
form is important in lending credence to the substance of equal importance is
the procedure leading to the delivery of the judgment which must be followed
meticulously.
CHAPTER TWELVE
ASSESSORS
A. INTRODUCTION
The assessor system was retained after independence. The value of assessors
was explained by Lord AA in Dhalamini vs- King that;
... the duty of an assessor is not simply to aid, it operates and
is no doubt intended to operate as a safeguard to natives
accused of a crime and a guarantee to the native population
that their own customs and habits were not misunderstood.1
The assessor should occupy a central role in criminal justice, not only because
what he says conforms more to the wishes of the community, but also because it
is more acceptable to justice.
The ambivalence pervading the assessor system has survived the rigours
of independence. For example the legislature has unconsciously or perhaps
intentionally left the actual role of an assessor in criminal trials undefined. The
scantiness of the statutory provisions has left a large area of uncertainty which
has been filled but only partly by the rulings of the courts over the year.
In appreciating the procedural law as it relates to assessors, its propriety
and place in the administration of criminal justice, various questions must be
answered; viz:
(i)
(1942)A.C. 583.
Page 214 of 382
(ii)
If not do we abandon the whole system and replace it with the jury
system?
iii)
If we are to retain the assessors, what role should they play in the
criminal justice system and what reforms are necessary to facilitate this
role, and
(iv)
In all cases civil and criminal to which natives are parties every court,
(a)
(b)
And shall decide all such cases according to substantial justice without
undue regard to technicalities or procedure and without undue delay2."
The wording of this order left room for the Africans to participate in the
administration of justice. The fact that the courts were to be guided by the
native law meant that few competent Africans would be consulted to give their
opinion on the matters in question.
Another line that can be followed in tracing this history is with British
This brief history forms the foundation of the system of assessors as we know it
today.
C.
In the eyes of the law an assessor is the epitome of the reasonable man, the
'man' in the street. This is only a restatement of a renowned colonialist E.W
Park who said of assessors:
This definition has been criticised but the critics stand corrected. The definition
above does not literally mean that a person who serves as an assessor should be
an expert in the strict meaning of the word. All it means is that the person who
serves as an assessor should stand in such position as to know, not through
severe intellectual exercise or by protracted thought, but by mere adaptation of
the matter in question. It is for this reason that assessors are normally chosen
from the ordinary people.
The role of the assessors should be seen from the perspective that they
(assessors) ought to have their roles defined in very clear and straight forward
terms. The English legal system has extolled the value of the jury system.
Michael Zander5 quoted Lord Denning regarding the high esteem in which the
jury is held in England;
4
5
On the other hand, in other countries where the assessor system is used, Kenya
included, they have stubbornly stuck to the colonial dogma that the opinion of
the assessor is not binding on the judge which in effect has shut the mass
participation in the administration of criminal justice. The present legislation
was adopted from its colonial counterpart. The Kenyan 'independent' legislature
has failed to consider the social-economic conditions under which the laws
governing assessors were passed.
shall be with the aid of assessors", the word shall make it compulsory for the
High Court to sit with the aid of the assessors. A High Court's decision sitting
without assessors will be reduced to a nullity. In Rex vs- Yowasi8 it was held
that a court sitting without assessors where they were required by law would be
leaping the jurisdiction to try such cases. This was infact a restatement in the
very words by the East African Court of Appeal in R -vs- Abdaka Mali9 and the
court strongly reiterated their earlier statement that where a court sits without
assessors where it should have done so, the trial is a nullity.
The above is seemingly a very positive move towards the direction of
recognising the central role of the assessors. However, this is watered down by
section 322 of the Criminal Procedure Code which provides that the judge, in
giving his verdict, shall not be bound to conform to the opinion of the assessors.
This in effect means that the judge can ignore the opinion of the assessors.
Sir Henley Cousley, a prominent colonial judge in Ghana has argued that the
ends of justice are adequately catered for in that although a judge is not bound
to accept the opinions of the assessors, he has the duty to sum up to them10.
With the greatest of respect, these sentiments betray the intentions of the
learned judge. It is no stretch of imagination that since the official language of
the Court is English, only a few will understand and likewise even fewer will
qualify to serve as assessors. Even for those who can understand English they
have an additional problem. The lawyers' language is unfamiliar to them and the
legal jargon leaves them more mesmerized than informed. Why then should one
expect a rational assessment from a set of facts that have not been understood?
It can therefore be asserted that the present system caters for 'spectators' and not
assessors as contemplated by its originators.
8
9
10
E. SELECTION OF ASSESSORS
In Kenya, the law provides that all persons between the ages of twenty-one and
sixty years are eligible to serve as assessors11. Unlike the jury system, eligibility
does not provide for any literacy or property qualifications (under the jury one
should own property). The once cherished notion that assessors should come
from the same place as the accused has long been dispensed with and for good
reason. Given that customary law has been hacked to near nothing by section
3(2) of the judicature Act, and that it has been replaced by English law, the need
to have the assessor coming from the permanent domicile of the accused can
safely be abandoned. But the Chief Justice has discretionary powers to make
rules pertaining to areas within which a person may be summoned to serve as
an assessor and he also has inherent power to regulate the selection and
summoning of assessors12.
The fact that assessors should be common people is amply demonstrated by the
exclusion of certain categories of persons from serving as assessors. Section
266 excludes the following persons from serving as assessors;
(a)
(b)
(c)
(d)
(e)
(f)
11
12
(g)
(h)
(i)
(j)
(k)
(a)
Permanent Secretaries.
(b)
(c)
(d)
(e)
(f)
(g)
(h)
The law requires that the Registrar of the High Court, at least seven days before
13
the day which may from time to time be fixed for the hearing or the holding of a
session of the High Court, do send a letter to a Magistrate holding a subordinate
court of first class having jurisdiction in the province or the district in which
such sessions are to be held requesting him to summon as many persons as
possible to the judge who is to preside over the session needed for trials with
the aid of assessors at the said session14. The judge is to select three out of those
summoned to serve as assessors as required by section 263 of the Criminal
Procedure Code. The assessors are to be summoned in writing and their
attendance required in the summons to be at a stated place and time 15.
The High Court may for a reasonable cause excuse an assessor from attendance
at any particular session and may at the conclusion of the trial direct that an
assessor who served at such trial shall not be summoned to serve again as an
assessor for a period of twelve months or for such longer period as the court
deems fit16.
The above shows that there is no limitation for the period in which a person
may serve as an assessor. It is possible that one may continue service for as
long as the court wishes. The risks inherent in such a provision need no
emphasis. By continuing to serve as an assessor, a person ceases to be a
common man. By adaptation and out of long stay in the court he becomes
adequately showered with virtues similar to those of the judge. More serious is
the fact that he becomes more susceptible to corruption.
It is noteworthy that if one who has been summoned to serve as an assessor fails
to attend without reasonable cause, he is liable to a fine 'not exceeding four
hundred shillings17.
Not all persons summoned to serve as assessors qualify to serve. There may be
14
15
16
17
preliminary objections on the ground that an assessor knew the facts or that he
is related to the accused or to the complainant. There is no express provision in
the Criminal Procedure Code requiring that an accused be given a chance to
object to any of the assessors from so serving but it was stated in Ndirangu vsR18 that objection to a particular assessor on good grounds is clearly a sound
practice. The appellant in this case was convicted of murder. Throughout the
trial he chose to remain mute and took no part whatsoever in his trial. On appeal
he argued that the wife of one of the assessors at his trial was the sister of the
deceased's wife and he complained that this had prejudiced him. The court
concerned itself with grounds on which the objection to an assessor is made. If
an injustice will be occasioned by an assessor sitting with the judge, such a
ground is feasible and he should be dismissed. The proper course to be taken
when objection has been taken by an accused was discussed in the case of
Andiazi vs- R19. The trial judge should inquire into the allegation in a kind of
trial within a trial. If he finds that the complaint is unfounded he may order the
trial to proceed. If the complaint is valid he should adjourn the hearing to pave
way for another assessor to be summoned.
A yearly list is made which shows the names and addresses of assessors. Where
a session which requires assessors is to begin, the assessors must always be
there20. In Kenya past experience shows that assessors chosen for trial were of
the same ethnic group as the accused. This rule has been relegated to the
periphery except in cases of provocation where the assessor should come from
the same ethnic group as the accused21. The court has the discretion to discharge
any assessor who has been objected to or any assessor who admits that he is
related to the accused or knows the facts or is in any way connected to the
accused.
18
19
20
21
(1959)EA875.
(1967)EA813.
Section 262 Criminal Procedure Code (Cap 75).
As per Ainley CJ in R -vs- Wilkin (1964) unreported.
Page 223 of 382
Admittedly, the law on this subject is not adequate. But there should be penal
provisions for those assessors who knowing the facts refuse to disclose so
during or prior to the trial.
Under section 265(2), the CJ is given a discretion to make rules regulating the
area within which a person may be summoned to serve as an assessor and also
power to regulate the selection of assessors. No such rules have been made so
far. For that reason a judge's discretion in selection is absolutely unfettered, and
although it must be exercised judiciously, failure to take into account the race of
the accused cannot be said to be an improper exercise of that discretion. That
was the ruling in the Republic -v- W. Y. Wilken22. In the said case, the accused
was charged with murder of an African by confining him in a box with
insufficient air until he could be handed over to the Police. Counsel for the
accused objected to the Panel of Assessors submitting that the practice of
selecting assessors of the same race as the accused should now extend to the
accused. He submitted further that the judge should exercise his discretion in
the accused person's favour as the court will always apply the test of what is fair
to an accused person keeping in mind the principles of natural justice. The court
observed in dismissing the objection that although the practice had been to try
Asians with the aid of three Asian Assessors and Africans with the aid of three
African assessors,
"all this has not conferred upon an accused of any race the right
to be tried with the aid of assessors exclusively of his own race,
nor has it, to my mind, established a principle that it is necessary
just and essential that a man should be so tried. It would be
wrong, I think that any such principle should be established...
Certainly I think the Judge's powers of selection should not be
22
(1965)EA286
Page 224 of 382
It was thus ordered that the panel comprise two Europeans and one African as
selected earlier.
Having summoned assessors and none having been disqualified under any of
the foregoing grounds, the Judge shall select three from the list of those
summoned in accordance with sections 263 and 297 of the Criminal Procedure
Code.
F.
The actual nature and extent of the functions of the assessor in criminal trials in
Kenya is not adequately if at all, defined by the statute. However, courts have
tried to fill in the gaps left by the legislature and in the Gusambizi Wesonga
Case24 the court observed that in the exercise of any functions of assessors, the
court is always to apply the test of what is fair to an accused person keeping in
mind and considering the principles of natural justice.
23
24
The session should start with three assessors but the absence of one does not
necessarily invalidate the trial. For example in Assah Singh -vs- R25 the
appellant was tried for attempted arson and convicted by a judge sitting with
three assessors. During the trial one of the assessors was absent for one day
during which only evidence of a formal nature was taken, he then resumed
attendance and was present for the remaining period and gave his opinions with
the other assessors which was accepted. At the end of the hearing and within the
ambit of section 322 the judge may sum up the evidence for the prosecution and
for the defence and whereupon he will require each of the assessors to state his
own opinion orally. The word "may" makes it discretionary on the judge to sum
up the evidence yet it was infact well stated in Washington s/o Odindo -vs- R26
that it is very sound practice which is almost invariably followed by the judges
except in very simple cases to sum up for the assessors. Going by the authority
of Andrea Kulinga vs- R27 the rule is that if a judge chooses to sum up to the
assessors he must sum up both the facts and the law. The court further
observed:
"The opinion of the assessors can be of great value and
assistance to a trial judge but only if they fully understand the
facts of the case before them in relation to the relevant law. If
the law is not explained and attention not drawn to the salient
facts of the case, the value of the assessors opinion is
correspondingly reduced".
25
26
27
28
(1937) 4 E.A.C.A 41
(1954) 21 E.A.C.A. 392
(1958) EA 684
(1957) EA 498
Page 226 of 382
The statutory provision is that assessors are to give their opinions orally and
individually. In practice such opinions should be given in open court. Since the
credibility of the assessors' opinion depends on reasons behind it, it has been
required that the assessors should give reason or reasons for their opinion. This
was in the case of Paulo Lwevola -vs- R29 where it was said that the reasons for
the opinion become even more relevant if the case goes on appeal. Although
section 322(1) requires a judge to record the opinion of each assessor, the Court
of Appeal in Francis Muzungu vs- R30 held that the irregularity of a judge in
failing to take the opinion of each assessor is not fatal unless it has occasioned a
failure of justice.
It is desirable that the judge should record his reasons for disagreeing with the
unanimous opinion of the assessors particularly where they have given good
grounds for their opinions. This was stated by the East African Court of Appeal
in Baland Singh -vs- R.31
the
(1943) 10 E.A.C.A. 63
(1958) E..A 192.
(1954) 21 E.A.C.A 209
(1957) EA. 298
Page 227 of 382
proceeding with only two assessors, the one having been disqualified on
account of personal interest. A retrial was ordered.
It is not fatal if the assessors consult before giving their opinion. Section 322(4)
allows for such consultations. This has been subjected to the scrutiny of the
court in Abdalla Omar -vs- R33. In this case, it was stated that there is nothing
wrong against the retirement of assessors for consultation. The court noted that
the practice is frequent in East Africa. It followed its earlier decision in R -vsMungu Atosha34 in which it was held that the retirement of assessors is neither
illegal nor irregular if after the retirement the judge obtains the individual
opinion of each assessor and records it. In the Abdalla Case, the court stated:
The opinion of the assessors should be taken on the general question of whether
the accused is guilty or not guilty as charged. The desirability of obtaining such
opinion was expressed in Selemani s/o Ussi -vs- R.36 The accused were tried
and convicted for murder. The assessors gave their opinion and did not state nor
were they asked to state specifically whether they considered the accused guilty
or not guilty as charged. On appeal, though this point was not the basis of the
appeal, the Court of Appeal noted that in addition to any other answers which
may be given, each assessor should state specifically whether he considers the
accused person to be guilty or not guilty on each count on which he is required
33
34
35
36
(1958) EA725.
(1938) EACA 143.
(1958) EA 725 at 728 para. E.
(1963) E.A. 442.
Page 228 of 382
to state his opinion. In Lamututu Mokalya vs- R37 the opinion of the assessors
was not taken on the general issue as to guilt or innocence of the accused. It was
said that when the opinion of assessors is taken in the form of answers to
specific questions they must also be asked to state their opinion on them as a
whole and on the general issue as to the guilt or innocence of the accused.
However, questions to assessors should be confined to matters on issues
peculiarly within their knowledge and must be given an opportunity to express
views on the case generally.38
Although it is required that assessors should sit throughout the trial, they must
be absent during "a trial within a trial". The rationale behind this is that the
assessors are common men and should only hear that which is strictly necessary
and should avoid any circumstance that may tend to create any bias.
G. OPINION OF ASSESSORS
After the summing up the Judge shall then require each of the assessors to state
his opinion orally and shall record each opinion. The case of Mehar Singh
Bansel39 is authority that while section 322 mandates the Judge to take the
opinion of the assessors generally on the case as a whole, there is no objection
to specific questions being put to the assessors either before or after a general
opinion on the case has been obtained. If they so wish, the assessors may retire
for the purpose of considering their opinions and there is nothing to prohibit
them from consultation during such retirement.40 When the assessors give their
opinion, it is desirable that they state their reasons.41 The Judge is not bound to
37
38
39
40
41
(1958) EA 706.
Rajabu Jalum -vs- R (1965) E.A 365.
(1959)EA813.
Abdullahi All vR (1958) EA.
R v Paulo Lwerola (1943)10 EACA 63.
Page 229 of 382
accept their opinions42. Where the assessors' opinion is divided, the Judge
decides the issue according to his own view, according each opinion due weight
and explaining why he adopts a given view.
Section 322(1) does not mandate assessors to give their opinions in open court.
All it does require is that such opinion be given orally and individually43.
However, it is submitted that there is much to commend the practice of giving
opinion in open court. In the Privy Council decision of Mahlikilili Dhalamini
& Others, the assessors gave their opinions in chambers. It was held that
assessors must give their opinions in open court: much as a Judge is required to
'give' his judgment and deemed required so to do in open court so should
assessors "give their opinions'. By virtue of section 261 of Criminal Procedure
Code which requires the practice of the High Court to be assimilated as nearly
as possible to the Courts of Oyer and Terminer and General Gaol Delivery in
England that should be the law in Kenya.
If the opinion of assessors is recorded in the form of specific answers to specific
questions in accordance with the decision in Mehar Singh Bansel, they must
also be asked to state their opinion on the case as a whole and on the general
issue as to guilt or innocence of the accused person44. And even after such
opinion is taken, a judge has power to hear additional evidence before
judgment; in such cases the opinions of the assessors can be taken again.45
After each assessor has stated his opinion, the Judge is required to give his
judgment; but in so doing, he is not bound to conform to the opinions of the
assessors. But in all cases where a trial Judge comes to a contrary finding on the
facts to the opinions unanimously shared by the assessor, it is good practice for
42
43
44
45
the Judge to state in his judgment his reasons for disagreeing with them46. This
is all the more important where the assessors have given reasonable grounds for
their opinions.47
H. ASSESSORS AS EXPERTS
That assessors' opinions are non-binding on the Judge begs the question. Are
assessor's opinions (therefore) no less or more than expert opinion as has been
argued?
In English law assessors imply expertise. The English Court of Appeal has
power to appoint any persons with 'special expert knowledge' to act as an
assessor where it appears to the court that such special knowledge is required 48.
In the Kenyan and East African context, we have seen cases decided by Judges
who have viewed assessors as no more than experts on matters of customs and
habits:- thus their presence in a criminal trial. This, as pointed out earlier is a
fallacious position because it was relevant in colonial days, was argued that
opinion of assessors are not admissible 'per se' as they are no more than expert
witnesses49. In R v Ndambere50 the court held that since an assessor talking on a
custom speaks as an expert, he must be cross-examined otherwise an accused
may be denied of the only opportunity to reassert his innocence. The contrary
view to this is furthered by R v Mutwiwa51 which holds that since the opinion of
an assessor on custom does not bind a Judge, there is no need for crossexamination or evidence in rebuttal.
46
47
48
49
50
51
For all it was worth, the status of assessors as experts has waned. It was
important in the pre-independence period when custom was an integral part of
Criminal law, and when the view on custom as proffered by assessors almost
always carried the day. Then, and for that reason, assessors' opinion as to a
matter of custom would justifiably occasion friction. Not so now. The purpose
of trial with assessors has in itself changed and their opinion on custom is not
called now. The issue of expertise or otherwise does not arise, for what
expertise is for in a treason or murder trial? Therefore, we cannot treat our
assessors as experts as in England and the pre-independent Kenya.
1.
The role played by assessors ought to be a noble one of aiding the court.
However, one sees from the cases decided with their help that the system is far
below the expected standards. Very often the judges disregard the opinion of
the assessors and proceed on the basis that the opinion of the assessors is not
binding on them. The procedure of selecting the assessors is also haphazard.
There is a gradual inclination that the concept of English type of justice is well
entrenched here and that all the people are conversant with it. This is not the
case. For example analysis of Paul Ekai -vs- R52 reveals the shortcomings. In
this case, two of the assessors were of the same ethnic group as the accused
while the third was an American. The presiding judge, Muli -J- found the
accused guilty of murdering Joy Adamson. The Two Turkana Assessors found
him not guilty while the American found him guilty. The judge would have
well quoted Thacker -J- in the Ogeda Case53 where the learned judge in this
rape case stated:
52
53
which
are
either
result
of
stupidity
or
pervasiveness."
"The reason is not that they did not see the facts; but both
assessors are not worthy the name of assessors as they think
in religion than in Justice".
(1964) EA 713
Page 233 of 382
1)
The system is characterized by the "give and take" practice. For instance
the requirement that all trials before the High Court shall be with the aid
of assessors is very welcome. However, when the same statute provides
that their opinions are not binding, their practiced role is devalued. This
"give and take" philosophy renders the workings of the system not only a
mere sham but a sickening illusion.
2)
The time for which one can serve as an assessor should be stipulated and
well limited so that the person is an actual assessor. Where one person
has served as an assessor for many sessions, he no longer represents the
reasonable man in the 'omnibus', but is now a semi-professional or even a
professional in the law and practice and well equipped with the 'virtues
inherent in the bench.
3)
That Magistrates also sit with assessors because this is where most cases
are handled.
4)
5) The legislature should reform the present legislation so that the role of
assessors is clearly redefined taking into account the Kenyan situation
both social, economic, and political as contradistinguished from the
colonial experience when legislation was adopted. In a nutshell the
system should be overhauled to give it practical relevance and currency.
Page 234 of 382
CHAPTER THIRTEEN
A. INTRODUCTION
The word 'insanity' was formerly a part of scientific nomenclature but today the
word is employed principally as a term of legal significance. So used it denotes
those conditions of mental disorder or defects which modify certain of the legal
relationships, rights and obligations of the afflicted person. The legal relations,
rights, privileges and obligations of persons assume the existence of a degree of
mental capacity sufficient to enable the person to manage his conduct and
affairs in the ordinary contingencies of life. When such capacity is lacking by
reason of insanity, the law relieves the insane person of certain obligations and
responsibilities both in criminal and civil law. Thus there is no single test of
insanity and therefore reference must always be made to the particular purpose
for which the inquiry is made. This explains the fact that even in respect of the
same rule, legal authority is sometimes sharply divided. Due to the centrality of
insanity with regard to criminal responsibility, the Criminal Procedure Code
provides the procedure to be followed when insanity is in issue. Insanity ought
to be understood in two facets. The first one is when it is alleged as a defence,
that is, the person was insane at the time of the act which now constitutes the
offence. The second is what has been termed in other jurisdictions as procedural
insanity, that is, where the person, though sane at the time of the act, no longer
Page 236 of 382
enjoys the same degree of sanity to such an extent as to render him incapable of
understanding the charge and or making his defence. The two facets are not
always separable. At times, a person's insanity persists all the way from
commission of the crime to the time of the trial. With the above in mind, it is
necessary to mention in passing the strength of the issue of insanity as
understood from our laws before delving into the substantive discussion.
It is against this background that the procedure in conducting this trial where
insanity is an issue must be predicated.
The procedure to be adopted when the issue of insanity arises in the course of a
criminal trial is provided by the Criminal Procedure Code under sections 162
167.
The code requires that when in the course of a trial or committal proceedings
the court finds that an accused person is of unsound mind thereby incapacitated
from making his defence, it shall inquire into the fact of unsoundness of the
accused's mind2. Should it come to the conclusion that he is of unsound mind, it
has to postpone further proceedings. Bail may be taken, but on condition that
there is enough security. However, if the offence is one for which bail may not
be given or there is insufficient security for the insane, the court is to order that
he be detained in safe-custody and make a report thereof to the Minister for
consideration by the President. Once such a report is made, the President upon
considering it may order that the accused be detained in a mental hospital or
any other place he deems suitable. The court is to issue a warrant to that effect
and such a warrant is enough authority for the detention of the accused until the
President makes a further order in the matter. However, the court which found
him incapable of making his defence may recall him as provided by the
Criminal Procedure Code3. It is not only under section 162 that a person may be
detained. Section 280 (of the Criminal Procedure Code) provides that if an
accused person, having been arraigned upon an information stands mute of
malice, the court will enter a plea of not guilty and thereupon proceed to
determine whether his mind is sound or otherwise. If found to be of sound mind
the case should continue but if his mind is unsound and he/she is consequently
incapable of making his defence, the trial is to be postponed and the accused
detained in safe custody and a report forwarded to the President for
consideration.
2
3
certificate to that effect to the Attorney-General4. This is done for the purpose
of enabling the court which had made a finding of the unsoundness of mind to
be advised whether the Republic wishes to continue with proceedings against
that person or not5. If the State wishes to continue with the proceedings the
person is brought before the court in which case section 164 applies as
discussed below. It must however be noted that if the State does not wish to
continue with the proceedings against the accused, the court is to make an order
to the effect that the accused person be discharged in respect of those
proceedings. This discharge is not to operate as a bar to any subsequent
proceedings against him on account of the same facts.
C.
RESUMPTION OF PROCEEDINGS
After the postponement of a trial the court may resume such trial if it is proved
to the satisfaction of the court that the accused is capable of making his defence.
The certificate forwarded to the Attorney-General under section 163 may be
tendered in evidence to show the accused's state of mind, but it must be signed
by the medical officer.6
The defence of lunacy may be adduced at a trial. If the defence is adduced at the
time of the committal proceedings and the accused appears to be of sound mind
at that time, the court, notwithstanding the fact that it is alleged that the accused
was insane at the time the act which is now charged was committed, shall
proceed with the proceedings and commit him for trial.7 What this means is that
lunacy at the time when the offence was allegedly committed is no bar to the
continuance of the committal proceedings provided that the person is sane at the
4
5
6
7
In like terms, if the defence is adduced at the trial to the effect that although the
accused person is presently sane he was insane at the time when the act charged
was committed, the court is by virtue of section 166 (Criminal Procedure Code)
supposed to make a special finding that he is 'guilty but insane'. That is done
only when and if the evidence so adduced would have warranted a conviction
but for the insanity. This special finding of guilty but insane forms another topic
of discussion later.
The procedure to be followed once such a finding has been made is also
outlined in the Criminal Procedure Code, but it is important before going into it
to consider how courts have exercised their role in not only interpreting but also
applying the law with regard to the special finding. A case in point is R -vsSaidi Kabila Kiunga.8 The accused was charged with unlawful wounding
contrary to section 228 of the Tanzanian Penal Code and was found guilty but
insane so as not to be responsible for his actions. The accused said he did not
know anything to the effect that he committed the said offence and said he was
out of his senses. On revision, it was ruled that the evidence regarding the
accused's insanity did no more than raise a doubt as to his sanity at the time of
the act, but it fell short of establishing a margin of profitability on the side of
insanity. Further, it was held that when a person is insane but found to have
committed the offence, a special finding that is neither a conviction nor an
acquittal is passed; guilty but insane. However, the finding of the lower court
was set aside on account of various irregularities in the evidence. Spry -J- said
inter alia that the accused;
(1963) EA 1
Page 240 of 382
... must show, on all evidence, that insanity is more likely than sanity,
though it may be ever so little likely. Merely to raise a reasonable doubt
might still leave the balance tilted on the side of sanity.9"
The burden of proof is on the defence since the law presumes sanity of the
accused until the contrary is proved.
The issue of insanity as relates to fitness to plead has also received judicial
attention. The case of Kaplolwa s/o Tarino -vs- R10 as discussed below is
germane as it gives insight into the procedural law of fitness to plead and at the
same time clothes it with substantive legal considerations. In this case the
appellant was charged with murder before the Supreme Court of Kenya. When
arraigned, the question of his fitness to plead was considered and medical
evidence was called showing that due to senility and hardening of the arteries of
the brain, the appellant at times appeared to be wanting, but would be capable
of understanding the nature of the charge in his more lucid moments. The trial
judge found that the appellant was fit to plead and subsequently in his
judgment, held that a cautionary statement made by the appellant was given
months before the trial confirmed the finding that the accused was fit to plead
had been correct. The trial judge convicted the accused of murder and sentenced
him to death. On appeal, the question of the appellant's fitness to plead was
considered. The Court of Appeal at Nairobi presided over by Sir Kenneth
O'Connor, Briggs and Forbes JA made the following ruling:
i)
that since the cautionary statement relied on by the trial judge was made
more than five months before the trial, it afforded little, if any, evidence
of the appellant's mental condition at the time of the trial;
9
10
ii)
that the point for determination for the trial judge was not whether the
appellant was sufficiently sane to appreciate the charge, but whether at
the trial he was of unsound mind and consequently incapable of making
his defence; and
iii)
that since there was nothing in the evidence to show that the appellant at
the time of his trial was enjoying one of his more lucid moments, and
since the trial judge did not consider whether he was capable of making
his defence the conviction must be set aside.
The above case is important for two main reasons. First, it shows that it matters
not that the accused person was sane when he committed the offence if the
contentious issue is fitness to plead. What is important is his mental state at the
time he is on trial. Insanity at the time of committing the offence is of little
significance in answering questions of fitness to plead. The second point that
can be drawn from the case is that the sanity required for one to be considered
fit to plead goes further than that of merely being able to understand the charge.
The sanity must go beyond this and be sufficient to enable him to make his
defence. If he is of such insanity as to render him incapable of making his
defence, a conviction based on such a trial must be quashed on appeal.
11
Other jurisdictions have also considered the question of fitness to plead when
the issue of soundness of mind is not agreed upon. Sometimes, the question of
fitness to plead may be raised and determined as a preliminary issue. The
English case of R -vs- Beynon12 focuses on the issue. B was charged on an
indictment for murder. On his arraignment and before he pleaded, counsel for
the Crown applied that the issue of fitness to plead to trial be dealt with as a
preliminary issue. Counsel for B objected to the empanelling of a jury to try that
issue submitting that unless the law compelled the court to deal with the issue
of insanity, natural justice required that the general issue should be tried first. It
was held (NOT following R v- Roberts13 ) that the law had always been that an
insane person could not be tried and if the court is aware of the fact that there
was a preliminary issue whether the person charged was insane, so that he was
unfit to be tried, it was the duty of the court to see that the issue was tried before
the general issue even though no application was made by the prosecution or
defence.
12
13
14
15
16
condition, not able to follow the proceedings at the trial and so cannot make a
proper defence in those proceedings. The court approved of the test to be
applied as propounded by case of R vs- Pritchard17, that the jury should be
directed to find whether the prisoner was of sufficient intellect to comprehend
the course of proceedings on the trial so as to make a proper defence.
The issue of fitness to plead may be raised by either the defence, the
prosecution or by the court itself. The principle that "he who asserts must
prove" appears to underlie the court's decision in the above (Podola) case. If the
prosecution asserts that the accused is unfit to plead, the onus is on them. In
such a case, would they have to satisfy the strict criminal law standard of
proving beyond reasonable doubt or would it be enough for them (as it is for the
prisoner where, he asserts his unfitness) to prove their case on a balance of
probabilities? At the trial, Edmund Davies J. thought that the strict criminal
standard was appropriate and it is respectfully submitted here that this is
correct. If the issue has been raised by the court, the onus falls on the
prosecution.
D.
Sometimes the defendant may refuse to raise and/or plead the defence of
insanity. Although the Criminal Procedure Code is not clear on what procedure
to be adopted in such situations, one may propose to observe how other
jurisdictions have dealt with such an issue. In R -vs- Hollingsworth,18 the issue
was at hand. H pleaded guilty of threatening to murder and demanding money
with menaces and was sentenced to five years and three years imprisonment for
each offence. H was 41 years of age and previously of good character. Since
1952, he had spent a considerable time in a mental hospital as a certified mental
17
18
patient. He had absconded from the hospital when he committed the offences
charged. Upon conviction he appealed to the Court of Criminal Appeal against
the sentence. Lord Goddard -J, Ormerod and Donovan JJ held while dismissing
the appeal, that as H refused to enter a plea of insanity, the only course was to
send him to prison for a considerable period. It is noteworthy that in criminal
law a fine line has to be drawn between the right to freedom and liberty of the
individual and the right to the protection of the public. The above case raises the
same point as R -vs- Barnett19, namely, what is to be done when there is
evidence pointing to insanity of the defendant who refuses to plead insanity?
How is the protection of other people to be ensured? It was held that
imprisonment would most ably cater for that.
One of the most pertinent questions asked on this subject is whether the
prosecution should be allowed to raise the issue of insanity; when the insanity is
not to prove unfitness to plead, but as a defence i.e. the accused was insane at
the time of the commission of the act constituting the offence charged.
It has been held as early as 1958 in the Bastian Case20 that the prosecution may
allege insanity. Samuels H.A. in his article21 supported this position and
submitted that the proposition that the prosecution may not allege the insanity
of the accused was no longer the law. However, this was prior to the Price
Case22. In this case, Lawton J ruled that it was the law. Although the
prosecution may not be precluded in certain cases from leading evidence which
may have the effect of tending to establish insanity, the main submission is that
19
20
21
22
as the law stands at the moment, Price is right and Bastian is wrong. The
relevant authorities for the above contention being Oliver Smith23 and Casey24.
In Oliver Smith, the appellant had been convicted of murder. He had confessed
to the killing of a woman with whom he had been living with. At his trial, he set
up a defence of insanity which he sought to establish by cross-examination of
the prosecution witness and by direct evidence of his family and personal
history. At the close of the defence case, the prosecution called the prison
doctor to rebut the suggestion of insanity. His complaint on appeal, was a
misdirection as to his defence. The appeal was dismissed. After the dismissal,
counsel for the crown with regard to tendering evidence of a prisoner's sanity.
The Lord Chief justice who presided over the court said:
The Casey Case followed Oliver Smith and gave an approval of the above
passage by the Lord Chief Justice. However, in Casey Case the court mentioned
that the rule is that it is for the defence to call witnesses in relation to the issue
of insanity.
However, the issue of whether or not the prosecution is competent to raise the
issue of insanity is not settled and various writers and judicial contentions
23
24
28
pleaded diminished responsibility. If his plea was successful, then he would not
be liable to be convicted of murder. Donovan -J- ruled that as the defence had
put in issue the state of the prisoner's mind by raising a defence of diminished
responsibility, and, as the prosecution believed that they had evidence that he
was insane at the time, the court could not stop the prosecution from crossexamining the defence witnesses and calling evidence to invite the jury to
return a verdict of guilty but insane.
In Nott29, the defence was also of insanity and the prosecution was given leave
by Elwes -J-, after the defence case had closed, to call rebutting evidence to
show that the accused was not insane although such evidence might have
tended to establish that he was suffering from diminished responsibility.
Similar views regarding the subject were expressed by Lord Denning in Bratty
25
26
27
28
29
vs- Attorney General for Northern Ireland30. He thought that Devlin was
quite right in putting the question of insanity before the jury and even though it
had not been raised by the defence. He added that:
"One must not lose sight of the overriding principle laid down
by the House in Woolmingtons case... that it is for the
prosecution to prove every element of the offence charged. One
of the elements is the accused's state of mind.
It is submitted that all what happens in a criminal trial where the defence raises
automatism or diminished responsibility is that the presumption of mental
capacity is displaced and the Crown becomes entitled to lead evidence as to the
30
31
condition of the prisoner's mind. This is borne out by the decision in R vsSmith.32
However, recent judicial pronouncements do not favour the notion that the
prosecution may raise the issue of insanity even if it has not been alleged by
five defence. In Dixon33 and Morris34 which were decided before Bratty, Jones
-J- refused to put insanity to the jury unless it was raised by the defence. In R vs- Duke35 the Lord CJ took the view that the right of the prosecution to raise
the issue of insanity was still open to doubt and referred to the conflict of
practice among judges.
In Price36, which was decided later, Lawton -J- considered the comments of
Lord Denning in Bratty as well as those of the Lord CJ in Duke and concluded
as Jones -J- had in Dixon and Morri that the issue of insanity can only he put to
the jury if it has been raised by the defence. In Mitchell37, Elwes -J- followed
the decision in Price. It can therefore be argued that Lord Dennings view does
not represent the law as it now stands. Lawton -J- infact quipped:
The prosecutor's duty is to lay before the court the whole of the facts which
compose his case and to do so fairly having regard to the fact the he is a
32
33
34
35
36
37
38
The rule as discussed herein has been the subject of some criticism. First is that
to disallow the prosecution the right to raise the issue of insanity would in some
39
40
41
cases be shutting out the truth because it is detrimental to the accused 42. This
may be true that the present position arises out of the character and role of the
prosecutor in a criminal trial. His duty is not to try to shut out any legal
evidence which would be important to the interests of the accused person but it
is not for him to decide what the interests of the accused are. It may not be in
his interests to raise the issue of insanity. "Indeed, in many cases, it is not, for
the end results of a successful defence of insanity is detention in Broadmoor.43
F.
The Criminal Procedure Code is not categorical on this issue. There have been
no reported decisions touching the issue fully. However, what is clear is that it
is still as unsettled as in other jurisdictions. The case of Mandi s/o Ngoda44
focuses on the mootness. In this case the accused was charged with murder and
at the opening of the trial his counsel intimated that the accused was prepared to
plead guilty to a charge of manslaughter. The prosecution, however, declined to
accept this plea on the ground that it proposed to establish that the accused was
insane when the alleged offence was committed. Murphy -J- held inter-alia that
it was questionable whether, even if it is permissible for the prosecution to raise
the issue of insanity in the course of a trial, it was proper for the case to be
presented at the outset as one in which the only verdict asked for was that of
guilty but insane. He further observed that the court was entitled to treat the
issue of insanity as an alternative defence and to invite the assessors to consider
it on balance of probabilities. The judge revisited the English cases of Price and
Bratty and drew their attention to the fact the matter is not finally settled
whether the prosecution can lead evidence of insanity if it is not in reply to such
other allegations put up by the defence as would warrant the move to be taken
42
43
44
to rebutt it.
45
Much said, one thing which is clear is that if the prosecution is in control of
some material evidence, it should not be precluded from tendering it for
purposes of just administration of the law. The case of R -vs- Dickie47 sums up
the recommendation that one would give. This case establishes various aspects
of insanity. It is noted that in certain exceptional circumstances, the judge can
of his own volition raise an issue of insanity and leave the issue to the jury to
decide. It also establishes that the prosecution has a positive duty to prove, if it
can, all the allegations which it makes on the indictment. It further establishes
that the prosecution has the power, if the issue of insanity is raised by the
defence, to rebutt by its own evidence the attempt by the defence to establish
insanity. It further has the obligation, if it has the evidence in its possession of
insanity which will assist the defence to establish that the defendant was in that
condition when the crime was committed, to make that evidence available to the
defence in good time so that the defence may in its discretion make proper use
of it.48
G.
In Kenya, like many other areas, a person who commits an offence but was
insane at the time receives a special verdict of 'guilty but insane'. The Criminal
Procedure Code is clear on the issue and a similar provision has been judicially
46
47
48
SeeKadish H.S., Criminal Law and its Processes (Toronto, Little Brown & Co. Second Edition, 1969)
Pages 56-58.
(1984) 3 All E.R. 173
This is the authors recommendation.
Page 254 of 382
considered in the case of R -vs- Magata s/o Kachehakana49. The accused was
charged with killing his father. It was proved and admitted that the accused
killed his father because he believed that he (his father) was Satan and had
bewitched him. There was no apparent motive for the killing other than the
belief of the accused that his father had bewitched him. It was held that when
the accused killed his father he did not know what he was doing and that he did
not know that he ought not to have done the act. The accused was therefore
guilty of the act charged but insane at the time. A special finding of 'guilty but
insane' was given.
H.
INSANITY: EVOLUTION
The defence of insanity has its roots in the 15th century and the first recognised
case in which it was pleaded was Snow vs- Beverly50, where it was held that
the act of a mad man should not be imputed to him because he has no capacity
to form the necessary menses. In that era, a successful plea of insanity was
followed by an absolute acquittal. However, in the early 19th Century various
attempts to assassinate the Monarch were made and in each case insanity was
pleaded. Henceforth, a defence of insanity was closely scrutinized, emphasis
being laid on the element of mensrea or guilty mind. Those who were found not
guilty by reason of insanity were henceforth to be confined at the Monarch's
pleasure. The main argument in such trials centered on the defect of reason and
the knowledge of right and wrong. It seems from the earlier cases that once a
person was certified insane, the guilty concept had no application to him.
However, the 'guilty but insane' verdict was later introduced.
As understood today, the insanity defence refers to that branch of the concept of
insanity which defines the extent to which men accused of crime may be
49
50
(1957)EA330.
4 Co Rep. 125 b; Ib ruling cases 708 (1604).
Page 255 of 382
I.
Only the evil man, the one with intentionto cause harm, came into
consideration. It became necessary to account for those who could not think like
other men and who could therefore not be blamed. These are the insane. Infact,
51
"... the idiot, the lunatic, and the person who by sickness,
grief or other accident, wholly loseth his memory and
understanding; and the lunatique that hath sometime his
understanding and sometime not...52"
The law assumes for most situations that all men have the necessary qualities to
make expected responses unless it is demonstrated otherwise. This assumption
is reflected by the legal presumption that all men are sane53 and that they
intended the natural and probable consequences of their acts. If therefore an
individual's acts mark him as a criminal, it is ordinarily inferred that he intended
to commit crime or was insufficiently attentive to the objective circumstances
and therefore either reckless or grossly negligent. These presumptions may
endow the defendant with characteristics which are not his at all.
Goldstein A. S. The Insanity Defence, London, Yale University Press, 1967 at P. 10..
Section 11 Cap 63. The Penal Code.
Fingarette H; The meaning of Criminal Insanity (Los Angeles, University of California Press.) 1972
Chapter Three.
Page 257 of 382
However, this rule was criticised by lawyers and judges for, among other
reasons, its generality. The phrase "product of was too general and the test
died a natural death.
A panel of discussion of the U.S Annual Judicial Conference 56 discussed at
length the defence of insanity. Joseph Weintraub CJ (N.Y Supreme Court)
argued that insanity should have nothing to do with the adjudication of guilt but
rather should bear upon the disposition of the offender after conviction.
However, Professor Herbert Wechsler disagreed with the above view that
insanity has no relevance to guilt. He gave an example that if an elderly man is
taken to hospital in an advanced arteriosclerotic state, and while in hospital
experiences a tantrum, a delusion, a delusional phase, and knocks over a lamp
with the result that the attendant is killed, it would be wrong to convict the man
of homicide, and his condition regarded as relevant only on the question of
55
56
what to do with him. He noted that that was why the criterion of criminal
responsibility as affected by disease or a defect parallels the traditional mensrea rules requiring a determination of blameworthiness in the ordinary moral
sense, in the sense of working morality, not in the sense of man's responsibility
for his nature or his nurture but in the sense that the afflictive sanctions of the
law will not be visited on anyone unless he does something which is the product
of a choice; unless in the traditional jurisprudential terms he performs a judicial
act. This argument is sound. It requires that those not sane be treated as
incapable of committing any offence which requires mens-rea because the state
of their mental faculty does not favour them with the capability of forming a
criminal intent.
Understood in context, what the above discussion points to is that first, the
element of criminal intent, mens-rea, is central when considering the issue of
criminal responsibility. Secondly, it is clear that the said intent cannot be
formed by one who cannot control his mind, the insane. If this analogy is
correct, and it is, then an insane person has no mens-rea, or is not capable of
forming one. Further, if this assertion is true, then by necessary implication, an
insane person cannot be guilty of an offence which requires mens-rea. It is
therefore submitted that the verdict of 'guilty but insane' seriously requires a
consideration with a view to amending it to adopt the American style of 'not
guilty on account of insanity'. Kenya has styled her verdict to the tune of the
British Act57, which Act requires that if the insane defendant is found to have
committed the offence, the finding be that of guilty but insane. This is much
like saying that a person who is not capable of being guilty is guilty. This is a
clear case for reform.
57
The procedure to be followed once a finding of 'guilty but insane' has been
passed is as outlined in the Criminal Procedure Code under section 166. The
court is to make a report of the order to the President and in the meanwhile the
accused is kept in safe custody. The President will then order where such
person is to be detained normally in a mental hospital, prison or any other place
the President deems fit. The officer in-charge of the place where such person is
detained shall make a report in writing to the Minister for consideration by the
President who may order that the person be discharged or otherwise dealt
with58.
At other times a person may not be insane but he is altogether not able to
understand the proceedings. If this happens in respect of cases that are triable
by a subordinate court, the court is to proceed and hear the evidence. If at the
close of the prosecution's case the court finds that there is no case to answer as
provided for under Criminal Procedure Code (section 210), the accused person
should be discharged. On the other hand if a prima facie case has been made
out against him the court should order the accused to be detained at President's
58
Pleasure. The subordinate court's order is however not final because the High
Court must confirm every such order59. If the inability to understand arises in a
committal proceeding, he is to be committed to the High Court for trial if there
is enough evidence to warrant a committal. The subordinate court may then
either remand or grant him bail depending on the circumstances of each case.
The High Court upon his being committed shall then try him and if at the end of
the trial no evidence is led as would justify a conviction, the accused should be
acquitted and discharged otherwise he is detained at President's pleasure 60. In
all cases where such orders of detention at President's pleasure are made, the
said orders must bear the signature of the presiding judge together with notes of
evidence taken at the trial61.
59
60
61
62
Goldstein, "The Insanity Defence", London, Yale University Press, 1967 at P.44.
Page 262 of 382
The Constitution of Kenya at section 72(1) (h) provides that a person may be
confined for reason of unsoundness of mind, addiction to drug or alcohol. It
does not provide otherwise and this may warrant the implication of the three
minimal conditions above. If the first condition is closely evaluated, it can be
seen that it is hardly observed as medical evidence in insanity cases is given no
priorities and moreover it is not binding upon the court. Therefore a verdict of
insanity is not evidence of any medical certification. The second condition
suffers an even greater blow in that confinement is compulsory here (in Kenya).
In jurisdictions where it is discretionary the matter is given some consideration
during the civil commitment hearing. The length of the confinement is
significant to the issue of liberty. In Kenya, the Criminal Procedure Code
provides for the periodical reports to be made once one has been confined in a
mental hospital by order as above. The first report in respect of the history,
condition and circumstances of the person so detained is to be made three years
after such an order64 has been made, and thereafter at a two year interval. The
three year period is too long. Considering that confinement is also extended to
those whose insanity arises out of drunkenness, the period is unrealistically long
owing to the fact that one cannot obtain a release prior to the expiration of three
years even though he may be perfectly sane.
This aspect of confinement seems to have a punitive edge and not just
treatment. The persons so confined are regarded as criminals. This is given
strength by the fact that those who are confined after court orders are confined
together with other mental patients who have not been through the court
64
process. Both classes are supposedly mental patients. However, their treatment
is remarkably different. For example the Mental Treatment Act section 3065
thereof provides that a person in charge of mental hospital may by order in
writing, order the discharge of any person detained in a mental hospital
provided that an order will not be made in respect of persons detained under the
Criminal Procedure Code. This means that the "acquittees" of the court are still
criminals and treated as such.
It is finally submitted that if a person pleads insanity and the defence is well
established, he should be acquitted. The question of detention in a mental
institution should only be for the purposes of treatment, but not holding him
there as a criminal even after his mental condition has been demonstrably found
to be no longer wanting.
65
CHAPTER FOURTEEN
JUDGEMENT
A. INTRODUCTION
Judgment means the adjudication by the court that the defendant is guilty
or not guilty. A judgment merely stating the penalty would not be valid 1. It
must contain adjudication by the court that the defendant is guilty or not guilty.
According to a writer on judgments2, a judgment of conviction may be said to
consist of two parts:
i)
ii)
B. DELIVERY
The mode of delivering judgment is provided at Section 168 of the Criminal
Procedure Code. It provides that the judgment is to be pronounced in open
court. However, other jurisdictions with similar statutory provisions have held
as valid a judgment and sentence entered by the court in chambers during a
recess in the presence of court officials3. Similarly a sentence rendered in a
room other than the courtroom because of an emergency was held valid in Reed
-vs- State4.
1
2
3
4
The Criminal Procedure Code further requires that the judgment be explained
and that the pronouncement be made either immediately after determination of
the trial or at some subsequent time. However, notice must be given to the
parties and their advocates if the judgment is to be delivered at some subsequent
time. If the defence or prosecution requests that the judgment be read out in
whole, the Magistrate is required to comply therewith5. If the accused person is
in custody, it is required that he be brought before the court. In the event that he
is not in custody, he is to attend to hear judgment delivered. However, this may
not be necessary where his personal attendance has been dispensed with during
the trial. To this is added a further qualification for his attendance not to be
required that the sentence must be one of fine only or he is acquitted. It should
not be lost to sight that a judgment is not invalidated by reason only that a party
or his advocate were absent either on the day or place notified for delivery
thereof. An omission to serve or defect in serving on the parties or their
advocates is not fatal to the judgment6. This must, however, not be read in
isolation. One must have in mind the spirit of Section 382 of the Criminal
Procedure Code. This section provides that a sentence, order or other finding
passed by a court of competent jurisdiction shall not be altered on appeal on
account of error, omission or irregularity in the judgment unless the error or
omission has occasioned a failure of justice. In determining whether such an
anomaly has occasioned injustice the court is required to consider whether the
objection could and should have been raised at an earlier state in the
proceedings7.
In delivering judgment and sentence, the Magistrate or presiding Judge must be
clear and to the point. This will ensure that ambiguity is not created. In cases of
5
6
7
an ambiguity, Sir Udo Udoma C.J in Eneriko Lutalo vs- R8 considered the
consequences. The facts here were that the appellants were charged jointly on
two counts of robbery with violence and were found guilty and convicted. They
were sentenced to five years imprisonment each with fourteen strokes of the
cane with an approved instrument on each count. The incidents in respect of
which they were charged took place at the same time but as two persons were
attacked, two separate counts were brought. Both appellants appealed against
the conviction and sentence. Their appeals against conviction were dismissed as
without merit. As to sentence, counsel for the respondent submitted that it was
ambiguous and bad in law and the case should be remitted for re-sentencing. Sir
Udo held that the sentence was neither bad 'ab initio' nor incurable but it was
ambiguous and the High Court had ample power to clarify it on looking at the
proceedings to ascertain the Magistrate's intention. Sir Udo was of the opinion
that if the sentence passed on the appellants was legal, then the ambiguity
according to him was simply a question of construction. He noted in his ruling
that;
This was not the first time that the question of ambiguity in passing sentence
was considered in East Africa. In the English case of Re Castings10 the
Divisional court established the principle that;
8
9
10
(1966)EA328
Ibid at 330 para. G.
(1958)42 Cr. App. Rep. 132.
Page 267 of 382
Provided that the court of Criminal Appeal can clearly see what was the
intention of the judge in passing sentence, the question of exact words used
is immaterial.
However, this must not be taken as ousting the spirit of the law that exactitude
and clarity of a judgment do exemplify the normative basis of law.
C.
In most legal aspects, the form in which the particular issue is presented is
given a lot of emphasis. Thus Section 169 of the Criminal Procedure Code
provides inter alia that a judgment must be written by or under the direction of
the presiding officer of the court. It must not only be written in the language of
court but it must also include the requirements stated therein. These are that the
judgment must contain the point or points for determination, the decision
thereon and the reasons for that decision. With this duly done, the presiding
officer is required to sign it in open court at the time of pronouncing it. If the
judgment is one of conviction, it shall specify the offence of which, and the
section, of the Penal Code or other law under which the accused is sentenced11.
Section 169(3) provides for acquittal cases in which case the judgment shall
state the offence of which the accused is acquitted and shall direct that he be set
at liberty. The accused person is allowed to ask for a copy of the judgment and
may further ask for a translation in his own language, if practicable, and is to be
given the copy without charge by virtue of Section 179 of the Criminal
Procedure Code. The point or points for determination must cover the essential
ingredients of the offence charged.
Failure to comply with these requirements is an irregularity which will entitle
11
and oblige the Court of Appeal to examine the facts of the case with a view to
determining whether there has been a failure at justice within the meaning of
section 382 of the Criminal Procedure Code. Findings of fact should be based
on the credibility of witnesses especially in cases where the witnesses are
accomplices. A trial court must also direct itself on the nature of the evidence
adduced. In the case of evidence of children of tender age the court must be
mindful that their evidence should be corroborated before a conviction can be
had except where in a case involving a sexual offence, the only evidence is that
if a child of tender years who is the alleged victim of the offence (the case shall
receive the accused person if, for reason to be recorded in the proceedings, the
court is satisfied that the child is telling the truth. (See Sec. 124 evidence Act)
amendment.12.
A judgment is defective if there are no findings on any discrepancies in the
evidence, but a trial is not a nullity simply because there is a defect in the
judgment. In the judgment, the usual practice is to enter up judgment and
sentence separately on each count on which the defendant has been convicted,
and not on the whole indictment. This implies that if on appeal the conviction
on one or more counts is quashed, the judgment on good conviction on the other
counts may stand13.
Minor and Cognate offences are dealt with at Section 179 of the Criminal
Procedure Code. It provides that a person charged with an offence consisting of
several particulars, a combination of some only of which constitutes a complete
minor offence, and the combination is proved, but the remaining particulars are
12
13
See Bwonwong'a M. Procedures in Criminal Law in Kenya (East African Educational Publishers
Nairobi 1994) Chapter 18.
Orlirld L.B, Crimiridl Procedure From Arrest to Appeal (New York, N.Y. University Press, 1947)
Chapter IX.
Page 269 of 382
not proved, may be convicted of the minor offence although he was not charged
with it. This section was considered judicially in the case of Robert Ndecho
and Ogonyo Luora -vs- R14. The appellants were tried with others on an
information charging them with the murder of a police constable. The
appellants were convicted of wilfully obstructing the police in due execution of
their duty or of persons acting in their aid. Before noting the court's judgment, it
is important to focus on section 179(2) of the Criminal Procedure Code which
provides as follows:
14
(1951)18 E.A.C.A 171, See also the case of Rv Koigi Wamwere & Others Criminal Case No. 1278 of
1994 (unreported) where the accused were charged with the of fence of Robbery with Violence and
convicted for Robbery.
Page 270 of 382
Further case law15 analyses a problem that before a conviction for a minor
offence can be substituted for a major offence charged, the circumstances
embodied in the major charge must necessarily, and according to the definition
of the offence imputed by that charge, constitute the minor offence also
However, this was a dissenting view by Briggs JA. Nonetheless, what is clear
from this case (Wachira s/o Njenga vs- R)16 is that where there are alternative
counts and a conviction is recorded on one, a verdict should not be given on the
other. Further it emerges clearly that before a conviction for a minor offence
can be substituted for a major offence charged, the form of the charge must
necessarily give the accused notice of all the allegations going to constitute the
minor offence; it not being a question whether the form of the charge in a
particular case, in fact, gives the accused notice of such allegations.
The Tanzanian High Court has considered section 181 of the Tanzanian
Criminal Procedure Code which is in pari materia with the Kenyan Criminal
Procedure Code section 179. This was in the case of Ali Mohammed Hassani
Mpanda vs- R17. In this case, the issues that were being determined included
the court's power to substitute a conviction of a minor offence and whether
minor offence must be cognate to the major offence charged. The facts of the
case were that the appellant together with others was charged with obstructing
police officers in the due execution of their duty contrary to section 243(b) of
the Tanzanian Penal Code. The Magistrate found the appellant not guilty of the
offence charged but convicted him of the minor offence of assault occasioning
actual bodily harm contrary to section 241 of the aforesaid Code. On appeal it
was considered whether the Magistrate had power to substitute a conviction of
the lesser offence and whether that offence must be cognate with the major
offence charged. Spry -J- held that section 181 can only be applied where the
15
16
17
E. ORDERS ON JUDGMENT
Once judgment has been entered in compliance with the provisions of the
Criminal Procedure Code, Section 170 entitles the accused person upon
application to a copy of the judgment or when he so desires a translation in his
own language. Such a copy shall be given to him without undue delay and free
of charge.
F. CONCLUSION
The writing of a judgment is of fundamental significance. Failure to comply
with the rules for writing a judgment may be fatal to the judgment. In the case
of Ratilal shah vs- the Republic18, where a trial Magistrate at the time of
delivering the judgment stated that reasons would be given later the Supreme
Court refused to look at the reasons written by the presiding Magistrate after the
18
trial. The upshot of this as viewed against the background of the provisions of
Section 168 of the Criminal Procedure Code relating to mode of delivery of
judgments and section 169 relating to contents of judgment underscore the
significance
of
this
Stage
of
CHAPTER FIFTEEN
SENTENCES
A. INTRODUCTION
Sentencing is central in the administration of criminal justice. It is the
process/stage in the criminal procedure at which a court of law of
competent jurisdiction makes an order after convicting the accused, as to
the specific penalty to be meted out to such criminal. The severity of a
sentence depends on the circumstance of each case. Regard is usually had
to the nature of the crime, the criminal and the purpose of the sentence.
There are various schools which regard criminals in various perspectives.
One extreme view is that criminals do not respect the rights and dignity of
others and therefore should not themselves be accorded any such treatment
of dignity and respect. They recommend that criminals should be punished
so that society can be protected. On the other extreme is the view that
criminals are victims of social, political, economic and psychological
forces in society. Therefore, they recommend that sentencing should have
the goal of salvaging and rehabilitating the criminals and should therefore
be treated with compassion and understanding1.
It is against this
Smith A.B & Berling L; Treating Criminal Offenders: Issues and Problems. PP 1-2 (1974); HL
Packer. The Limits of Criminal Sanction. P.3 (1963).
Page 273 of 382
trial.
B.
retribution. In the earlier times, this was the dominant approach and rested
on the idea that a criminal was responsible for the harm he has done and
that it was right for him to be punished for he ought to receive his just
'payment'. The punishments were therefore often inhuman, degrading and
at times excessive. They included whipping, branding, banishment,
mutilation of limbs, emasculation etc. At other times, expiation of guilt by
money payment was done2. The historical movement of punishment and
sentencing is best illustrated by Glasser's six R's: revenge, rejection,
repression, restraint, rehabilitation and reintegration3.
Society's attitude towards punishment is gradually changing and has
known change from the period when retribution was the overriding
principle to 'modern' theory of punishment to rehabilitate and reintegrate
the criminal back to the society.
2
3
impulses6.
From the foregoing, criminality is regarded as the result of one form or
another of abnormality in the individual in which the criminal has no
control. On the other hand, it is seen as arising out of the socio-economic
and political environment in which the offender lives and has a free will in
them.
Owing to this distinction, the penal policy has been influenced in the
following manner:
Freud S; A General Introduction to Psycho-Analysis, (Joan Riviere tr. 1935 first published in
1920).
Smith J C & Hogan B; Criminal Law. (London Butterworths 8th Edition 1996) PP 4-15.
Page 276 of 382
With the above analysis, the issues pertaining to sentencing can now be
discussed.
C. OBJECTIVES OF SENTENCING
(1)
(2)
'... There are two and only two ultimate purposes to be served by criminal
punishments: the deserved infliction of suffering on evildoers and the
prevention of crime... the institution of criminal punishment draws
substance from both these ultimate purposes9'.
Devlin .P, The Judge' 1979 (at 29-30) Ct of Justice Robbert Jackson in Gregg Cartage
and Storage Co -vs- United States at 79-80.
Packer H.L, Limits of the Criminal Sanction, Supra Note 1.
Page 277 of 382
i) Capital Punishment
It is the mandatory penalty for murder, treason, robbery with violence or
attempted robbery with violence. It can only be imposed upon an adult
(over 18 years of age). If a youthful offender is convicted of an offence
carrying a mandatory death penalty, he is detained at the President's
pleasure. It cannot also be imposed upon a pregnant woman, who in the
event of a like conviction will instead get a life imprisonment. However,
the President may exercise his prerogative of mercy as vested upon him by
the Constitution14 to pardon any such person(s) convicted of a capital
offence.
14
ii) Imprisonment
This is the most popular punishment and entails the actual physical
restraint of a person in custody. For most offenses only the maximum
custodial period is given. This gives the court wide discretion to decide
what custodial period, if any, will be given. A sentence of imprisonment
may be accompanied by hard labour. Generally, a sentence of
imprisonment shall not be imposed on a first offender except where the
offence is particularly grave, aggravated or wide-spread in a particular
area16. It has been held in the Kitika Case17 that a crime committed as a
result of domestic feud will not necessarily attract a term in prison because
it has been argued that since the parties are closely related, imprisoning the
offender may also in effect punish the complainant.17(a)
15
16
17
17(a)
offender fails to pay the fine the court may order that in default of payment
the offender undergoes a detention.
Detention camps were once very popular as providing an alternative to
imprisonment for petty offenders for whom other penalties were
unsuitable. But because of the introduction of an alternative in the form
and nature of extra-mural penal employment, the number of detainees in
detention camps has declined, and it is hoped that the number will decline
even further.
v) Fines
A limitation upon fining is provided by the various maxims imposed by the
provisions of the Penal Code or any other statute. The amount of fine
should be realistic. Fines are preferred to orders of imprisonment. A
sentence for imprisonment without the option of a fine, even though it is
allowed by the statute, should be exercised with great caution. Thus, in the
case of Chander Kanta Sethi vs R18, imprisonment without the option of
a fine was imposed on the sole consideration that the accused should not be
allowed to buy her way out. On its appeal, the Supreme Court of Kenya
held inter alia that the Magistrate was not correct in holding that if a fine
was imposed, the offender was being allowed to buy her way out of the
consequences of the act for which she had been convicted. As per Rudd Ag
CJ,
18
(1962)EA523.
Page 281 of 382
relations...19
19
20
21
22
23
24
Ibid at 527.
(1969)EA598.
Ibid at 599.
Mohamed Juma -vs- R I T.L..R, 257.
R -vs- Bishom s/o Mwango 2 T.L..R, 31.
(1969)EA287.
Page 282 of 382
was held that a fine twice the value of property under litigation was
excessive and the fine was reduced to the corresponding value of the
chattel.
It is, however, unlawful for a person to be sentenced to imprisonment in
addition to a fine unless tthe statute so authorizes. This was given judicial
consideration in Ahmed Hirsi Mohammed vs- R25. The appellant was
convicted under section 3(1) of the Miraa Prohibition (Scheduled Areas)
Ordinance, 1951 (as amended by Ordinance No. 11 of 1957) and sentenced
to six months' imprisonment and to pay a fine of Shs. 100/= or six (more)
months' imprisonment in default of payment. The maximum penalty for a
contravention of section 3(1) of the Ordinance as amended was a fine of
Sh.2,000/- or imprisonment for a term not exceeding twelve months.
Sinclair CJ and MacDuff -J- held that the appellant should not have been
sentenced to both imprisonment and a fine. They, however, quashed the
order of fine against the appellant but upheld the imprisonment sentence.
vi) Forfeiture
Courts have power to order the forfeiture of any property which has been
used in connection with the commission of a crime. If the property cannot
be found or cannot be forfeited for whatever reason, the court will assess
the value of the property which ought to have been forfeited and order such
sum to he forfeited. This can be done in addition to or in lieu of any other
punishment which may be imposed for the offence.
vii) Compensation
Section 31 of the Penal Code empowers the court to order a convict to
compensate any person injured by his offence, either in addition to or in
25
(1958)EA63.
Page 283 of 382
26
27
28
29
x) Probation
Probation has been described as a combination of both 'treatment and
punishment' in the context of community based corrections. Offenders
receive counselling and guidance in an attempt to bring them back to
acceptable social life by positively adjusting them. In Kenya, probation is
governed by the Probation of Offenders Act (Cap 64). Section 4 of the said
Act specifies that where a court is of the opinion that it is expedient to
release the offender on probation, it may convict the offender and make a
probation order. The High Court can also make an order of probation in
lieu of sentencing an offender to any punishment.
In various instances the probation officer's report will be required before
sentencing. Thus in Kabeni vs- R30, the appellant pleaded guilty to a
charge of attempted suicide and was sentenced to six months
imprisonment. In allowing the appeal against sentence, Trevelyan -Jnoted:
It would have been far better had the Magistrate realized that an
accused such as the appellant in this case needs sympathy and help
rather than punishment. What useful purpose can a period of six
months' imprisonment serve in circumstances such as we have here? A
probation officer's report should be obtained as a matter of course
30
(1970)EA503.
Page 286 of 382
The Courts must have regard to the offender's age, character, antecedents,
home surroundings, health or mental conditions of the offender or the
nature of the offence, and any extenuating circumstances in which the
offence was committed. The offender may be required to enter into a
recognisance with or without sureties.
xiii) Settlements
Courts are vested with power to promote reconciliation and encourage and
facilitate settlement in minor criminal cases on terms of payment or
compensation or other terms33. This view was given judicial cognisance in
Samuel Kurai -vs- R34. The Honourable Judges of Appeal while, allowing
the appeal, authoritatively and unanimously held that the trial and first
appellate courts erred in their interpretation of section 176, by letting the
appellant serve an imprisonment sentence at a time when there was already
an amicable reconciliation between the appellant and the complainant. The
31
32
33
34
Ibid at Para. G
Cap 90 laws of Kenya.
Promotion of reconciliation, section 176 Criminal Procedure Code.
Criminal Appeal No. 14 of 1990.
Page 287 of 382
High Court thought that the offence, under section 251 of the Penal Code35,
should not be treated with leniency. The Court of Appeal was of the view
that was not the issue, for consideration. The fact of the matter is that under
section 176 of the Criminal Procedure Code a court may promote
reconciliation and encourage and facilitate reconciliation in circumstances
which are expressly stated in the provision of law.
The Children Act Section 191 provides several options for the treatment of
child offenders.
They include: -
35
36
Penal Code Cap. 63 Laws of Kenya. The section deals with Assault Causing Actual Body Harm.
See R. vsSaidi Ibrahim (1960) EA 1058, Umbwa Mbenga & Another vs R(1969) HCD n.312.
Page 288 of 382
(a)
(b)
(c)
(d)
(e)
(f)
(g)
37
which will not be brought into effect unless and until the offender is in
breach of certain conditions set out by the court. If the offender breaches
any of the conditions during the period, of suspension, he will be required
to serve the sentence which was suspended38. This to some extent, is
similar to conditional discharge of the Kenyan practice.
E. ALTERNATIVES TO IMPRISONMENT
In the recent past, suggestions have been forwarded urging the
adoption of non-custodial rather than custodial penal policy. The merits of
a non-custodial sentence derive from both penological and economic
considerations. Non-custodial, sentences are cheaper than custodial ones
and are therefore preferred on economic grounds. Custodial sentences have
no more reformative effects than non-custodial ones. Many people are of
the conviction that imprisonment has several undesirable effects first, they
argue that it damages mental as well as physical health of the prisoner and
secondly, 'hardens' them due to contact with one another in an environment
of offenders!, and hence recidivism increases with length, and frequency of
custody39.
From the earlier discussion, its clear that a wide range of noncustodial sentences are available to courts. They include absolute and
conditional discharge, probation, security for good behaviour, fines, extramural penal, employment, restitution, and settlements. To the above-list,
one may add the option, of suspended sentences of imprisonment. They are
only potentially custodial in nature, because with the knowledge that he
(offender) is subject to a suspended sentence, he is likely to be deterred
from breaching the conditions imposed by the court. For this therefore, the
38
39
i)
ii)
iii)
iv)
v)
F. COMPENSATION: REVISITED
The Kenyan Penal Code and Criminal Procedure Code provide for
compensation but they are not adequate. As shown by the case of
Muln'ndia vs-R40, the East African Court of Appeal observed that the
power to award compensation,
40
(1966)EA425.
Page 291 of 382
1.
2.
3.
41
4.
G.
RESTITUTION
Under section 177 of the Criminal Procedure Code the court is
(a)
(b)
H.
COSTS
Under Section 171 (1) of the Criminal Procedure Code
The prosecution had not taken a hearing date for over twelve
months
43
In Kaisa v R44 the appellant who was twelve years old was
convicted of handling stolen property and was sentenced to
seven years imprisonment. On appeal it was held that no one
under the age of fourteen years can be imprisoned ; that no
more than the minimum sentence should be imposed and that
rehabilitation is the most important factor when sentencing
anyone so young. The appeal succeeded and a committal to
approved school substituted.
Section 191 (g) of the Childrens Act lays down that in the
case of a child who has attained the age of sixteen years,
should be dealt with in accordance with any Act which
provides for the establishment and regulation of Borstal
Institutions. The High Court had infact ruled on this point in
the case of Letoyiani and Another v R45 where Harris J ruled
before a court convicts a youthful offender it must first
consider whether he should be committed for training to a
borstal institution.
K. SENTENCING IN KENYA
The Kenyan bench has seen and witnessed diverse attitudes towards
sentencing. While the modern bench would find no difficulty in agreeing
that reformation and rehabilitation, are the most avowed policies to be
pursued, it is not doubted that a section, of it would still be heard to demur
to this policy. The concept of reformation is a modern recognition that
punishment is not an end in itself; a movement from the classical, concept
44
45
(1975) EA 260
(1972) EA 50.
Page 296 of 382
46
The Administration of Justice in Kenya, a talk to the students of A.H.l.T.I Kabete, 1970.
Page 297 of 382
itself
and
yet
would
provide
maximum
An Approach to Penal Administration in E. Africa. East African Law Journal (1966) Vol.2, PP
25.
Page 298 of 382
48
49
50
(1970)EA599.
(1946)13 E.A.C.A C.A. 97.
(1965)EA777.
Page 299 of 382
(1960)EA339 (C.A).
(1946)13 E.A.C.A 97.
Page 300 of 382
should run concurrently, not consecutively. In a later case of Khalif vsR53 the appellant was convicted of dangerous driving, failing to stop after
an accident and another offence. The High Court said that in the
circumstances of the case, the sentence of two months for failing to stop
will be served concurrently with the sentence for dangerous driving.
Concurrent sentences are exclusively awarded for related offences.
In Musa s/o Dakar -vs- R54 it was stated clearly that it is the universal
practice, in the absence of good reason to the contrary, to order sentences
for the related offences of house-breaking and stealing to run concurrently
with one another. This practice extends to similar combinations such as
theft and fraudulent false accounting, store breaking and theft, and such
like combinations.
A sentence of imprisonment in default of payment of a fine cannot
be made concurrent with any other sentence of imprisonment. In R vsOfunya55, the Magistrate convicted the respondents of offences under two
different Acts. Fines were imposed with prison sentences in default of
payment, and ordered that if the respondents went to prison, sentences
were to run concurrently. On review, the High Court ruled that the
Magistrate's order was improper.
What therefore emerges from the foregoing is that concurrent
sentences should normally be awarded, not only for offences committed in
the same transaction, but also for similar offences committed in a series of
transactions. Therefore, except in rare circumstances, where offences are
dealt with at a single trial, concurrent sentences should be awarded. This
can be justified on the premise that the criteria for joinder of charges and
those of concurrent sentences are almost the same.
53
54
55
(1973)EA3G4.
(1968) H.C.D (Tanzania) No.239.
(1970) EA 78.
Page 301 of 382
M.
57
58
The appeal court will only interfere with a sentence of the court below
where and when it is evident that the court has;
iii)
N.
COMMITTALS
Where a person aged eighteen and over is tried and convicted by a
59
60
(1960) EA 66.
(1962)EA682.
Page 304 of 382
It is required further that the court to which the offender has been
committed should ask him to either deny or admit his previous convictions.
This is rested upon the decision of Sachdeva J- in Patrick Kanja Muguku
vs- R65, the appellant and two others had jointly been charged before the
second class Magistrate at Kikuyu with bar-breaking thereby committing a
felony contrary to section 306(a) of the Penal Code. The appellant was
convicted and committed to the Senior Resident Magistrate for sentence.
The S.R.M sentenced him to two years' imprisonment with five strokes. No
inquiries were made regarding his previous convictions by among other
things not giving the appellant a chance to deny or admit such previous
convictions. The High Court quashed both the sentence and conviction and
Sachdeva -J- noted in his ruling that;
63
64
65
66
Asentencing court may be lenient to a convicted person on the ground that he is a first offender.
Page 306 of 382
CHAPTER SIXTEEN
A. INTRODUCTION
The law of contempt exists for the purpose of safeguarding the
administration of justice. In Kenya the law applicable in contempt is the
law for the time being applied by the High Court of justice in England
courtesy of section 5(1) of the Judicature Act. In England, contempt is
referred to as scandalising the court and is defined as:
Section 121 of the Penal Code Cap. 63 Laws of Kenya makes provision for
offences relating to judicial proceedings and the punishment to be imposed
but is silent as to whether they refer to contempt of court. However, section
121(3) states that the powers thereunder are additional to the power of the
High Court to punish for contempt of court. It can be deduced from this
that there are separate provisions on contempt of court.
When a court "takes cognizance" of an offence under the provisions of
section 121(1) of the Penal Code, the court should frame and record
thesubstance of the charge, call upon the accused person to show cause
67
why he should not be convicted upon that charge and give him a fair
opportunity to reply. In every such case the record should show that this
procedure has been followed and should contain an adequate role of the
accused person's reply, if any, and the courts decision. This was held in the
case Joseph Odhengo s/o Ogongo v R.68
a)
b)
C.
CRIMINAL CONTEMPT
68
(1954) 21 E.A.C.A.
Page 308 of 382
The conduct amounting to contempt of court does not have any defined
boundaries and it is not necessary that the incident takes place in a court of
justice.
Any word spoken or act done in the precincts of the court which
obstructs or interferes with the due administration of justice or is calculated
to do so amounts to contempt of court. It is also unnecessary that the
act/word be done/published wholly or partly in a court room itself nor the
contempt should be within the knowledge of the judicial officer dealing
with the contempt; examples include: -
manner;
-
F.
PURPOSE OF PUNISHMENT
The punishment is inflicted not for the purpose of protecting either
69
Criminal App. No. 4 & 5 of 1994 -The accused were fined KShs. 500,OOO/- or in default
imprisonment. See also the earlier case R v Wangari Muta Mathai & Others, Criminal
Application No. 53 of 1981, High Court, Nairobi, (unreported). In this case the con'temnor
having lost her appeal in a divorce case on the grounds of adultery gave an interview to a Viva
magazine (now defunct) alleging that the court was corrupt or incompetent.
Page 310 of 382
undermined or impaired.
The power to punish for contempt is not and has never been a secret
weapon of the courts. It is known or ought to be known by the public that
courts do possess that power and in appropriate and necessary
circumstances will exercise it. That power resides in the court and any
judge of the court can exercise it unless a particular judge(s) of that court
has done something which makes him unsuitable to act on the matter like
being involved in efforts to bring prosecution or drafting and approving the
charges.
Criticism of the judges conduct or of the conduct of the court even if
strongly worded is not contempt provided it is fair, temperate and made in
good faith and is not directed to the personal character of the judge or to
the impartiality of a judge or court. Lord Russell of Kiloween in the case of
R vs Cray said:
The courts need to balance cases of contempt to maintain its authority with
the right to freedom of speech.
G. PERSONS LIABLE
The holder of the office of the President is exempted from compliance with
the contempt of court law as per the provisions of section 14 of the
Constitution which grants him immunity from criminal or civil
70
(1900)2QB36
Page 311 of 382
proceedings.
71
72
H.
The right of appeal lies at the instance of the defendant. As in other cases
the proper procedure shall be followed in matters relating to criminal
appeal. Notice of appeal must be served on a proper officer.
CHAPTER SEVENTEEN
APPEALS
A. INTRODUCTION
After conviction and sentence the prisoner may appeal against the
sentence or conviction or both. The right to appeal is a creature of the
statute and is governed by the Criminal Procedure Code. However to
properly appreciate the Kenyan position reference to the English history is
germane.
Prior to 1957 the right of appeal by an aggrieved party to a superior
court was by way of case stated1. This method entailed an application by
an aggrieved party to the trial court to state the case for the High Courts
opinion. In the event that the trial court declined to state the case the
aggrieved party would apply to the High Court for an order of mandamus
compelling the trial court to state the case. Appeal by way of case stated
delimited arguments to points of law to preclude the superior court in
exercising this appellate jurisdiction from examining evidence de novo.
Unlike the approach via 'case stated an appeal is a creature of the statute.
Appeals may be divided into two broad categories, namely;
a)
Orfield Lester, Criminal Procedure from Arrest to Appeal", (Connecticut Greenwood Press,
1973) (P.494).
Page 314 of 382
2
3
4
5
6
The court always has to ask the question whether the determination
is one which could be reached by a reasonable tribunal applying its judicial
mind. Thus, it was lucidly spelt out in the case of Edwards (Inspector of
Taxes) -vs- Bairstow and Another8 that:
7
8
Ibid at 130.
(1953) 3 All E.R 48.
Page 316 of 382
(1975)EA262.
Page 317 of 382
D.
LIMITATION OF TIME
10
11
12
(1973)EA368.
(1958)EA11.
Chapter 75 of the Laws of Kenya Criminal Procedure Code.
Page 318 of 382
13
14
(1971)E.A421.
Section 348 - In the case of David Mbewa Ndeda v Republic Criminal Appeal No. 1 of 1989 the
Kenyan Court of Appeal composed of Justices of Appeal Gachuhi, Masime (Now deceased) and
Omolo (then Ag. Judqe of Appeal) while confirming the statutory position stated that 'the plea
mus'l have been unequivocal citing an earlier case of Mains vK (1973)EA 445 16. EA 380.
Page 319 of 382
OK
second appeal it was contended that the supreme court was not entitled to
summarily reject an appeal under section 352(2) except where the grounds
of appeal are that the conviction is against the weight of evidence, or that
the sentence is excessive whereas in the instant case a ground of appeal
was that "the Magistrate erred, both on a point of law and facts". It was
held, in dismissing the appeal, that: Firstly, the ground of appeal, that "the
Magistrate erred on both point of law and facts" was too vague to
constitute such a ground of appeal as to take it (appeal) outside section
352(2) and in view of the mandatory requirements of section 350(2) of the
Criminal Procedure Code, the supreme court quite properly ignored it as
being no proper ground of appeal, at all and would have been within its
rights to have struck it out. Secondly, it was held that since the remaining
grounds of appeal, admittedly fell within, section 352(2), the Supreme
Court had jurisdiction to dismiss the appeal summarily.
15
(1960)E.A380.
Page 320 of 382
Various other cases have dealt with the issue. The cases of Karioko
s/o Gichohi vs- R16; Lighton alia Magege vs- R17 and Mulakh vs- R18
were likewise concerned with the summary rejection of appeals under
section 352(2) of the Criminal Procedure Code and in each case, the Court
of Appeal in allowing the appeals held that a first appeal may be rejected
summarily under the relevant section without the appellant, or it's advocate
being given an opportunity of being heard, only if the memorandum of
appeal contains no ground of appeal other than that the conviction is
against the weight of evidence or that the sentence is excessive. In all the
above three cases, the other grounds of appeal which took the appeal,
outside the section providing for summary rejection of appeals were
specific, the respect in which the trial court was alleged to have erred being
stated with particularity. However, in the Pudo s/o Aranda case, it was
otherwise. It was not only too vague to say that the Magistrate erred on
point of law and of fact but it was inconsistent with the statutory
requirement regarding particularity, and therefore the memorandum was
too wanting in precision to constitute a proper ground of appeal so as to
take it outside the section providing for summary rejection.
16
17
18
single identifying witness who saw him in the light of an electric bulb and
identified him six weeks later. Another eye witness failed to identify him.
There was no corroborative evidence. The appeal to the High Court was
summarily rejected. On further appeal to the Court of Appeal it was held
that whether a conviction on the identification of a single witness can be
maintained is a question of mixed law and fact the appeal should not have
been summarily dismissed, and the appeal, to the Court of Appeal was
allowed.
23
down by the Court of Appeal for East Africa in the case of Elgood vsR24. The appellant Doctor was charged in the supreme court of Seychelles
with several counts of procuring for women drugs knowing that the drugs
were intended to be used to procure miscarriages contrary to law. He was
convicted upon medical evidence given, for the prosecution by three
doctors and inferences drawn from a statement made to the police by the
appellant himself. Medical evidence was also given for the defence by
three doctors. There was considerable disagreement between medical
witnesses, only one of whom had special qualifications in the particular
field concerned, and that one had only limited specialist knowledge. On
appeal the appellant applied to call additional evidence, which was not
available in Seychelles, from a highly qualified and experienced specialist
in obstetrics and gynaecology. This evidence was admitted, and it was to
the effect that the treatment given by the appellant was perfectly legitimate
therapeutic treatment which would not possibly lead to an abortion. The
appeal was thus allowed and in its ruling, the court made the following
observation, namely, the principles upon which additional evidence may be
admitted:
1.
a)
24
b)
c)
The court applied these principles as earlier pronounced in the R vsParks case26. In this case Parker, C-J noted:
26
Supra.
Page 325 of 382
H.
(1936)3 E.A.C.A. 40. See also Rule 29 of the Court of Appeal Rules.
(1945)12 E.A.C.A. 60
Mohammed Hussein -vs- Price Controller (1943)10 E.A.C.A 72
Section 359 Criminal Procedure Code (Cap 75).
Page 326 of 382
31
32
33
where
this
is
possible
and
not
very
34
should either sit again (both) so that there is "equal bias" other than tilting
the "balance of bias" by having only one of the two to resit. It is however
much better that both do not re-sit again. These are the strange imperatives
which are required by natural justice which arguably ought to be central, in
every trial or session in which the guilt of a person is determined.
35
(1967)E.A334
Page 329 of 382
was to remit the matter to the High Court for the original, appeal to be
reheard. This was in accordance with the principles behind the decisions in
the two cases of Zaver vs- R36 and Yosefu Muwonge and two others vsUganda37 where the Court of Appeal ordered a re-hearing in cases where
the record or an important part thereof had been lost.
K.
CONCLUSION
From the above, it is clear that there are various principles upon
which the appellate court will allow or dismiss an appeal. The overriding
principle is that if a failure or miscarriage of justice has been occasioned,
then an appeal would, be allowed. A simple procedural error that is not of
such. Great weight as to occasion a failure of justice cannot warrant the
appeal being allowed. Thus, the Court of Appeal in Murimi -vs- R38 noted
that it does not reverse a conviction on account of any error by the trial
court unless the error has intact occasioned a failure of justice. It must
however be understood that procedural propriety is very important and that
the rules of procedure are framed to provide a fair trial. A breach of the
procedural rules therefore raises a presumption that there has been an
unfair trial ,However, trivial defects which have not occasioned a failure
of, or miscarriage of justice will not be enough ground of appeal.
There are commonly known grounds of appeal. These include:
i)
ii)
iii)
iv)
Absence of Corroboration.
36
37
38
(1967) E. A 542.
Page 330 of 382
v)
vi)
vii)
An unlawful sentence.
These are some of the more common grounds of appeal, but the list
is not closed. As the legal system develops, one would hope that more
grounds will be continually added so that an aggrieved party has all the
legal machinery at his service.
39
(1967)E.A39.
Page 331 of 382
CHAPTER EIGHTEEN
DIRECTIONS IN THE NATURE OF HABEAS CORPUS
A.
INTRODUCTION
Habeas Corpus applications in Kenya are made under section 389 of
SaundersJohn, Words and phrases legally defined", 2nd Ed, London, Buttersworths,1969
Vol.2 pp.341.
II Halsbury's Laws, 3rd ed. 24.
Page 332 of 382
Court to issue the directions. There are various reasons which may
necessitate the issuance of the directions as discussed below.
The writ of 'habeas corpus' provides an efficacious means of testing
the validity of a person's imprisonment or detention. Nominally sought by
the crown, the remedy is in reality freely available to any prisoner and to
any one acting on his behalf, without regard to nationality3. Thus an alien
detained pending deportation can apply for 'habeas corpus' to question the
validity of the deportation order for example by alleging that what is
asserted, to be lawful deportation is in fact unlawful extradition at the
request of a foreign government. This was in fact the situation in R -vsHome Secretary ex parte Soblen4.
B.
3
4
5
6
Wade, H.W.R, Administrative Law, 3rd ed, Oxford, Clarendon Press, 1971 (Chapter 4.)
(1963)2 QB243.
(1608)2 Rolle's Abridg. 69.
R -vs- Pinckrey (1904)2 K.B 84 - Holding that the writ could not even be issued and allowed to
lie until the respondent returned.
Page 333 of 382
a)
that any person within, the limits of Kenya be brought' up before the
court to be dealt with according to law;
b)
c)
d)
e)
that any prisoner within those limits be removed, from one custody
to another for the purpose of trial; and.
f)
8
9
10
11
12
(1966)E.A445.
(1955)22 E.A.C.A 381
Section 378 by Act No. 13 of 1967 - Criminal Procedure Code (Cap 75).
Page 335 of 382
13
14
15
16
See Rule 2 and the case of Phillip Ratemo v Republic Misc. Application No. 465 of 1955.
Rule 3
Rule 9
Page 337 of 382
CHAPTER NINETEEN
REVISIONS
A.
INTRODUCTION
Revision is a power bestowed upon a court to revise the records of
alter or reverse the order.3 The High Court cannot inflict a greater
punishment for the offence which in the opinion of the High Court the
accused has committed than might have been inflicted by the court which
imposed the sentence4.
Section 364(5) states that when an appeal lies from a finding,
sentence or order, and no appeal is brought, no proceeding by way of
revision shall be entertained at the instance of the party who could have
appealed.
The High Court when exercising its powers of revision has a
discretion to hear or not to hear the parties either personally or through
their advocates. However, the court may hear any party either personally or
by an advocate5. This is so considering the requirement of section 364(2)
which states:
and that court is to make orders in conformity with the decision so certified
and where it is necessary shall amend, the record to accord with the
decision7.
This is briefly the procedural requirements when a court either
subordinate or the High Court has to exercise revisional powers. Having so
described the procedure, it is necessary to examine how courts have
exercised this jurisdiction and further how the procedure, as laid in the
Criminal Procedure Code has been applied.
B. REVISION IN PRACTICE
One of the questions which have arisen with regard to revision is
whether it is competent for the court to revise its own order made on
revision, that is, if the court has revised an order is it competent for it to
purport to revise that ' revision' This particular problem received judicial
consideration in the Ugandan case of Kiwala vs Uganda8. It considered
whether the High Court can revise its own order made on revision. The
respondent, a public servant was convicted of stealing some l0,000/= by
servant contrary to section 252 of the Ugandan Penal Code, by a Chief
Magistrate, and was sentenced to a fine of 5,000/- or 18 months
imprisonment in default. Before this sentence was imposed the respondent
by his counsel indicated that he would pay back the money which he had
stolen within seven days, and this influenced the Chief Magistrate in
imposing the sentence which he did. The money was never infact paid
back. In the course of a subsequent application for bail pending appeal to
the High Court, the judge of his own motion reduced the sentence to six
months on the ground that 18 months was illegal as an alternative to a Shs.
5,000/- fine. The D.P.P then made the present application for a revisional
7
8
order to enhance the sentence. It was argued that a fine of Shs. 5,000/- or
six months' imprisonment in default was so inadequate as to involve a
miscarriage of justice. Sir Udo Udoma C-J, held that it was competent for
the judge to correct the sentence Suo Motto on the bail application. The
application was allowed and the original sentence set aside and a sentence
of six years' imprisonment substituted. An appeal against this order was
obliged, the appellant claiming that the C-j had no jurisdiction to make this
order because the matter had already been dealt with on revision. The court
of appeal for East Africa allowed the appeal and held inter-alia that:
(i)
the order of the judge reducing the sentence was not made on appeal
and could only have been made in the exercise of his powers of
revision under the Criminal Procedure Code;
(ii)
The general rule on which the above rests is expressed by the maxim
'INTEREST REIPUBLICAE UT SIT FINIS LITIUM', that when an act is
the subject of litigation and final judgment is entered by a competent court,
that is the end of the matter except where there is statutory provision for
further consideration of that judgment on appeal or on revision. But once
that right has been exercised and the appeal or revision heard, then again
the litigation, comes to an end unless there is again more statutory
provision for further appeal or revision. The Criminal. Procedure Code
only provides for one revision. No provision is made for further revision or
for the High Court to revise its own order of revision. The court once it has
exercised its powers of revision is "functus officio" and has no authority to
revise its own orders. This is further spelt out by the case of R vs- Sironga
"On the other hand the capacity in which the High Court
passes an order confirming a sentence has to be considered,
for if it has exercised its revisional powers, I am then in
agreement with the argument that it is "functus officio" and
cannot subsequently revise an order so made10".
In this case it was held that an order passed by the High Court in
confirmation cannot be the subject of revision, and this would be even
more clearly the reason when the first order was one passed in revision.
This decision has been subjected to further judicial consideration without
dissent. The subsequent cases of Suleman Ahmed vs- R11 and Michael
Meshaka vs- R12 have not had the effect of changing that position and
have only given it more weight. The two cases dealt with the question, as
to when an order passed in confirmation became a revisional order and on
the right of appeal to the High Court. The emanating judicial
pronouncements indicate that a conviction or a sentence merely confirmed
remains that of the subordinate court and an appeal lies to the High Court;
but where a conviction or sentence has been altered this then becomes a
revisional order of the High Court and no appeal lies to the High Court,
Therefore, once the High Court has made a revisional order it cannot revise
it again and only an appeal can be lodged to the Court of Appeal, if such
provision has been provided. One therefore agrees with the East African
Court of Appeal that:
9
10
11
12
"... once a case has been revised by the High Court, that
court becomes 'functus officio and that the revision is final
unless there is an appeal to this court [court of Appeal]...13"
In the case of Michael s/o Meshaka vs- R14 the appellant had been
convicted by a Magistrate of rape and sentenced to two years
imprisonment and eight strokes. Two days later, and with a view to
appealing, he applied for a copy of the judgment and about the same time
the relevant papers were sent to the High Court for confirmation of
sentence. The sentence came before a judge for confirmation before the
time allowed for appeal had expired, despite which the judge revised the
finding, altered the conviction to one of indecent assault, set aside, the
sentence of corporal punishment and reduced the sentence to 18 months'
imprisonment. Subsequently, the appellant having duly filed his appeal,
when it came before the court for hearing the judge indicated that he would
be disposed to allow the appeal on the merits but was unable to entertain it
because of the order made in revision by the first judge. The appellant
thereupon, appealed again challenging the decision of the High. Court that
it had no jurisdiction to hear the appeal. The Court of Appeal in dismissing
the appeal made- the following holdings;
(i)
the order of the first judge was a revisional order of the High Court
and could not be considered to be still the order of the subordinate
court made in conformity with a revisional order of the High Court;
(ii)
13
14
Procedure Code or any other enactment, no appeal lay and the High
Court was right in holding that the appeal could not be entertained.
The reason for this is that if revisional powers are exercised, before
an actual or potential appeal is disposed of this may result in the accused
losing his right of appeal to the High Court and even to the Court of
Appeal.
15
16
C.
(i)
(ii)
17
(1962)EA650.
Page 345 of 382
constant.
The issue of whether it is competent for a court to revise an acquittal has
been considered. In the Tanzanian case of R vs- Telenga18 revision of an
acquittal was in issue. The accused pleaded not guilty to an offence of
corruption under the Corruption Ordinance. Providence of the prosecution
and defence was taken and the Magistrate then realized that consent had
not been obtained in writing from the Attorney-General as required by
section 14 of the aforesaid Ordinance. The prosecution then made an
application to withdraw the charge, and since the defence had already been
taken, the relevant provisions of the Criminal Procedure Code under which
the application was made, made it a requirement that the accused be
acquitted. The court in granting the application acquitted the accused. The
D.P.P asked for a revision by the High Court to set aside the whole
proceedings including the acquittal. Platt -J- held that the Criminal
Procedure Code (Tanzania) at section 329(4), whose equivalent provisions
are section 364(1) of Cap 75 precludes the High Court from considering
the revision of proceedings which result in an acquittal.
As seen from above, the court does not enjoy jurisdiction to revise
proceedings culminating in an acquittal. However, a finding of autrefois
acquit is treated differently. In the case of Semuyaga -vs- Uganda19, it
was held that a finding of autrefois acquit is a final finding but subject to
revision.
The High Court's revisional jurisdiction has also been considered
with regard to a person being charged under an Act not yet in force. The
relevant case is R -vs- Indo Parsad Dave20 The accused was charged and
convicted, of his own plea of guilty of inter-alia failing to keep a poison's
18
19
20
(1967)EA407.
(1975)EA186
(1963)E.A65.
Page 346 of 382
21
22
23
The East African Court of Appeal held that firstly an order made
under section 305(1) does not amount to a sentence and that in revision the
High Court has power to substitute a sentence of imprisonment for a
probation order to come up for sentence if called upon.
D.
26
27
accused, was acquitted and was awarded Shs. 500/- as compensation as the
Magistrate regarded it "frivolous in the extreme for him to have been recharged". About a month, earlier the accused, had been charged with an
exactly similar charge-but it was withdrawn. The present case was brought
before the Supreme Court by way at revision at the instance of the
Attorney-General., to review the finding that the charge was frivolous.
Edmunds -J- before whom this case originally came adjourned it for
consideration before a full bench. At the subsequent hearing, counsel for
the accused took preliminary point that section 364(5) of the Criminal
Procedure Code, precluded the court from exercising revisional jurisdiction
because the matter was brought to the notice of the court by a party who
had a right of appeal against the Magistrate's decision byway of case
stated. The Crown made two arguments; Firstly that on the facts, this was
not a frivolous or vexatious prosecution and that the question whether it
was or was not, was one of fact, and that an appeal by way of case stated
did not lie. Secondly, that, if an appeal did originally lie, the time for
preferring an appeal had expired when the crown requested the court to
exercise its powers of revision and that sub-section (5) of section 364 is not
designed to exclude the power to entertain a revision in such
circumstances. In setting aside the order of compensation., Rudd Ag C-J,
Connell and Murphy J made, the following ruling, that:
(h)
(ii)
the supreme court can, in its own discretion, act 'suo motto' even
where the matter has been brought to its notice by an aggrieved
party who had a right of appeal.
28
(1970)EA638.
Page 351 of 382
"If, before the court has completed its task in regard to the
case, an application to withdraw the plea is made and if its
made for reasons which the court deems valid and which
perhaps it had previously had no opportunity of considering
is the court powerless to accede to it? It would be
29
30
Ibid at 640.
(1970)2 W.L.R 21
Page 352 of 382
(1975)E.A 186.
Page 353 of 382
day. The Magistrate upheld the submission, and the state applied to the
High Court for a revision of the order which was granted on the ground
that the offences charged were not based on the same facts. On further
appeal, the appellant contended that the revision application was out of
time. The state contended that the application for revision made by it in the
High Court had been incompetent as being a challenge to an interlocutory
ruling in the course of a trial. The appellate court held that the finding of
'autrefois acquit was a final order from which revision lay and therefore
the finding of the High Court was correct. The appeal was thus dismissed.
This case shows that an order of 'autrefois acquit' is a final order or
finding and it is subject to revision. It is not to be understood as meaning
'acquit'. The finding that a person had been acquitted of a certain offence
charged does not mean the same thing as the acquittal itself.
F.
and sentence in criminal and civil cases concerning the same persons and
based on the same facts is whether different. Findings in subsequent
findings of the civil proceedings can affect the results of a criminal case.
There is no clear statutory provision in the Criminal Procedure Code on the
issue but one may invoke the Evidence Act32 that since the standard of
proof in a civil case33 is on a balance of probabilities and that in a criminal
trial is beyond reasonable doubt, it is unlikely that the civil findings will
greatly affect the outcome of the criminal trial. This issue was considered
32
33
34
(1957)EA212,
Page 355 of 382
CHAPTER TWENTY
RETRIAL
A. INTRODUCTION
Although, new trials were granted in civil cases as early as the
fourteenth century, they were not granted in criminal cases until the latter
half of the seventeen the century. Although there were two cases in 1660
allowing a new trial upon the application of the prosecution, the
developing concept of double jeopardy prevented the rule from taking
hold. In 1673, a new trial was granted after a conviction of perjury. Since
then the defendant may apply for a new trial. The grounds for new trial
were broad in scope, covering errors in the admission or exclusion of
evidence, improper instructions, a verdict against the weight of the
evidence, or the furtherance of the ends of justice, However, no new trial
could be granted in felony cases.
The function of a motion for a new trial is to call to the attention of
the trial court some error which was committed upon the trial or to some
newly discovered evidence which was not obtainable at the trial. By means
of such a motion it is possible for the trial court to correct errors without
subjecting the defendant to the expense, delay and inconvenience of an
appeal.
(No.2)1, where a retrial had been ordered and the jury disagreed, it was
held that there had not been a retrial. A question has arisen as to whether to
order a retrial is a matter of practice or of procedure. The Privy Council in
the case of Ross -vs- R2, was of the view that it was both.
The discretion of the court to order a retrial is one that ought to be
exercised with great care. This exercise is not done randomly but is
grounded on well formulated principles as developed by the courts. There
are several factors to be considered when the court is deciding whether or
not to order a retrial. These factors have been spelt out in the case of
Fatehali Manji vs- R3 The appellant was charged with the theft of a selfstarter. The prosecution alleged that it was stolen from a vehicle at Arusha
on June 6th 1965, and that the appellant had it in his possession eight days
later when it was resold, The appellant's defence was that he had purchased
the self-starter from a shop in Nairobi on June 10th 1965 and he produced
a receipt. The prosecution led hearsay evidence without leave that the shop
did not exist. The Magistrate called, a police officer from Nairobi whose
evidence he accepted, to testify that the shop did not exist. The appellant
was convicted. On appeal to the High Court, leave, was given to adduce
additional evidence to establish the existence of the shop. Eventually the
prosecution conceded that the police officer was in error and the judge
ordered a retrial, being influenced by the inadmissible evidence. On further
appeal to the Court of Appeal, the question to be decided was whether the
order for retrial was justified or not. The Court of Appeal at Nairobi
presided over by Sir Clement de Lestang, Ag. President, Spry Ag V-P and
Law J.A held that:
1
2
3
(i)
In general a retrial will be ordered when the original trial was illegal
or defective. It was further observed, that each case must depend on
its own facts and circumstances and an order for retrial should only
be made where the interests of justice require it.
(ii)
the original trial was neither illegal nor defective and in the
circumstances of the case it would he unfair to require the appellant
to stand a new trial.
The court went further and restated the other conditions such as that
a retrial will not be warranted merely because of insufficiency of evidence.
It is to be noted that a retrial will not be ordered, if by so doing an.
Injustice will be caused or occasioned. What however, is "an injustice" has
not been judicially determined. However, a clue as to what would, amount
to an. injustice is offered by the above case in which. Sir Clement stated:
Ibid at 344-345.
Page 359 of 382
5
6
7
(1969)LA433
(1944) AC 149
(1964)EA481
Page 360 of 382
It was further noted that an order of retrial will not be given for purposes of
enabling the prosecution to fill up gaps in its evidence at the first trial.
Even where a conviction is vitiated by mistake of the trial, court for which
the prosecution, is not to blame, it does not necessarily follow that a retrial
should be ordered. Each case must depend on its particular facts and
circumstances and an order for retrial should only be made where the
interests of justice require it and should not be ordered where it is likely to
cause an injustice to the accused person"9.
In Aloys Awori vs- Uganda10, the issue of retrial was at hand. The
appeal of the appellant against his conviction based on inadmissible
evidence was allowed. On the application by the state for a retrial, Russel
J. held that the trial was neither illegal nor defective and an order for a
retrial, would give the prosecution an opportunity of filling in gaps in its
case. The application was thus refused on that ground. The court further
observed that to give the prosecution an opportunity of filling in gaps in
the prosecution case would be contrary to the well established principle
'NEMO BIS VEXARI DEBET PRO EADEM CAUSA' - it is a rule of law
that a man shall not be twice vexed for one and the same cause.
Sometimes, the trial may be a nullity through no fault of the
prosecution. In certain of such circumstances a retrial may be ordered. In
8
9
10
(1969)EA433at438.
As per Russel -.1- Ibid at 438
(1972)EA469.
Page 361 of 382
MKanake vs- R11 the trial was a nullity not by fault of the prosecution.
The evidence at the appellant's trial for murder consisted of an alleged
confession, the evidence of an adult eye witness and of five small children.
The appellant was informed of his right to give evidence or to call
witnesses on the admissibility of the confession, the adult witness had
made a statement to the police that he had not seen the deceased on the day
of her death, and the judge had not recorded that the children were of
sufficient intelligence and understood the duty of speaking the truth.
Counsel for the respondent asked for an order for a retrial. The Court of
Appeal ruled that since the retrial was not asked for to fill gaps in the
evidence nor to rectify faults of the prosecution it would be ordered.
At yet other times, the original trial may not be illegal or defective
but if a retrial, will occasion an injustice to the accused, then it will not be
ordered. The case of Merali & Others -vs- R12 discusses the point where
the appellant together with two others were charged jointly before a
Magistrate with stealing goods in transit. The appellants appealed to the
High Court against then-conviction. The judge, did not find that the trial
was illegal or defective, but after stating that the Magistrate dealt with the
defence and not with the prosecution evidence, he ordered a retrial. The
appellant appealed again. The Court of Appeal held inter-alia that a retrial
may be ordered only when the original trial was illegal or defective. The
court further held that a retrial may be ordered if the interests of justice so
require and if no prejudice is caused to the accused. The order for retrial
was set aside.
A retrial may be ordered if the court finds that an accused person
was convicted of an offence other than the one which was either charged or
11
12
(1973)EA67
(1971)EA221
Page 362 of 382
ought to have been charged with. In Tamamo -vs- R13 the accused was
charged with driving a vehicle whilst under the influence of drink. Section
44(1) of the Traffic Act14 provides for three different offences 'driving',
'attempting to drive' and 'being in charge of " a motor vehicle whilst under
the influence of drink to such an extent as to be incapable of proper control
of the vehicle, and the accused was convicted and sentenced. On appeal,
Trevelyan -J- set both the conviction and sentence aside and ordered a
retrial on the ground that the accused was never charged with "being in
charge" of a motor vehicle, and accordingly the conviction and sentence
should be set aside. The court in its discretion, therefore ordered a retrial.
The proceedings of the trial may be irregular and whether the
irregularity is reason enough to warrant an order for retrial must be
investigated. The case of Ratilal Shah -vs- R15 focuses on the point and
discusses what to consider when an applicant has raised the issue of
irregularity. In this case a salesman, driver employed by a brewery altered
an invoice for five cases of beer to show that he delivered fifteen cases and
made out another invoice showing that he had delivered, fifteen cases of
beer to a customer to whom no beer had been delivered. He then drove to
the appellant's shop and offered the appellant twenty cases of beer, which
was off-loaded at his store. The appellant was subsequently charged with
receiving or retaining stolen property. After hearing the evidence and
addresses, the Magistrate adjourned and a few days later delivered a short
written, judgment in which he convicted the appellant and sentenced him
finding that the salient facts were unchallenged but adding that he would
give his reasons in writing later, Subsequently, he recorded his full reasons
in a document headed "Findings", which was put with the record but never
13
14
15
(1969)EA176
Cap 403 laws of Kenya.
(1958)EA3.
Page 363 of 382
read out in court. On appeal from his conviction and sentence, the
appellant's counsel contended, that the procedure of the Magistrate was
irregular and not in compliance with the Criminal Procedure-Code. It was
held that a retrial should not be ordered unless the court is of the opinion
that on a proper consideration of the admissible or potentially admissible
evidence a conviction might result; and since the court was unable to hold
that there was no evidence to justify the Magistrate's finding that the
salesman driver formed the intention to steal when he fiddled the invoice
and that asportation occurred at the latest when he set off for the appellant's
shop; accordingly there was evidence to support a conviction for receiving
and there must be a re-trial. The court further observed that the judgment
of the Magistrate did not comply with section 169 of the Criminal
Procedure Code since there was no clear finding of fact and no reasons for
the decision. It further observed that an appellate court cannot look at
reasons written by a Magistrate after the conclusion of a trial but the
procedure adopted by the trial Magistrate did not necessarily invalidate the
conviction and an appellate court is entitled to entertain an appeal on the
merits if no injustice to the parties is thereby done and the record contains
sufficient material for the purpose. The two cases of Samwiri vs- R16 and
Desiderio Kawunya -vs- R17 were followed.
Therefore, its within the court's discretion, whether or not to order
that a case be tried again. This discretion is exercised on solid governing
principles. Although case law indicates that a retrial will not be ordered
merely on account of irregularities, it is well settled, that if such procedural
irregularities have indeed gone into the core of the matter and have occasioned an injustice or a miscarriage of justice, nothing will deter the court
from ordering a trial de novo. A retrial therefore becomes an important
16
17
B. INQUEST JURISDICTION
The inquest jurisdiction of courts is invoked in several
circumstances. Under section 366(1) when an officer in charge of a police
station or any other officer specially empowered receives information, that
a person has committed suicide1 or has been killed by another or by
accident2, or has died under circumstances raising reasonable suspicion
that some other person has committed, an offence3 is enjoined to give
information to the nearest Magistrate empowered to hold inquests.
C.
OCCURS
IN
POLICE
1
2
3
E. CONCLUSION
Inquests are very important owing to the premium that the
Constitution places on life 'ipso facto' whenever death occurs in unclear
circumstances the law makes it mandatory that an inquiry must be
4
5
6
7
with warrant 20
fear of 41 Accessory 30
Attorney-General 165
of
Bratty
additional
evidence on 269
-vs-
Attorney-
bail pending 46
constitutional position 2
powers 2, 3, 14
right of 299
Bail 31-69
summary
rejection
and
precision
of the 269 Appeals 264
from subordinate courts
264
summary allowance of
272
from the high court 276
Application 58
for habeas corpus under
Kenyan
law 287 Arrangements
32, 41 Arrest 16- 23
by a police officer 17
by a private person 20
by Magistrate 19
Page 369 of 382
application 58 as viewed by
courts 60 in Kenya 32
of Bracegirdle-vs-Oxley 265
pending
appeal
46,
51
of 64 Bond 56,
and Another
266
Martins
185,
210
43
for
in
Hassani
Mpanda
221
of Andiazi 175
.of
Attorney-General-vs-
of Elgood 273
of Eliud Mwaura 38
Lebiningin 78 of Lelawan
of Fuller 88
55
Tilak
Kachehakana
Mahmood 57
112
of
285
manslaughter 38 of Margaret
of Gray 261
of Jaffer 64
Abdalla
of
Joseph
Odhengo
s/o
60
of
Mangwera
Change
Maumba 103
Ogongo 258
of Kamau s/o Muga 84
of Kamwana s/o Mutia 82
of Kaplotwa s/o Tarino 192
of Karioko s/o Gichohi 270
of Khalif 251
of Kidasa 268
of Kimani and Maina -vsNathan
Kahara 135 of Kimanzia 237
of Kinyori s/o Kiraditu -vsRegina 151 of Kiwala-vsPage 371 of 382
Magata s/o
205
139
94
of
of
of
of Mbebi 158
Ogonyo Luora
of McBride 84
219
of Semuyaga-vs-Uganda 296,
of Merali 48
of Mita 232
of M'Mwenda 101
of Mohamed 233
295 of Telenge 98
of Molley 87
of Mukindia 242
of Mutua 138
of Nahashon Marenya 71
of
Nathan
Godfrey
Odhiambo Obiro
294
of Nathani 85
of Nemchand Govindji -vsRegina 52 of Odera 238 of
Ogalo 253 of Paul Ekai 184
of Paulo Lwevola 178 of
personal recognisance 57 of
Pritchard 195 of ProbatShah
285 of provocation 175 of
punishment 37, 39 of R -vsGabhai Jessa 54 of Ramanlal
Bhatt 110 of Ratilal Shah
222, 311 of Re Castings 217
of
Robert
Ndecho
and
Page 372 of 382
Marakaru 265
of law 97
of murder 127
of Thompson 88
of rape 83
of Uganda-vs-Keneri Opidi
73
two offences 92
ofWitherly-vs-Witherly 283
of Wood Green 69
of Yates 96
of
Yokobo
Uma
and
Another 86
of unlawful arrest 17
of Yusuf Maumb 95
78
of Zubairi 127
292
judge 98
constitutional
rights
130
Compensation
court
in
criminal
proceedings 258
revisited 242
of unfair remand 38
102, 143,
order
by
court
243
Constitution 130
act
Code 32
230
and
legal
rights
over
criminal
prosecutions
see
of manslaughter 160
Constitutional 4
197
of human rights 62
105
272
of Kenya Act 37
burden
Conviction 203
jurisdiction 276
131
of the office of the President
261
on
life
ipso
facto
314
Page 374 of 382
of
proof
see
bail application 62
commission 197
264
of
children
and
young
204
Bill 37, 3S
of human rights 43
of
unlawful
arrest
17
263, 295
guilty 165
powers 301
against prisoner 19
trial 127
of appeal 274
309
of guilty 148
184
on bail 40
on oath 110, 126, 150
onus of proof 195
to justify a committal 120
of sentence of imprisonment
235
Ex
facie
148
sentences
251
defence 204
of mens-rea 207
evolution 205
a witness 145
of case 112
of a trial 202
of complaint 114
of defence 201
of the appeal 49
of drunkenness 213
of the case 59
86,
287
young
persons
246
guilty on
i 5, 11
mens-rea 207
222
Resident 106
sanity 210
N Nolle prosequi 12
resumption of 190
102,
144
Pari
materia 26 Particulars 76
of the offence charged 74
Persons 107, 141, 230, 138,
261
joinder of 84 Plea 98, 102,
104, 135
of autrefois acquit, autrefois
convict, and pardon 102
of guilty 101-103, 139
of not guilty 140, 149
recording
of
99
Police
officer 18
arrest by 17 Practice 13, 241
Private
5,
6,
11,
20
Sections 71
/
private 4, 6
of guilty 28
of penal code 72
the severity of 43
purpose of 260
252
suspended 240
free on bail 68
judgment 295
of guilty 249
of imprisonment 229, 235,
298
of justice 253
of not guilty 103
of police supervision 238
suo motu 290 Sentencing
227, 245, 269, 298
historical development of
224
in Kenya 247
in traffic cases 244
of criminal justice 223
young
persons
and
245
criminal
courts
107
high
court
131
of
bail
pending
52