Criminal Litigation Process in Kenya

8/10/2019 Criminal Litigation Process in Kenya

1/194


2/194

@CMK 2013 2

The Basic Principles

Charles Mwaura Kamau

[A series of study notes precisely designed to make the process of revision fun

and most importantly effective. Welcome to the A Class. No more pre-

examination panic]


3/194

@CMK 2013 3


4/194

@CMK 2013 4

PREFACE

Firstly, I have endeavored to give a concise summary of the core principles and

procedures of criminal litigation as best as I could, (taking into account thetargeted level as well as the purpose), however, human nature should be taken

into account when reading the booklet.

All I Ask is that, you will be slow to judge but, quick to advice.

Secondly, I have taken great care to make sure that the materials within the

booklet are not covered by copyright protection. For the copyrighted material,

they have been used to the extent covered by fair use and proper referencingand acknowledgement adhered to.


5/194

@CMK 2013 5

Thirdly, in the course of reading this booklet, the reader should constantly be

conscious that this is more of a guide book, designed to serve as a springboard

to further research.

Lastly, but not in any way least, no warranties are given as to the accurateness of

any principle of law. For that matter, the reader is urged to always consult the

primary sources, (legislation and recent relevant case-law) for the correct

position of law.

CMK


6/194

@CMK 2013 6

Foreword

If I can give a student one corner of the subject and he

cannot find the other three, the lesson is not worth teaching

Confucius, Natural justice is not observed if the scales of

justice are tilted against one side all through the proceedings.

The principle of audi alteram partemmeans that both sides

must be fairly heard The dispensation of justice,in order to

achieve its ends, must be even-handed in form as well as in

content.


7/194

@CMK 2013 7

Table of Contents

Chapter 1 ................................................................................................. 20

CRIMINAL LAWPRINCIPLES.................................................................... 20

Elements of a Crime............................................................................ 20

Presumption of innocence .............................................................. 31

Burden of proof ............................................................................... 36


8/194

@CMK 2013 8

Standard of proof ............................................................................ 38

Right to Silence ............................................................................... 41

Rule against retroactivity ................................................................ 42

Classification of crimes.................................................................... 43

Chapter 2 ................................................................................................. 47

Defences .................................................................................................. 47

Minority age .................................................................................... 58

Insanity ............................................................................................ 58

Diminished Responsibility ............................................................... 60

Intoxication ..................................................................................... 62


9/194

@CMK 2013 9

Automatism ..................................................................................... 73

Self Defence .................................................................................... 77

Provocation ..................................................................................... 81

Duress and Necessity ...................................................................... 86

Double jeopardy and res judicata ................................................... 87

Chapter 3 ................................................................................................. 96

CRIMINAL PROCEDURE........................................................................... 96

Bail ................................................................................................. 107

Case Files ....................................................................................... 109

Prosecutors file ............................................................................ 110


10/194

@CMK 2013 10

Defence File ................................................................................... 122

Court File ....................................................................................... 125

Chapter 4 ............................................................................................... 127

The Trial Process ................................................................................... 127

Plea-taking proceedings: ............................................................... 128

Procedure at plea stage ................................................................ 129

Hearing Process; Trial Court .......................................................... 132

Examination-In-Chief (Direct Examination) .................................. 136

Cross Examination ......................................................................... 137

Re-Examination ............................................................................. 138


11/194

@CMK 2013 11

Closing Submissions ...................................................................... 139

Defence Hearing ............................................................................ 141

Judgment ....................................................................................... 142

Chapter 5 ............................................................................................... 152

EVIDENCE .............................................................................................. 152

General Principles of Evidence .......................................................... 152

The Best Evidence Rule ................................................................. 153

Relevance and exclusionary rules of evidence ............................. 154

Admissibility .................................................................................. 157


12/194

@CMK 2013 12

Hearsay ......................................................................................... 160

Admissions and confessions ......................................................... 168

Evidence of bad character............................................................. 186


13/194

@CMK 2013 13

CRIMINAL LITIGATION

The fundamental concepts of justice hold that rules and procedures willnot avoid constitutional challenge simply because they are authorised by

a statutory enactment or by a common law rule.

Our Criminal Law and our legal regimes were generally inherited from the

English legal system. (Having in mind Section 3 of the Judicature Act)

English jurisprudence has played a fundamental role in molding the

practice of law in this country. Therefore it is only prudent that we studythe English development for pointers on the natural trajectory of some of

the basic principles of criminal law.


14/194

@CMK 2013 14

It is important to note from the onset that, the purpose of criminal law

is to prohibit behavior that is considered as a serious wrong against an

individual or against some fundamental moral or social value in society.Thus, the content of the criminal law and the associated sanctions also

reflect the moral or social values held by a society, and these will

inevitably change over time. What this means is that, over time, the

boundaries of criminal law does shift.

Aims and objectives

At the end of the booklet the reader is expected to:-

a) Have a basic understanding of principles of criminal law.


15/194

@CMK 2013 15

b) Identify circumstances where there may be some conditions or

circumstances present which suggest that either no criminal

liability should be attached.(defences)

c) Understand the relevant pleadings and documents necessary for

criminal litigation. (file contents)

d) Apply the Criminal Procedure Code , the Penal Code and other

statutes relating to criminal litigation;

e) Understand the processes of criminal litigation generally;

f) Have a passing understanding of the rules of evidence which are

crucial in criminal litigation.


16/194

@CMK 2013 16

NOTE

This booklet is designed to supply the reader with only the basic

principles and should therefore be used in conjunction with The

Constitution of Kenya as well as other relevant statutes such as;

1. Criminal Procedure Code Cap 75 Laws of Kenya

2. Penal Code Cap 63 Laws of Kenya

3. Magistrates Courts Act Cap 10 Laws of Kenya

4. Evidence Act Cap 80 Laws of Kenya


17/194


18/194

@CMK 2013 18

13.Sexual Offences Act,2006

14.International crimes Act, 2008

The main areas covered in the booklet are:

Criminal law: this is the substantive law of crimes.This is one of the laws

legislated to guide human conduct in relation to another human being

and society in general.

Criminal Procedure: The process by which Criminal law trial is conducted.

Law of Evidence: this entails Obtaining facts (Investigations) and the

means of proving them.


19/194

@CMK 2013 19

Trial Advocacy-The skills involved in the litigation process


20/194

@CMK 2013 20

Chapter 1

CRIMINAL LAWPRINCIPLES

The primary purpose of the criminal law is to prohibit behavior that

represents a serious wrong against an individual or against some

fundamental social value in society.

Elements of a Crime

It is a basic principle of Criminal law that a person may not be convicted

of a crime unless the prosecution proves beyond reasonable doubt that:


21/194

@CMK 2013 21

he caused a certain event or state of affairs which is forbidden

by Criminal law (actus reus)

he had a defined state of mind in relation to causing the event or

the existence of the state of affairs. (mens rea ) that is, a person

must also have a guilty mind.

Actus reus

The action of the suspect may be deduced from:

Result crimes:


22/194

@CMK 2013 22

The actus reus generally requires that the defendant did an act

which is defined by law as being Criminal Offences such as murder,

assault or rape. These offences require proof of a result as part of

actus reus.

Conduct:

Some offences only require the action of the suspect to be proved.

This offences of conduct do not require proof of any result or

consequence.

Circumstances:

For other offences the actus reusof an offence may consist of elements

external to the actions of the suspect.


23/194

@CMK 2013 23

For example, in an offence of being drunk and disorderly, the

circumstance of the suspect being drunk and being found disorderly by

those who see him proves the offence.

NOTE

Some offences do not require any fault at all, but where fault is required

for criminal liability it may incorporate any or any combination of the

following ingredients:

Intent as to a consequence, a term which covers Xs purpose andalso Xs foresight of a virtually certain consequence;

Knowledge or belief as to a present fact (which exists);


24/194

@CMK 2013 24

Belief as to the highly probable or certain existence of a present

or future fact (which may or may not need to exist)

Belief as to the possible existence of a present or future fact

(which may or may not need to exist), including the concept of

subjective recklessness

Dishonesty

Negligence, requiring proof that Xs conduct fell below the

standard to be expected of a reasonable (and sober) person.

REMEMBER


25/194

@CMK 2013 25

An act does not make man guilty of a crime, unless his mind is also

guilty.

Mens Rea

As we have already seen, it is a general principle in Criminal law that the

accused person possesses the necessary mens rea at the time the actus

reusis committed.

Mens rea denotes the guilty mind. The mind must be guilty at the time of

carrying out the prohibited act.

There are 4 states of mind which separately or together constitute

mens rea;


26/194

@CMK 2013 26

Intention:

Direct intention

This means the suspect had the purpose, object, desire or

ultimate aim to commit the crime.

oblique intention

This means the suspect had an aim to commit one crime but ended up

committing another.


27/194

@CMK 2013 27

NOTE

It is difficult to define intention except consider each case on its own

merits.

Recklessness:

This means the taking of unjustified risks.

The court considers the following factors when deciding if an act was

reckless:

the likelihood of consequences,


28/194

@CMK 2013 28

how socially useful the acts are and

what and how easily precautions could be taken, to avoid or

minimize risk.

Negligence

Negligence means ones actions fell below the standard of an ordinary

reasonable man.

It covers the person who does something a reasonable man would not door not doing something a reasonable man would do.


29/194

@CMK 2013 29

The test is objective based onan ordinary reasonable man rather than

subjective, based on the defendant himself.

Transferred intent or malice:

The law holds that the defendant is liable for an offence if he has the

necessary mens rea and commits the actus reus even if the victim differs

from the one intended, or the consequence occurs in a different way.

For example:

Where a defendant fires a gun intending to kill X, but misses and instead

kills Y, he will not be able to escape liability for the murder of Y simply

because he had the intention to kill X.


30/194

@CMK 2013 30

Exceptions to the rule of mens rea

Strict Liability offences

This are Crimes which do not require intention, recklessness or negligence

as to one or more elements in the actus reus are known as offences of

strict liability or absolute prohibition.

The offences prescribe certain conduct and are regulatory in nature.

Vicarious Liability offences

These are offences whose liability is visited on the suspect for the acts of

others e.g. principal and agent relationship.


31/194

@CMK 2013 31

For example employers such as, Companies are charged through Board

of Directors, for the acts of its employees.

Presumption of innocence

The presumption of innocence is a vital, constitutionally guaranteed, right

of a person accused in a criminal trial and that right has been expressly

recognised in all of the major international human rights instruments

currently in force.

Under the presumption of innocence principle the court must start with

the idea that the accused has not committed the offence charged until

the prosecution proves otherwise.


32/194

@CMK 2013 32

The burden of proof is on the prosecution and any doubt should benefit

the accused.

In Sweet v Parsley [1970] AC 132, Lord Reid stated that:

there has for centuries been a presumption that Parliament did not

intend to make criminals of persons who were in no way blameworthy in

what they did. That means that whenever a section is silent as to mens

rea there is a presumption that, in order to give effect to the will of

Parliament, we must read in words appropriate to require mens rea .. it

is firmly established by a host of authorities that mens reais an essential

ingredient of every offence unless some reason can be found for holding

that that is not necessary


33/194

@CMK 2013 33

Thus, in interpreting an offence-creating statutory provision, the

starting-point for the court is, as Lord Nicholls of Birkenhead put it in B (A

Minor) v Director of Public Prosecutions [2000] 2 AC 428, 460, is:

the established common law presumption that a mental element,

traditionally labeled mens rea, is an essential ingredient unless Parliament

has indicated a contrary intention either expressly or by necessary

implication

The underlying rationale of the presumption is an essentially simple one:

that it is repugnant to ordinary notions of fairness for a prosecutor to

accuse a defendant of crime and for the defendant to be then required to


34/194

@CMK 2013 34

disprove the accusation on pain of conviction and punishment if he fails

to do so.

burden of proof

The burden of proof always lies with the prosecution and once a defence

is raised the accused is entitled to be acquitted unless the prosecution

disproves that defence.1

1 Woolmington v. DPP (1935).


35/194

@CMK 2013 35

It is not for the accused to establish his innocence, but for the

prosecution to establish his guilt. While the prosecution must prove the

guiltiness of the accused, there is no such burden laid on the accused toprove his innocence and it is sufficient for him to raise a doubt as to his

guilt; he is not bound to satisfy to the court of his innocence.

NOTE

This is a strong presumption, not easily displaced. The more serious the

crime, the more severe the potential consequences of conviction, and the

less readily it will be displaced.


36/194


37/194

@CMK 2013 37

If an accused argues that he is unfit to plead then he must prove that

unfitness on the balance of probabilities. If an accused raises the defence

of insanity or diminished responsibility he must prove, on the balance ofprobabilities that he was insane at the time of committing the offence.

Statute

The second exception is where the accused raises as statutory defence

and the statute provides for the accused to prove this defence on the

balance of probabilities.

Balance of probabilities


38/194

@CMK 2013 38

This means that the one can only succeed if he shows that his version

of events is morelikelythan not.

Standard of proof

The standard of proof is concerned with, what weight the Court should

place on the evidence that is placed before it.

The standard of proof is the threshold that the prosecution must meet in

order to secure a conviction against the accused.


39/194

@CMK 2013 39

The standard of proof in criminal law is higher than on the balance of

probabilities. Guilt must be shown beyond reasonable doubt. The

standard of proof was explained by

Proof beyond reasonable doubt

This does not mean proof beyond the shadow of a doubt.

It means that if the evidence is so strong against a man as to leave only a

remote possibility in his favour, which can be dismissed with the sentence


40/194

@CMK 2013 40

of course it is possible, but not in the least probably, the case is

proved beyond reasonable doubt, but nothing short of that will suffice.2

What this means is that if there is any doubt at all, in the mind of the

judge, then the accused is entitled to the benefit of that doubt and must

be found not guilty.

NOTE

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


41/194

@CMK 2013 41

In criminal matters the main role of the defence counsel is to create

doubt in the mind of the judge.

Right to Silence

The right to silence is guaranteed by the Constitution.

The right includes a privilege against self-incrimination and is closely

related to the presumption of innocence.

The reasoning is that: If it is the role of the prosecution to prove that anoffence has been committed then logically it should not be the

responsibility of the accused person to facilitate the prosecution by being


42/194

@CMK 2013 42

forced by the police to give them evidentiary materials that will be used

against him.

NOTE

Suspects enjoy a privilege not to incriminate themselves. That is to have

no comment. On any questions they opt not to answer.

At the trial an accused person may also choose not to testify.

Rule against retroactivity

Another widely accepted principle of criminal law is the rule against

retroactivity, which prohibits the imposition of ex post facto laws (i.e.,


43/194

@CMK 2013 43

laws that would allow an individual to be punished for conduct that was

not criminal at the time it was carried out).

Classification of crimes

Misdemeanors

This means petty crimes.

Felonies

This means serious offences.

Inchoate and Choate crimes


44/194

@CMK 2013 44

This means incomplete and complete criminal activity, examples

include: incitement, conspiracy and attempts

Specific intent

Offences of specific intent always require proof that X acted with a

particular state of mind, that is, the state of mind required by the legal

definition of the fault element.

An example of a state of mind labeled as a specific intent is the fault

element of murder, the intent to kill or cause grievous bodily harm.

The prosecution must always prove that X acted with one of these two

states of mind.


45/194

@CMK 2013 45

REMEMBER:

The notion of specific intent extends to some states of mind which are

not intentions.

Basic intent

Offences which do not require the prosecution to prove that X acted with

a specific intent have come to be known (confusingly) as offences of

basic intent.

This means, it is possible for X to be convicted of a basic intent offence

even if X did not act with the state of mind required by the legal definition

of the fault element.


46/194

@CMK 2013 46

In DPP v Newbury [1977] AC 500, Lord Salmon said:

What is called a basic intention . . . is an intention to do the acts which

constitute the crime.

NOTE

The terms specific intent and basic intent are not particularly

enlightening.

The case law provides some guidance, but there is no single, uniform testto be applied, and a very high degree of uncertainty.


47/194

@CMK 2013 47

In other words there are a number of alternative theories as to the

meanings of these two terms, and the criteria for categorising offences in

this way which on their part cause a great deal of uncertainty.

3

Chapter 2

Defences

Defences are an embodiment of complex human notions of fairness and

morality4

3For example See smith and Hogan criminal law cases and materials 9

thed. OUP


48/194

@CMK 2013 48

Criminal law recognises that certain acts should not be followed by

criminal proceedings, or at least should not lead to a conviction, because

of the presence of some specific factor or circumstance, such as thelegitimate entitlement to defend oneself in the face of unlawful force.

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


49/194

@CMK 2013 49

A fundamental reason why the criminal law contains a number of

defences is because it is not a tool for vengeance, but is one of the means

of attempting to ensure the peaceful existence of a community.

It is important to distinguish between a defence and mitigation. Where a

defendant successfully raises a defence, he or she is found not guilty, or is

convicted of a lesser offence. By contrast, mitigation means the defendant

has been found guilty but due to other factors his sentence should be

reduced.

Categories of defences


50/194

@CMK 2013 50

Defences in the criminal law can be categorised in a number of ways.

For example;

The first category would be where the defendant lacked sufficient

capacity to commit the crime, such as because of age or other similar

reasons such as insanity.

A second category of defences arises where the defendant has engaged in

the required physical element (actus reus) and fault element (mens rea)


51/194

@CMK 2013 51

of an offence but where some justifying or excusing circumstance

arises, such as legitimate defence or provocation.5

A third categorisation is to distinguish between defences that can lead to

an acquittal, such as legitimate defence, and a defence leading to a

reduction only in the nature of the crime involved, such as Intoxication .

A fourth method differentiates between defences that apply to all crimes

(such as legitimate defence), and those which apply to particular crimes

5This have sometimes been described as defences in the true sense. See Ormerod Smith

& Hogans Criminal Law 11th ed (Oxford University Press 2005) at 247.


52/194

@CMK 2013 52

only (such as provocation and diminished responsibility, which for

example only apply to murder and which also involve, as already

mentioned, a reduction from murder to manslaughter only).

One further well-recognised matter is based on the underlying rationale

for the defence: whether it is justificatory or excusatory.6

Another category is known as non-exculpatory defences this caters for

defences that for reasons other than blameworthiness or a lack of

capacity, a trial is unable to continue. Included here are, renunciation of a

6See Chalmers Criminal Defences and Pleas in Bar of Trial (Thomson, 2006) at Chapter 1.


53/194

@CMK 2013 53

right to prosecute, entrapment, other pleas in bar of trial (such as pre-

trial publicity or insanity), time bars, delay and res judicata.

Defences based on justification and excuse

Justification defences and excuse defences are similar in the sense that

the actus reus and mens rea for the offence has been established but they

are distinct in other important respects.

Justification-based defences imply that the conduct of the accused was

the right thing to do it was acceptable even though it satisfied thedefinition of the offence.


54/194

@CMK 2013 54

By contrast, excuse-based defences deem the conduct of the accused

as unacceptable and wrong, but there is a reason why the accused should

not be blamed, he or she should be excused or forgiven.

The philosopher HLA Hart refers to justified conduct as:

Something the law does not condemn or even welcomes

While excuse is claimed when

What has been done is something which is deplored, but thepsychological state of the agent when he did it exemplified one or more of


55/194

@CMK 2013 55

a variety of conditions which are held to rule out public condemnation

andpunishment of individuals.7

NOTE

A claim of justification focuses primarily on the act while a claim of excuse

focuses on the conduct of the individual.

7Hart Punishment and Responsibility: Essays in the Philosophy of Law (Oxford: Clarendon

Press, 1968) at 212-222.


56/194

@CMK 2013 56

In other words Claims of justifications concede that the definition of

the offence is satisfied, but challenge whether the act is wrongful; claims

of excuse concede that the act is wrongful, but seeks to avoid theattribution of the act to the actor. A justification speaks to the rightness of

an act; an excuse, to whether the actor is accountable for a concededly

wrongful act.8

REMEMBER

8Fletcher Rethinking Criminal Law (Boston: Little, Brown, 1978) at 759.


57/194

@CMK 2013 57

There are conflicting views as to whether it really matters whether a

defence is a justification or an excuse. 9 There is little difference so far as

the acquittal of the person relying on the defence is concerned. Thedefendant is not concerned whether the defence is labeled as a

justification or an excuse, but rather is only concerned with whether the

defence frees them of criminal liability.

Lack of Capacity Defence

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


58/194

@CMK 2013 58

Minority age

Those who are considered as being under the age of criminal

responsibility are held to be incapable of committing a crime. Sec 8 ofPenal code holds that those under the age of 8 years cannot be held

criminally responsible for their acts.

Insanity

Broadly speaking, an accused persons sanity may be relevant to the

criminal law in two ways.

Firstly, the accused may claim to be insane at the time of the commission

of the crime.


59/194

@CMK 2013 59

Secondly, the accused may claim to be insane at the time of the trial

and therefore unfit to plead to the charge. This second category is

technically a matter of procedure.

The common law defence of insanity was set out definitively in the

English case R v MNaghten1843) 4 St Tr (ns) 817. in 1843 where it was

held:

- Firstly, it must be clearly shown that, at the time of

committing the act, the defendant was labouring under a

defect of reason caused by a disease of the mind as not to

know the nature and quality of the act he was doing,


60/194

@CMK 2013 60

- secondly, that if he did know it (the nature), that he did

not know he was doing what was wrong.

NOTE

The legal definition of disease of the mind does not necessarily coincide

with the medical definition.

Diminished Responsibility

This defence is a partial defence to murder, reducing the verdict of

murder to manslaughter.

For the defence to apply there must be aberration or weakness of mind;

that there must be some form of mental unsoundness; that there must be


61/194

@CMK 2013 61

a state of mind which is bordering on, though not amounting to,

insanity; that there must be a mind so affected that responsibility is

diminished from full responsibility to partial responsibility.

In other words, the suspect in question must be only partially accountable

for his actions. And one can see running through the cases that there is

implied ... that there must be some form of mental disease.10

10

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


62/194

@CMK 2013 62

Intoxication

Traditionally, the intoxication excuse provided no defence for the

criminal offender and, as far back as 1551, it was held in Reniger vFogossa

11

if a person that is drunk kills another this shall be a felony, and he shall

be hanged for it, and yet he did it through ignorance, for when he was

drunk he had no understanding nor memory; but in as much as that

11(1551) 1 Plowd. 1,at 19; 75 ER 1, at 31


63/194

@CMK 2013 63

ignorance was occasioned by his own act and folly, he shall not be

privileged thereby

From this early decision, the rule or defence of intoxication has evolved

and may provide a defence to the committal of a criminal act in stringent

circumstances.

In the English case DPP v Beard it was held that intoxication may negate

intention in an offence involving specific intent, thus laying the

foundations for the modern position of classifying offences for the

purposes of the plea.


64/194

@CMK 2013 64

This approach was confirmed and became settled in the landmark UK

decision DPP v Majewski12

In the case the UK House of Lords

unanimously decided that the plea of intoxication is available in all crimesof specific intent but, reaffirming the traditional rule on self-induced

intoxication, held that it is generally no answer to crimes of basic or

general intent.

the Majewski rule

12 DPP v Majewski [1977] AC 443, 495


65/194

@CMK 2013 65

According to the House of Lords, D is liable for an offence of basic

intent:

(1) if D commits its external element without the fault usually required for

liability, if the absence of such fault results from self-induced intoxication;

or

(2) if Ds self-induced intoxication causes him or her to commit the

external element as an automaton.

According to Lord Elwyn-Jones:


66/194

@CMK 2013 66

If a man of his own volition takes a substance which causes him to cast

off the restraints of reason and conscience, no wrong is done to him by

holding him answerable criminally for any injury he may do while in thatcondition. His course of conduct in reducing himself by drugs and drink to

that condition in my view supplies the evidence of mens rea, of guilty

mind certainly sufficient for crimes of basic intent.

To give an example, suppose it is proved that D unlawfully killed another

person while under the influence of alcohol or some other drug

voluntarily taken, but it is reasonably possible that D lacked the intent tokill or cause grievous bodily harm on account of his or her intoxicated

state. In such a case, D is not liable for the specific intent offence of


67/194

@CMK 2013 67

murder but D is liable for the alternative basic intent offence of

manslaughter.

Thus, while it is true that D will not be held liable for an offence of

specific intent if he or she acted without the state of mind required for

liability, D will (usually) be liable for an alternative offence of basic

intent (regardless of the fact that D acted without the state of mind

required for that offence).

Justifying the rule

The chain of reasoning advanced by the House of Lords in support of the

Majewski rule may be summarised as follows:


68/194

@CMK 2013 68

(1) the maintenance of order and the need to keep public and private

violence under control is the prime purpose or one of the prime

purposesof the criminal law;

(2) self-induced intoxication through the consumption of alcohol has been

a factor in crimes of violence, such as assault, throughout the history of

crime, but in recent decades the problem has become more acute by

virtue of the voluntary consumption of other drugs;

(3) to allow D to avoid all liability in a case where he or she has caused

injury or death to another person, on the basis that he or she lacked the

fault element for liability because of self-induced intoxication, would fail


69/194

@CMK 2013 69

to give effect to the prime purpose of the criminal law; in particular, it

would:

(a) leave the citizen legally unprotected from unprovoked violence where

such violence was the consequence of drink or drugs having obliterated

the capacity of the perpetrator to know what he was doing or what were

its consequences;and

(b) shock the public, ... rightly bring the law into contempt and ...

certainly increase one of the really serious menaces facing society today

(4) to provide the community with sufficient protection, therefore, there

must be a substantive rule of law to the effect that self-induced


70/194

@CMK 2013 70

intoxication provides no defence to an allegation that D committed an

offence of basic intent

(5) the interests of the accused are adequately protected in that the trial

judge or magistrates will, when sentencing, always carefully [take] into

account all the circumstances ... before deciding which of the many

courses open should be adopted.

NOTE

The fact of self-induced intoxication does not, however, supply evidence

of mens rea for crimes of basic intent.


71/194

@CMK 2013 71

A distinction needs to be drawn between the usual case of voluntary

intoxication and the rare case of involuntary intoxication.

The situation where Ds drink or food has been surreptitiously laced with

a drug, or D has been physically restrained and the intoxicant forcibly

administered, are obvious examples of involuntary intoxication.

As Professor Glanville Williams observes, it would be inimical to the

safety of all of us if the judges announced that anyone could gain

exemption from the criminal law by getting drunk.13

13 G. Williams, Textbook of Criminal Law (2nd ed, 1983) p 466.


72/194

@CMK 2013 72

REMEMBER-

No universally logical test for distinguishing between crimes in

which voluntary intoxication can be advanced as a defense and

those in which it cannot; there is a large element of policy;

categorisation is achieved on an offence by offence basis.14

14See Heard [2007] EWCA Crim 125, [2008] QB 43, para 32, accepting counsels

submission at para 12(ii


73/194

@CMK 2013 73

It is well established that a person charged with an offence of

specific intent may rely on evidence of self-induced intoxication

to avoid liability for that offence.

Automatism

Automatism occurs where a defendant suffers a complete loss of self-

control caused by an external factor such as being hit on the head and

then losing all awareness of their actions.


74/194

@CMK 2013 74

Essentially automatism involves more than a claim that the individual

lacked mens rea (which he or she did); it involves a claim that he or she is

not acting, it is a complete denial of the actus reus.

Therefore, in order for a defendant to plead automatism it is necessary to

show that they suffered a complete loss of voluntary control, that this loss

of self-control was caused by an external factor and finally that they were

not at fault in losing capacity.

As mentioned above, the requirement of loss of self control being caused

by an external factor is an important aspect and ultimately distinguishes

inanity from automatism. If the loss of self-control is caused by an internal

factor the person is classified as insane. It can be extremely difficult at


75/194

@CMK 2013 75

times to distinguish between internal and external factors. Examples of

external factors include a blow to the head or the taking of prescribed

medication.

Finally, as regards, the third requirement, a defendant cannot plead

automatism if he or she is responsible for causing the condition. For

example, if the defendants mental state is caused by taking alcohol or an

illegal drug he or she cannot plead automatism.

In Bailey [1983] 1 WLR 760 the Court of Appeal came to the following

conclusion as to the scope of the defence of automatism:


76/194

@CMK 2013 76

[S]elf-induced automatism, other than due to intoxication from alcohol

or drugs, may provide a defence to crimes of basic intent. The question in

each case will be whether the prosecution have proved the necessaryelement of recklessness.

The word recklessness was used by the Court of Appeal to refer to the

fault required of D in bringing about the condition of automatism. To be

liable for an offence requiring subjective recklessness, it seems D would

need to have been subjectively reckless, at least, in bringing about his or

her condition:


77/194

@CMK 2013 77

Self Defence

The right of self defence is founded in the law of nature. In cases of

necessity the law of society fails: and the victim is remitted to his naturalrights.Foster

15

The law has always recognised that in certain situations individuals may

have to use force: to protect themselves or others; to protect property; to

prevent the commission of a crime or assist in a lawful arrest.

15 See a summary of Fosters position in Perkins & Boyce Criminal Law (3rd ed Foundation Press

1982) at 1121,


78/194

@CMK 2013 78

Legitimate use of force represents a balance between the needs of an

ordered society and the right of individuals to ensure their own

protection.

General scope of the defence

The general principle of legitimate defence is that the law allows the

accused to use such force against a threat that is reasonable and

necessary in the circumstances, as the accused believes them to be.

However, this causes a number of difficulties. For example;

- What is reasonable?

- How should lethal defensive force be defined?


79/194

@CMK 2013 79

- Should lethal defensive force be defined at all?

- Should a generalised test of reasonableness prevail?

- How do the elements of proportionality, imminence and

necessity apply?

reasonableness

A classic pronouncement of the approach can be found in the decision of

the UK Privy Council (formerly the final court of appeal from many British

Commonwealth states) in Palmer v R [1971] AC 814.:

Some attacks may be serious and dangerous. Others may not be. If there

is some relatively minor attack it would not be common sense to permit


80/194

@CMK 2013 80

some action of retaliation which was wholly out of proportion to the

necessities of the situationOf all these matters the good sense of the jury

will be the arbiter.

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

16

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


81/194

@CMK 2013 81

NOTE

Self-defence operates as a general defence, in that it applies to all criminal

offences.

Provocation

Provocation can be described as some act or series of acts (or words),

done by the deceased to the accused which causes the accused to


82/194

@CMK 2013 82

temporarily lose his or her self control at the time of the wrongful act.

Loss of self control is a key element in the defence of provocation

When raised successfully it operates to reduce murder to manslaughter.

Thus, even where the defence is successfully raised, the defendant will

still be held criminally liable for the lesser charge of manslaughter.

In R v Duffy[1949] 2 All ER 932, 932 ,Devlin J summarised the defence in a

sentence which is now regarded as a classic direction in provocation

cases:

Provocation is some act, or series of acts, done by the dead man to the

accused which would cause in any reasonable person, and actually causes


83/194

@CMK 2013 83

in the accused, a sudden and temporary loss of self-control, rendering

the accused so subject to passion as to make him or her for the moment

not master of his mind.

Thus, provocation exists where it is possible to answer the following three

questions in the affirmative:

Did the provocation cause the defendant to lose self-control?

Did the defendant kill the victim while still out of control?

Having accessed the gravity of the provocation to the particular

defendant by reference to his or her personal characteristics, could an


84/194

@CMK 2013 84

ordinary person be driven by provocation of that degree to act as the

defendant did, that is, to kill?

In essence, provocation is made up of two requirements.

First, the provocation had to be such as to temporarily deprive the person

provoked of the power of self-control, as a result of which he or she

committed the unlawful act which caused death.

Secondly, the provocation had to be such as would have made a

reasonable man act in the same way.

In modern times, these two requirements have come to be known as the

subjective and objective elements or tests of the defence of provocation.


85/194

@CMK 2013 85

For the purposes of the law on provocation the reasonable person

means:

[A]n ordinary person of either sex, not exceptionally excitable or

pugnacious, but possessed of such powers of self control as everyone is

entitled to expect that his fellow citizens will exercise as it is today.17

17 R v Camplin [1978] AC 705, 717 (Lord Diplock).


86/194

@CMK 2013 86

Duress and Necessity

The defences of duress and necessity cater for cases where the defendant

breaks the law in circumstances where his freedom of choice wasconstrained by serious threats.

Typically the defendant breaks the law rather than see the threats carried

out. The plea of duress applies in cases where the threats emanate from

a human source and have the form Do this or else; whereas the plea of

necessity covers situations where the threats are circumstantial or non-

human in origin.


87/194

@CMK 2013 87

Double jeopardy and res judicata

The prosecution cannot be allowed to say heads I win, tails we play

again.18

According to the Oxford English Dictionary, "double jeopardy" means "the

placing of a person in jeopardy twice for the same offence, against which

there is a common-law immunity".

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


88/194

@CMK 2013 88

InThe Ampthill Peerage [1977] AC 547 Lord Wilberforce said:

"[a]ny determination of disputable fact may, the law recognises, be

imperfect: the law aims at providing the best and safest solution

compatible with human fallibility and having reached that conclusion, it

closes the book. The law knows, and we all know, that sometimes fresh

material may be found, which perhaps might lead to a different result,

but, in the interests of peace, certainty, and security, it prevents further

inquiry. It is said that in doing this, the law is preferring justice to truth.

That may be so: these values cannot always coincide. The law does itsbest to reduce the gaps. But there are cases where the certainty of justice


89/194

@CMK 2013 89

prevails over the possibility of truth. . . and these are cases where the

law insists on finality.

The point was emphasised by Lord Simon of Glaisdale:

But the fundamental principle that it is in society's interest that there

should be some end to litigation is seen most characteristically in the

recognition by our law by every system of law of the finality of a

judgment. If the judgment has been obtained by fraud or collusion it is

considered as a nullity and the law provides machinery whereby its nullity

can be so established. If the judgment has been obtained in consequence

of some procedural irregularity, it may sometimes be set aside. But such


90/194

@CMK 2013 90

exceptional cases apart, the judgment must be allowed to conclude the

matter.

This appears to be the foundation of, and the justification for, the rule of

res judicata, that it is in the public interest that those engaged in a

litigation, whether directly or indirectly, should be able, and should

indeed be required, to carry on with their business in the future on the

basis that the decision reached by the courts is final.

The corollary is that it is not in the public interest for (scarce) public

resources and time to be occupied more than once in re-examining the

same issue between the same private parties.


91/194

@CMK 2013 91

Further, the rule against double jeopardy is said to promote the proper

carrying out of the function of investigating and prosecuting crime or at

least to prevent, or discourage, impropriety in those functions.

19

If itwere not there, it is said, then there would be a tendency for police and

prosecutors not to exert themselves unduly before a first prosecution,

because there would always be the opportunity of a second chance.

NOTE

19Ian Dennis, "Rethinking Double Jeopardy" [2000] Crim LR 933 at 941: "The double

jeopardy rule is said to promote efficient investigation and prosecution of offenders

because the police and the CPS know that they have only one chance of conviction)


92/194

@CMK 2013 92

A person who has been wrongly convicted has the right to appeal or

review of the case in order to clear his name and reputation.

The second aspect of treating an acquittal or conviction as final is that not

to do so would be to alter one of the most fundamental elements of the

relationship between the citizen and the State.

REMEMBER

In order for a plea of res judicata to succeed on the basis that a one is

being charged with the same crime the charge must be substantially

identical to that in the earlier trial.


93/194

@CMK 2013 93

Where there is a material difference between two indictments the plea

of res judicatacannot be sustained.

A plea of res judicatawill be upheld only where a previous trial against

the accused for has been brought to a conclusion by the delivery of a

verdict, whether of conviction or acquittal. . Where the proceedings are

deserted pro loco et tempore prior to the return of a verdict, no plea of

res judicatawill lie.

In order to found a plea of res judicata, the original proceedings must

have been competent.


94/194

@CMK 2013 94

A plea of res judicata will be successful where the accused has

previously stood trial, which has been brought to a formal conclusion, for

the "same offence."

In considering a plea of res judicata, the court will look to the substance

of the complaint against the accused and not merely to its form.

The acquittal of the accused on a substantive charge will not bar his later

prosecution for perjury in relation to sworn evidence given by him at his trial.

A person who has been tried and acquitted, or tried and convicted, on a chargeof assault may subsequently be tried on a charge of murder or culpable

homicide if, after the first trial, the victim dies. In such a case death is a new

element and creates a new crime.


95/194

@CMK 2013 95


96/194

@CMK 2013 96

Chapter 3

CRIMINAL PROCEDURE

The process of criminal procedure begins with then investigation and

arrest of the suspect and culminates in the acquittal or sentencing of the

defendant.

How Criminal Cases Are Initiated:

Criminal cases are initiated by a complaint being lodged. A complaint can

be lodged with the police. The complaints can also be lodged with

magistrates.


97/194

@CMK 2013 97

When a complaint is lodged at the police station it is recorded in the

Occurrence Book (OB). The OB records who the complainant is and what

the complaint is.

The decision to file a case depends on the information in the OB, the

police will take a statement from the complainant. The police then have

to carry out further investigation, which includes collection of evidence

such as witness statements as well as exhibits.

Once the police decide what kind of offence has been committed, they

draw a charge sheet.


98/194

@CMK 2013 98

The police can then proceed and make an arrest of the suspect. The

provisions are such that in most cases the police can arrest a suspect

without a warrant of arrest.

Under Section 21 (1)of CPC In making an arrest the police officer or other

person making it shall actually touch or confine the body of the person to

be arrested, unless there be a submission to custody by word or action.

Under Section 21(2) if a suspect resists arrest, the police officer may use

all means necessary to effect the arrest.

Arrest Defined


99/194

@CMK 2013 99

The Criminal Procedure Code (Cap. 75 of the Laws of Kenya)

(hereinafter the CPC) does not define arrest.

The Law Dictionary defines ARREST as follows:

- It is to derive a person of his liberty by legal authority

- Seizure of an alleged or suspected offended or to answer for a

crime

-

Placing of a person in custody or under restraint, usually for thepurpose of compelling obedience to the law.


100/194

@CMK 2013 100

Arrest can, therefore, be defined as the restraint imposed on a

persons personal liberty pursuant to a written law or to orders of a

competent authority for the purposes preventing the commission of, orcharging that person with, an offence.

Case Law Position

Case law suggests that the operative word in arrest is restraint of civil

liberty.

an arrest:

(i) occurs when a police officer states in certain terms that he is

making an arrest; or


101/194

@CMK 2013 101

(ii) occurs when an officer uses force to restrain the individual

concerned; or

(iii)occurs when by words or conduct the officer makes it clear that hewill use force if necessary to restrain the individual from going

where he wants to go; but

(iv)does not occur where he stops an individual to make inquiries.20

How the law controls the power of arrest

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


102/194

@CMK 2013 102

The Constitution

The constitution provides that any person arrested and detained should

be informed promptly; in a language he fully understands the reasons for

his arrest. (Article 49)

The CPC

If a person forcibly resists the attempt to arrest him, or attempts to evade

the arrest, the police officer or other person may use all means necessary

to effect the arrest but no use is allowed of greater force than was


103/194

@CMK 2013 103

reasonable in the particular circumstance in which it was employed or

was necessary for the apprehension of the offender.

Section 24 of CPC provides that the arrested person must not be

subjected to more restraint than necessary to prevent escape.

NOTE

What is reasonable depends on the particulars of the case; there are no

hard and fast rules to govern all inevitable circumstances. However,

where the force used is unreasonable, the police officer is liable to be

charged with offences arising from their attempts to arrest a suspect.

Arrest warrants and search warrants


104/194

@CMK 2013 104

Sections 100 to 117 generally deal with warrants of arrest.

Section 102 provides for a warrant of Arrest. It states that every warrant

of arrest shall be under the hand or a Judge or a Magistrate issuing it.

This means it must be in writing and bear the seal of the court and state

the offence for which it is being issued. It shall also state the name and

who is supposed to implement that warrant of arrest, it can be addressed

to the Officer in charge of a police station.

The warrant must state the offence with which the person against whom

it is issued is charged.


105/194

@CMK 2013 105

The warrant is directed to the Police Officer against the suspect and

the witness. Section 104 says that the warrant may be directed to one or

more police officers within which the court has jurisdiction or generally toall police officers of the area.

In practice the court will issue a warrant and direct it to the Officer

Commanding Station (OCS), it is the OCS who then directs a certain officer

to execute the warrant.

The warrant will stay in force until it is executed. If the warrant is issued

the court will make an order and it shall be mentioned in 14 days time, if

the person is not apprehended the court will keep on mentioning until

the suspect is brought before court.


106/194

@CMK 2013 106

Under Section 107 the officer shall notify the substance thereof to the

suspect to be arrested, it means that when one is to be arrested they

must go to the suspect and tell them they have a warrant and explain forwhat the warrant has been issued.

It is wise counsel to demand that the police show the suspect the warrant

of arrest. There should be no ambush by the process, a suspect must be

well aware of what they are being arrested for.

Once somebody has been arrested, the police officer shall without

unnecessary delay bring the suspect to court without delay. Under the

constitution the suspect must be brought to court within 24 hours.

(Article49 (f))


107/194

@CMK 2013 107

If the police wanted to search a premise they ought to go to court and

obtain a warrant. Otherwise, one can go to court and complain. Further

under the Evidence Act there are provisions that where evidence isunlawfully obtained it cannot be used in court.

Bail

Bail is an agreement between the accused and court that the accused

shall appear when required in court. Sureties are also an agreement that

they guarantee that the accused shall appear in court when required.Article 49 (h) of the constitution guarantees the right to bail unless there

are compelling circumstances.


108/194

@CMK 2013 108

The court is the one that sets the bail terms. Court has discretion to

determine the kind of bail they can award to the suspect. Whenever

security is taken the officer to whom the warrant is directed shall forwardthe bond back to the court.

Section 123 gives power to the police to issue bail at the police station.

Once a suspect is taken to court depending on why the warrant was

issued, a plea will be taken and depending on the kind of charges a

suspect may be released on bond.

Confessions


109/194

@CMK 2013 109

Section 25A of Evidence Act holds that Any confession or admission

of fact shall not be proved unless made in court. Or made by the suspect

at the police station in the presence of a representative and thestatement be taken by an officer above the rank of Assistant Inspector.

Case Files

In criminal matters there are three crucial files

1. Prosecutors file- mostly prepared by the police

2. Advocates file- prepared by the defence counsel

3. Courts file- opened by the court registry


110/194

@CMK 2013 110

Prosecutors file

The police file is made up of sub-files as expounded below.

Subfile A - This has the initial report

The complainant/victim/witness makes a report to the Police station. The

report is recorded in the Occurrence Book (OB) the complaint is assigned

to an officer for investigations.

This first report forms the initial report in the police file

Custody Record


111/194

@CMK 2013 111

If there is an arrest of a suspect (s), the place of arrest , time, date,

condition of suspect and names of officers who conducted arrest are

recorded in the OB. All reports are marked A(1) A(2) sequentially

Sub-file B. - This contains the Sketchplanand the Documentary exhibits

In the process of investigations exhibits are collected. The documentary

exhibits are official and personal documents and include expert evidence.

The documents vary from case to case.

The exhibits are marked (B) 1 (B) 2 sequentially.

Sub-File C - This contains Experts Report


112/194

@CMK 2013 112

Experts reports include, doctors report P3 form, postmortem report,

ballistic report, document examiner, government analyst report and

explosive experts reports. Each report is accompanied by the expertsstatement setting out in simple language contents of a report.

They are marked C (1), C (2) etc.

Sub-file D this has the statements of prosecution witnesses

The Investigation officer will interrogate all persons with information

about the crime being investigated. The proposed witnesses will record

statements at the Police station and they will be housed in this sub file.


113/194

@CMK 2013 113

The witnesss further statement on identification of the suspect will be

in this file. The ID parade officer will also record the statement and attach

the ID parade form (P156) and place it in this sub file.

Sub-File E- this has the Charge and Cautionary Statements Of Accused

Persons as well as Statement Under Inquiry

The Investigation officer will interrogate the suspect on the alleged

offence any statement made will be kept in this sub-file.

The Charge must be drawn in a particular way and if the police bring the

charge they will produce it in form of a standard charge sheet that all

police have.


114/194

@CMK 2013 114

The charge is not standard because every offence that can be charged

is different and there is no template as NO CHARGE is like the other. The

circumstances are different. Particulars are always different. Therequirement for drawing the charge is that one has to be very sure of

what offence has been committed.

When somebody makes a report that an offence has been committed, the

police must look at all the statements from the witnesses and the

complainant. They must then consult the statutes or the penal code to

certify which offence has been committed.

Once the police have determined what offence has been committed then

the rules that will follow is that,


115/194

@CMK 2013 115

every offence that is committed must be charged separately]

Counts constitute every individual offence that have been committed in

a single transaction. Depending on the number of offences that have

been identified one uses e.g. Count 1, Count 2 etc. One should never

have counts that are totally unrelated, there must be a nexus.

The Charge will have a statement of offence which will be the Statement

that will tell you what the offence is e.g. Theft contrary to Section 279(b)

of the Penal Code. One has to be careful not to join charges.

The particulars of the offence essentially deal with the circumstances

under which the offence was committed.


116/194

@CMK 2013 116

Section 214 of the CPC it states that where, at any stage of a trial

before the close of the case for the prosecution, it appears to the court

that the charge is defective, either in substance or in form the court maymake such order for the alteration of the charge, either by way of

amendment of the charge or by the substitution or addition of a new

charge, as the court thinks necessary to meet the circumstances of the

case:

This section is to the effect that if it appears to the court that the charge

should be amended, it can move itself and require the prosecutor toamend the charge. Alternatively the prosecutor can make an application


117/194

@CMK 2013 117

to the court to amend the charge. A new charge is brought with red

under-linings to show that it has been amended.

Substitution means that there is a totally different charge.

If in the course of evidence it emerges that other charges that ought to

have been drafted were not drafted the court can direct that the other

charges be drafted, the police will then go and draft and bring a new

charge sheet. Provided where a charge is so altered the court shall call

upon the accused person to plead to the additional or substituted

charges. The court must take a fresh plea giving the accused to admit or

deny.


118/194

@CMK 2013 118

Where the charges are altered the accused may demand that the

witnesses or any of them may be recalled and give evidence afresh or be

further be cross-examined by the accused or his advocates.

This means that once a charge is altered or amended the accused is at

liberty to require the witnesses who had already given evidence to be

recalled to either given evidence afresh or to be re-examine.

Sub-File F This includes Investigation Diary

The Investigation officer conducting investigations will interview

witnesses and suspects. He will visit the crime scene, hospitals, mortuary,

offices, prisons, courts and residences.


119/194

@CMK 2013 119

The times, dates and places should be clearly indicated and recorded.

The events must be accurate as they occurred.

Sub-File GContains a Copy of Charge Sheets and Related Documents

Upon completion of investigations, the Investigation officer will prepare

the charges in a charge sheet and place in this file.

Sub-File H -Accused Previous Records and List of Exhibits As Well As List

of Witnesses.

The fingerprint form of the accused will be placed in this sub file.


120/194

@CMK 2013 120

The Accused persons record will also be in this file The prisoners

personal effects will be listed in this sub file, documents, watch, wallet

,shoes and money.

Inventory of items recovered from accused or his home or place of arrest

that relate to the case or are deemed to be stolen items will be in this file

so will be the List of the witnesses to testify.

Sub-File I- this containsthe Covering Report

This report is by the Officer in charge of investigations giving the

chronology of events and conduct of investigations culminating to the


121/194

@CMK 2013 121

decision to charge the suspect and arraign him in court with specific

charges.

The Investigation officer in giving the findings will cross reference with

relevant witness statement and exhibit.

Sub-File Jcontains the Minute-Sheet

The sub-file contains correspondence between police personnel with

regard to the case. This includes Correspondence between the

Investigation officer & Officer In charge of the Station, State Counsel in

the DPPs office and Advocates.


122/194

@CMK 2013 122

Defence File

The defence advocates file contains the following:

Instruction note

This is a note of the exact action required of the advocate, advocates

name, name and address of the person giving instructions and retainer.

Client attendance form:

This form indicates name of client, date of attendance, length of timespent attending the client/representative and Purpose (s) of attendance.

Court attendance form:


123/194

@CMK 2013 123

This contains date of attendance, length of attendance, file

reference, name of client, case number and parties, name of advocate in

attendance, counterpart in attendance, name of judicial officer, purposeof the court attendance, instructions for the said attendance, what

transpired in court and further instructions as a consequence of the court

attendance.

Charge sheet:

After taking the plea (not guilty), the advocate will be given a copy of the

charge sheet.

Bail/bond documents:


124/194

@CMK 2013 124

If the offence is bailable, then the advocates file will have the

necessary copies of documents necessary for the admittance of the client

to bail.

NOTE

These are copies because the originals are deposited in court.

Legal Opinion/Brief;

It is also appropriate for the advocate to render a preliminary legalopinion to client on the strengths and weaknesses of the case. This may

be important for out of court settlement.


125/194

@CMK 2013 125

Witness statements and documentary exhibits:

On attending court, after taking plea, the advocate would ordinarily apply

to court for copies of the statements and exhibits to be relied on during

trial.

Court File

The following are court documents found in the in the Court file;

Charge sheet

Remand Warrant


126/194

@CMK 2013 126

Bail/bond documents

Particulars of surety documents

Release order of the Suspect

Court Exhibit list

Court list of witnesses list

High Court orders relating to the case


127/194


128/194

@CMK 2013 128

The trial procedure is conducted in the following stages;

Plea-taking proceedings:

S 207 & 208 Criminal Procedure Code

The Plea taking process contains 4 elements;

- Appearance or arraignment in court by the suspect(s)

-

Formal statement ( Charge sheet)

- The substance of the charges read to the accused persons


129/194

@CMK 2013 129

- Response of the charges by the accused persons are made

Procedure at plea stage

The substance of the charge(s) shall be read to the accused person, by the

court clerk, he shall be asked whether he admits or denies the truth of

the charge.

The plea is read in a language the accused person understands.

Magistrates courts use English or Kiswahili languages. If the accused

person cannot understand either of the 2 languages, an interpreter is

availed by the court. The prosecution will outline the facts surrounding

the offence to the court.


130/194

@CMK 2013 130

If the accused person admits the charge(s) the admission shall be

recorded by the court as nearly as possible in the words used by him

A mention and hearing date, bond or bail terms and the trial court to

hear the matter are given by the plea-taking court.

A guilty plea

If the accused person admits the facts that gave rise to the charge

then the court will convict the accused person on the charges

admitted.

The prosecutor informs the court if the accused person is a first

offender or if he has been convicted before.


131/194

@CMK 2013 131

The accused person will mitigate; inform the court the

circumstances of the case, his background and any other issue the

court should consider before sentencing.

Then the court will pass sentence.

Interlocutory Matters

These are the preliminary objections and applications.

Any preliminary applications and proceedings made after plea taking andbefore the hearing of the case will be recorded in the court file.


132/194

@CMK 2013 132

Hearing Process; Trial Court

The case is called out, the accused person (s) names and case

number by the court clerk.

The court prosecutor states the number of witnesses for the case.

Defense counsels introduce themselves and their names placed on

court record.

Essentials of a Fair Trial

The test of a fair trial is not by establishment of truth or success as seen

by victim from conviction of the suspect, or by suspect due to an


133/194

@CMK 2013 133

acquittal; but by ensuring that the pre-trial and trial stages are

conducted in compliance with the law irrespective of the outcome.

The accused person is entitled to;

Fair trial within reasonable time

An independent and impartial court

be presumed innocent till proved guilty

tried in his presence.

be informed of the charge(s) in language he understands.


134/194

@CMK 2013 134

Be given adequate time, facilities to prepare for defense. The

accused is entitled to copies of witness statements in order to

prepare their defense.

A copy of the judgment

Be tried, convicted and sentenced for an offence written down and

known to law at the time the offense took place

not to be tried twice for the same offence

Public proceedings. Private (in camera) proceedings are only

allowed as per court order or law.


135/194

@CMK 2013 135

Witnesses/Victims rights in trial

- Right to protection of the law

- (Witness Protection Act, 2007)

- This involves protection of the witnesses & victims operation by

the Witness Protection Unit in the A.G.s office to deal with;

- protection of witness,

- escort of witnesses to court,

- assessment of threat level,


136/194

@CMK 2013 136

- coordination with other security agencies

Examination-In-Chief (Direct Examination)

- The prosecutor outlines the evidence to prove their case through

witnesses and production of exhibits.

- The purpose of the examination is to obtain testimony in support

of the version of facts in issue or relevant to the issue for which

party calling the witness contends.


137/194

@CMK 2013 137

Cross Examination

The accused or his representative is then entitled to ask the witness

questions regarding the evidence he/she has given in court.

The purpose of cross-examination is to;

- elicit information concerning facts in issue or relevant to the issue

and is favorable to the party on whose behalf the cross

examination is conducted,

- to cast doubt upon the accuracy of the evidence in chief given

against such party.


138/194

@CMK 2013 138

- present the accused persons line of defense

- test the credibility of the witness

Re-Examination

The court prosecutor may ask the witness questions after cross-

examination.

- The questions if asked are to clarify issues brought out during

cross-examination.

- New matters can only be introduced with leave of the court.


139/194

@CMK 2013 139

When all the prosecution witnesses have testified, the prosecution

will inform the court that it is the close of the prosecution case.

Closing Submissions

The prosecutor and defense counsel or the accused person will make oral

submissions (Closing Statements) to the court on whether a prima facie

case is established by the prosecution or not.

Submissions contain a summary of the evidence on record, the law that is

relevant to the case, the ingredients of the charge(s)and what each party

prays the court to do.


140/194

@CMK 2013 140

- The court will consider the arguments and submissions and

find out if the prosecution has made out aprima faciecase against

the accused to require that the accused be put on his defense.

- If such a case is made out, the court will deliver a ruling that the

matter will proceed to defense hearing.

- If theprima faciecase is not made out, the court will in its ruling,

dismiss the case and discharge the accused person under section

210 of the Criminal Procedure Code (CPC).

- The determination will be in writing and reasons will be given for

the dismissal and discharge.


141/194

@CMK 2013 141

Defence Hearing

- During the defense hearing, the accused person will exercise the

options of giving evidence as prescribed in section 211 CPC.

- The accused person will inform the court the witnesses to be

called to testify on his behalf.

- The witnesses testify using the same procedure as that of

prosecution witnesses.

- The defense counsel will then make final submissions to the court.


142/194

@CMK 2013 142

- If the accused person gives a sworn statement and/or the

witnesses testify on oath, and they are cross-examined, the

prosecution will make final submissions.

- The proceedings close and parties await the judgment of the

court.

Judgment

- After, the close of proceedings, the court gives a judgment date or

judgment on notice.


143/194

@CMK 2013 143

- On the scheduled date, the judgment is read out by the

magistrate to the accused person and in public in a language

he/she understands.

- The court pronounces the conviction or acquittal under section

215 Criminal Procedure Code.

The court in its decision may;

acquit the accused person(s) on some counts and convict on some of

them,

Acquit on the charges in the charge-sheet and convict on a lesser

charge not in the charge sheet but proved by evidence in court


144/194

@CMK 2013 144

Acquit on all counts, the accused person is confirmed innocent

and set free or found guilty on all counts

Convict on all counts in the charge sheet

The courts judgment is read out in open court, in the presence of

the accused persons, lawyers, prosecutors and public.

It is signed and dated by the trial court.

The judgment may contain 2 dates, the day judgment was writtenand the day it is delivered.

Accused Persons Record


145/194

@CMK 2013 145

- If the court convicts the accused person, the prosecution will

read out the accused persons previous record.

- The record includes previous convictions; the nature, date,

sentence imposed and the date of release from prison. The

accused person will comment by admission or refusal.

- The accused person must know what is alleged against him and

has the opportunity to deny it.

- If he refuses, then evidence is called to confirm the same.

- Fingerprints are taken afresh for examination with stored criminal

cases data at the CID headquarters.


146/194

@CMK 2013 146

Mitigation and Victim Impact Statements

- The accused person will mitigate; inform the court any/all issues

the court should take into account during sentencing.

The purpose of mitigation is to enable the accused person show

the court why it ought to impose one form of sentence instead of

another.

The court ought to establish the history, character, antecedents,

circumstances of the offence and all matters relevant before

considering the most appropriate sentence to punishment before

assessing sentence.

Criminal Litigation Process in Kenya

Documents

Transcript of Criminal Litigation Process in Kenya