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COUNCIL OF LEGAL EDUCATION

EXAMINATION FOR ADMISSION


TO THE ROLL OF ADVOCATES
AUGUST, 2005
CRIMINAL PROCEDURE

Instructions
(a) Answer Question ONE (1) and ANY OTHER FOUR (4) questions.
(b) Marks may be lost for illegibility.
(c) Three Hours are allowed.

1. On the 7th August, 2005, while walking along Lang'ata South Road at about 2
p.m. Naomi and Muchiri were accosted by two gentlemen one of whom grabbed
Naomi's handbag while the other grabbed Muchiri's rucksack. They raised an
alarm and fellow students from the Kenya School of Law walking along the same
road gave chase, and managed to apprehend the two. Police from Hardy Police
Station were immediately alerted and the two men rearrested. At the station it
has emerged that one of the gentlemen Majitu was found wearing a wrist watch
which had gone missing a day ago from the Principal's office and which has been
identified as belonging to Matata, the Principal's Secretary.

Both Majitu and Kurutu are awaiting charges.

(a) Advise the police on the charge(s) to prefer


(b) Draft the charge(s)

In the first count I would advice the police to charge Majitu and Kurutu jointly with the
offence of stealing from the person contrary to section 279(a) of the Penal Code in respect of
stealing the handbag and rucksack from Naomi and Muchiri respectively. I would charge
Majitu and Kurutu jointly with another because there was a common intention and the
offence occurred in the same transaction.

In the second count I would advice the police to charge Majitu for handling stolen goods
contrary to section 322(2) of the Penal Code. This is because at the time of the arrest he was
found in actual possession of the wristwatch belonging to Matata, which had gone missing
from the principals office. I cannot charge him with stealing the wristwatch because from the
facts I am not certain that he was the one who stole it. I am only certain that he was found in
actual possession of the wristwatch with the intention of either retaining or disposing it. This
second count will be in the same charge sheet because it is part of a series of offences of a
similar character. (Charge them with stealing since the theft is recent and then charge them
with the alternative charge of handling stolen property).


(b) Draft the charge(s)

THE CHARGE SHEET

Name: Majitu and Kurutu


Count 1:
Statement of Offence

Stealing from the person, contrary to Section 279(a) of the Penal Code

Particulars of Offence

Majitu and Kurutu jointly, on the 7 th day of August 2005, along Langata South Road at about 2.00
p.m, in Nairobi District within the Nairobi Province stole a handbag and rucksack the properties of
Naomi and Muchiri respectively.

Naomi and Muchiri should not be in the same count as they each constitute a separate count. You
have created a duplex count.

Count 2:
Name: Majitu and Kurutu
Statement of Offence

Handling stolen goods contrary to section 322(2) of the Penal Code

Particulars of Offence

Majitu on the 7th August 2005, in Nairobi District within the Nairobi Province, otherwise than in the
course of stealing, dishonestly assisted in the retention of a wrist watch the property of Matata,
knowing or having reason to believe the same to have been stolen.

Doctrine of recent possession indicates that where one is found in possession of anything recently
stolen. Where there is a recent date one would be able to see that it is recent.

In this case there is recent possession, the first assumption is that the person must have stolen, charge
them with stealing and then in the alternative, charge them with handling stolen property.

2. Discuss the sufficiency and availability in practice to an accused person the


constitutional provisions that underpin the right to a fair trial in Kenya:

(i) Right to the protection of the law

This means that a person shall not expect to be punished for an act or omission that did not constitute
a criminal offence at the time they committed it. Moreover, since it has been the constitutional
practice of Parliament to enact who shall be guilty of the offences which it creates, it would be at
variance with the constitution to interpret a statute, in the absence of express words, as giving a
minister or anyone else the power to choose, as a matter of substantive law, a single person to the
exclusion of others as the person to be charged with an offence 1.
1
Ibid.
Section 77 (4) of our Constitution safeguards this right. In addition, section 77 (8) provides that no
person shall be convicted of a criminal offence unless that offence is defined and the penalty therefore
is prescribed, in a written law. The exception to this rule is the offence of contempt.

The most important aspect of the right to protection of the law is that a person is presumed innocent
of any crime with which she is charged until it is proved that she is not. The onus of proving the
persons guilt lies on the accusing party and this onus must be proved beyond a reasonable doubt. 2
That said, there may be occasions during the trial when this onus shifts to the accused as elaborated in
Meme v R3.

The right to the protection of law also involves the right to a fair trial which is enforced by statutory
rights of appeal .4

Section 77 (4) of the Kenyan Constitution contains a similar provision but differs where it adds that no
penalty shall be imposed for a criminal offence that is severer in degree or description than the
maximum penalty that might have been imposed for that offence at the time when it was committed.

(ii) Right to a fair and public hearing

In the determination of his civil rights and obligations or of any criminal charge against him, everyone
is entitled to a fair and public hearing within a reasonable time by an independent and impartial
tribunal established by law.

Judgment shall be pronounced publicly but the press and public may be excluded from all or part of
the trial in the interests of moral, public or national security in a democratic society, where the
interests of juveniles or the protection of the private life of the parties so require, or to the extent
strictly necessary in the opinion of the Court in special circumstances where publicity would prejudice
the interests of justice.

The right to a fair and public hearing is subject to the following conditions:

a. In respect of proceedings upon a request for bail pending an appeal for release on probation
or parole or for a new trial since in such cases the applicant is not an accused , but a convicted
person5;

b. The right to a fair and public hearing does not apply in extradition 6;

c. Nor generally, in disciplinary proceedings 7;

d. Nor does it apply to a request for leave to appeal against a conviction, unless the court to
which the request is made may and does treat the request as the hearing of the appeal itself 8.

Section 77 (10) of our Constitution guarantees this right and in addition section 77 (11) similarly
provides the situations in where this right may be suspended. These situations are:

a. Section 77 (11) (a) provides that where publicity would prejudice the interests of justice or in
interlocutory proceedings or in the interests of public morality, the welfare of persons under
the age of 18 years or the protection of the private lives of persons concerned in the
proceedings; and

2
Halsburys Laws of England, 4th Edition, volume 8, paragraph 838.
3
[2004] 1 EA 124.
4
Halsburys Laws of England, 4th Edition, volume 8, paragraph 838.
5
Ibid paragraph 1675.
6
Ibid paragraph 1675.
7
Ibid paragraph 1675.
8
Ibid paragraph 1675.
b. Section 77 (11) (b) provides that this requirement will be suspended where the court is
required to do so in the interests of defence, public safety or public order.

(iii) Right to a Fair Hearing

What amounts to a fair hearing is a question of fact in each case, however, the following factors are
indicative of a fair hearing:

a. Each party must be given a full opportunity to put his case and to comment upon that of his
opponent on a footing of equality9;

b. Free legal aid in criminal cases is necessary in order to ensure the equality of the parties 10 [not
guaranteed in civil proceedings, see Nurani v Nurani11];

c. There is no necessity for an oral hearing in all cases 12; and

d. The requirement of a fair hearing does not guarantee against a person being charged a second
time with an offence of which he has already been convicted or acquitted 13.

Section 77 (1) of the Kenyan Constitution mirrors this provision. It provides that if a person is charged
with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing
within a reasonable time by an independent and impartial court established by law.

The court in Akhuya v R14 defined what amounts to a fair hearing. The court held that Section 213 and
section 310 of the Constitution use the phrase address the court which in ordinary parlance means
talk or lecture to an audience. Section 77 (2) of the Constitution of Kenya makes it mandatory for an
accused to be present at the hearing of his case, except where he voluntarily consents to stay away or
due to his conduct, continuation in his presence is impracticable. The court also held that submissions
are part of a trial procedure.

The court went on further to add that final submissions in a criminal trial must be made orally in open
court in the presence of the accused. In this case the appellant did not get a fair hearing and a trial
could not be said to be complete unless both parties were granted an opportunity to address the court.

(iv) Hearing within a reasonable time

The term reasonable time requires elaboration. The relevant period is the date from which the
accused is charged to the date of the final decision on appeal 15.

The reasonableness of the time is also measured according to the usual time taken under the
administration of the system of criminal law in question, and in relation to the investigation and trial
of a case in a manner consistent with the good administration of justice. Factors to be taken into
account include:

a. Whether the responsibility for delay lies with the prosecution or with the courts;

9
Ibid paragraph 1676.
10
Ibid paragraph 1676.
11
[1981] KLR 87.
12
Ibid paragraph 1676.
13
Application 1519/62, X v Austria 6 Yearbook HR 346, extracted here from Halsburys Laws of England,
4th Edition, volume 18, paragraph 1676.
14
[2002] 2 EA 323.
Application 1216/61, X v Germany 11 Collection HR 1, extracted here from Halsburys Laws of
15

England, 4th Edition, volume 18, paragraph 1677.


b. The complexity of the issues involved;16

c. The applicant must not have caused the prolongation of his own detention 17.

An indication of what is not a reasonable time was declared in Githunguri v R18 where the court held
that to charge the applicant four years after it was decided by the Attorney General not to prosecute,
and thereafter also by neither of the successors in office, it not being claimed that any fresh evidence
had become available thereafter, it cannot be said that the hearing of the case would be within a
reasonable time as required by section 77 (1) of the Constitution. The delay was so inordinate as to
make the non-action for four years inexcusable.

(v) Independent and impartial tribunal

An independent and impartial tribunal is a tribunal established by law19. This requirement precludes
the establishment of extraordinary courts by executive order but does not prohibit the conferment of
specialized jurisdiction in the ordinary courts20. As a general rule, where there is a possibility of an
appeal, a court must give reasons for its decision21.

This right is safeguarded by section 77 (9) of our Constitution.

In Gachiengo v R22, it was held unconstitutional and contrary to the principle of separation of powers
for the Kenya Anti Corruption Authority to be headed by a High Court Judge. Such leadership, it was
held, compromised the accuseds right to a fair trial before an impartial court under section 77 (1) of
the Constitution.

In contrast, the court in Meme v R23, held that the trial of the applicant in the Magistrates Anti-
Corruption Court is neither intended nor likely to deny him his constitutional and ordinary legal
rights. Evidence would be adduced against him in the ordinary manner, which entails the three stages
of evidence in chief, cross examination and re-examination. He would be able to call his own
witnesses, who will be examined in the same way, he will have access to counsel and the legal burden
of proof which has to be established beyond reasonable doubt would at all times rest on the
prosecution, even though, off course, the evidential burden would keep shifting as is well recognized
in this common law system.

Therefore, on the question of whether the accused was likely to be denied the presumption of
innocence secured by section 77 (2) (a) of the Constitution, the court held that this application was
unfounded as trials at the Anti-Corruption Court are regulated by all the rules of procedure and
evidence, and guided by normal judicial practice as obtains in all the counts forming part of the
judicial system.

On the question of whether the applicant was likely to be denied a fair trial by an independent and
impartial court, and whether the charges against the accused were against the principles of natural
justice, the court held that such an apprehension was unfounded as the trial court would be a regular
court in every respect, guided by the principle of judicial independence, and arriving at its decision on
the basis of proper examination of evidence and the submissions of counsel.

Application 1936/63, Neumeister v Austria 7 Yearbook HR 224, extracted here from Halsburys Laws of
16

England, 4th Edition, volume 18, paragraph 1677.


17
Application 2465/65, X v Germany 24 Collection HR 50; ( Halsburys Laws of England, 4th Edition,
volume 18, paragraph 1678).
18
[1986] KLR 1.
19
Convention for the protection of Human Rights and Fundamental Freedoms (Rome, 4th November 1950),
article 6 paragraph 1.
20
Application 1216/61, X v Germany 11 Collection HR 1; ( Halsburys Laws of England, 4th Edition,
volume 18, paragraph 1678).
21
Application 343/57, Nielsen v Denmark, 4 Yearbook HR 490: ( Halsburys Laws of England, 4th
Edition, volume 18, paragraph 1678).
22
[2000] 1 EA 67.
23
[2004] 1 EA 124.
(vi) Presumption of Innocence

Article 6 (2) of the Convention provides that everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to law. This requirement applies only in criminal
proceedings and not in civil actions24 and from the time of arrest and not only from the time at which a
formal charge or indictment is presented.

Section 77 (2) of the Kenyan Constitution contains the same provision.

There are qualifications to the presumption of innocence. A good illustration is Okero v Republic25,
where it was held that it is a well established qualification to the general principle of the presumption
of innocence that the law may call upon an accused person to prove particular facts, and this is
expressly provided for in the Constitution under section 77 (2) (a).

There has been some controversy over whether the denial of bond amounts to a presumption of guilt.
In Langat v R26, it was held that every person who is charged with a criminal offence is presumed to be
innocent until he is proved or pleads guilty but that does not mean that such person cannot lawfully be
detained in custody for trial if he is charged with a criminal offence. The court held that denying an
accused bond or bail pending his trial in no way means that he has been found to be guilty without
being proved to be so. The Constitution recognizes that a person may be arrested or detained as a
suspect.

(vii) Special rights of the defendant

Special rights refers to the rights which are in addition to the rights of a fair trial and the
presumption of innocence. They are an addition to these other rights and are not meant to prejudice
or constrain them. They include:

a. Right to know the accusation

Article 6 (3) (a) of the Convention provides that everyone charged with a criminal offence has the right
to be informed promptly, in a language which he understands, and in detail, of the nature and cause of
the accusation against him. The detail which is required is such as will enable the person charged to
prepare his defence, and must include the material facts and the legal nature of the charge 27.

Section 77 (2) (c) of the Kenyan Constitution is similar is framed slightly differently. It provides that
an accused shall be informed as soon as is reasonably practicable, in a language that he understands
and in detail, of the nature of the offence with which he is charged.

b. Right to facilities for preparation of defence

This requirement is provided in Article 6 (3) (b) of the Convention which provides that everyone
charged with a criminal offence has the right to have adequate time and facilities for the preparation
of his defence.

Section 77 (2) (d) of the Kenyan Constitution contains the same wording. Section 77 (14) qualifies this
right by providing that nothing contained in subsection (2) (d) shall be construed as entitling a person
to legal representation at public expense.

Application 4523/70, X v Germany, 38 Collection HR 115; ( Halsburys Laws of England, 4th Edition,
24

volume 18, paragraph 1679).


25
[1981] KLR 459.
26
[1986] KLR 608.
27
Application 524/59, Ofner v Austria, 3 Yearbook HR 412 at 462; ( Halsburys Laws of England, 4th
Edition, volume 18, paragraph 1680).
c. Right to defend oneself and to legal aid

Article 6 (3) (c) of the Convention provides that everyone charged with a criminal offence has the right
to defend himself in person through legal assistance of his own choosing. If he has not sufficient
means to pay for legal assistance he has the right to be given it free when the interests of justice so
require.

Our section 77 (2) (e) provides that an accused shall be permitted to defend himself before the court in
person or by a legal representative of his own choice. Section 84 (5) (b) (i) and (ii) empower the High
Court to determine whether a Kenyan citizen requires financial aid to enable her retain counsel for the
purposes of protecting her rights provided for under sections 70-83 of the Constitution.

In Adiedo v R28, the appellant appeared and pleaded not guilty to criminal charges on September 14
1968. On October 15, he appeared unrepresented and the hearing of the case continued for one day
and was then adjourned to October 24. On that day an advocate appeared for the appellant, stated that
he had only been briefed the previous afternoon and applied for adjournment. The magistrate ordered
a one and a half hour adjournment only

This was refused and the appellant then conducted his case himself, cross examined witnesses and
gave evidence on oath. The appellant appealed alleging that the magistrate erred in refusing to grant
an adequate adjournment. It was held that the right of the accused to be represented by the advocate
of his choice had not been infringed.

The court has stated the limits within which this right is to be exercised and made the clear distinction
that this was not a fundamental right in civil proceedings. In Nurani v Nurani29 it was held that a
person is free to have, or not, a legal representative in civil proceedings. He is free to choose. The wife
did not have the fundamental right to be represented by a legal representative of her own choice like a
person charged with a criminal offence under section 77 (1 ) (d).

The court added further that whether the proceedings are of a civil or criminal nature court will not
protect an imaginary deprivation of a fundamental right or, allow it to be capriciously pushed to
absurd lengths like importing a legal representative from Peking or Pakistan.

In Muchoki v R,30 the High Court held that according to section 77 (2) of the Constitution an accused
person has a right to be represented by an Advocate of his choice. In this case, it was held that the
question that the appellate court would consider was whether any prejudice had resulted to the
appellant by the absence of his advocate at the opening of the defence case. If no prejudice resulted,
then the trial courts decision would stand.

In Ruhi v Republic31, it was held that the appellants right to representation under section 77 (d) of the
Constitution of Kenya had been breached and on that ground none of the convictions on four counts
could be supported. The appellants were therefore entitled to an acquittal on all counts on this
ground.

A case in which the court held that prejudice had resulted is Okello v R32. It was held in this case that a
court ought not and must not hurry to conclude a case without due regard to the rights of an accused
or without any due consideration as to what the ends of justice demand. It was an error and a breach
of section 77 of the Constitution of Kenya for the trial Magistrate to order the appellant to conduct his
own defence without first asking him whether or not he was prepared or able to do so.

28
[1969] EA 586.
29
[1981] KLR 87.
30
[1985] KLR 364.
31
[1985] KLR 373.
32
[1986] KLR 219
Since it was not possible to ascertain the extent of prejudice caused to the appellant by the failure of
the court to inform him of his rights or at least to comply with the requirements of natural justice, the
appellants convictions were not safe.

The term legal representative as used in section 77 (2) (d) of the Constitution means an applicants
advocate and not and cannot be extended to cover members of the applicants family as was held in
Kaguma v R33.

d. Rights in respect of witnesses

Article 6 (3) (d) of the Convention provides that everyone charged with a criminal offence has the right
to examine or have examined witnesses against him and to obtain the attendance and examination of
witnesses on his behalf under the same conditions as witnesses against him.

Section 77 (2) (f) of our Constitution is expressed in similar terms, but, however, section 77 (12 )
provides that nothing contained in or done under the authority of any law shall be held to be
inconsistent with or in contravention of subsection (2) (e) to the extent that the law in question
imposes conditions that must be satisfied if witnesses called to testify on behalf of an accused person
are to be paid their expenses out of public funds.

In Njenga v R34, it was held that section 200 (3) of the Criminal Procedure Code entitles an accused
person to demand that any witness be re-summoned and enjoins the trial magistrate to inform the
accused person of that right. Failure to do so is an injustice. The same holding was made in Kariuki v
R35 where, in addition, the court held that the assumption of jurisdiction by the succeeding magistrate
without informing the appellant of this right was wrong and the trial by the succeeding magistrate was
a nullity.

e. Right to an interpreter

This right is guaranteed under Article 6 (3) (e) of the Convention which states that everyone charged
with a criminal offence has the right to the free assistance of an interpreter if he cannot understand or
speak the language used in court and is mirrored in section 77 (2) (f) of our Constitution.

This right has been affirmed in Kiyato v R36 where the Court of Appeal held that it is a fundamental
right under the Constitution of Kenya section 77 (2) (f) that an accused person is entitled without
payment, to the services of an interpreter who can translate the evidence to him and through whom he
can put questions to the witnesses, make his statutory statement or give his evidence.

In addition, the Criminal Procedure Code (Cap 75) section 198 (1) also requires that evidence should
be interpreted to an accused person in a language that he understands.
Other Constitutional Safeguards

There are other provisions that guarantee a right to a fair trial and appeal in our Constitution. They
include:

(i) Section 77 (3) which provides that a person accused of a criminal offence or a person
authorized by him if he so requires and subject to payment of a requisite fee be given within a
reasonable time after judgment a copy for the use of the accused person of any record of the
proceedings made by or on behalf of the court.

However, in Ratilal Shah v R37, it was held that the judgment of the magistrate did not comply with s
169 of the Criminal Procedure Code since there were no clear findings of fact, and except on one point,

33
[2004] 1 EA 68
34
[1984] KLR 605.
35
[1985] KLR 504.
36
[1986] KLR 418.
37
[1958] EA 3
no reasons for the decision. An appellate court cannot look at reasons written by a magistrate after the
conclusion of a trial but the procedure adopted by the 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.

(ii) Section 77 (5) provides that no person who shows that he has been tried by a competent
court for a criminal offence and either convicted or acquitted shall again be tried for that
offence or for any other criminal offence of which he could have been convicted at the trial of
that offence, save upon the order of a superior court in the course of appeal or review
proceedings relating to the conviction or acquittal.

(iii) Section 77 (6) provides that no person shall be tried for a criminal offence if he shows that he
has been pardoned for that offence.

(iv) Section 77 (7) provides that no person who is tried for a criminal offence shall be compelled to
give evidence at the trial.
Approaching the Court

The proper forum in Kenya for seeking redress for violations of any of the provisions of section 77 of
our Constitution is the High Court as provided for in section 84 (1) of the Constitution. Section 60 of
the Constitution confers upon the High Court of Kenya unlimited jurisdiction in civil and criminal
matters. As spelt out in section 84 (2) (b), the High Court may make order, issue such writs and give
such direction as it may consider appropriate for the purpose of enforcing or securing the
enforcement of any of the provisions if sections 70-83 (inclusive). This was also stated in orbiter in
Githunguri v R.38

The High Court shall issue such decision and compel the court from which the complaint arose to
dispose of the case in accordance with the High Courts decision. There is a right of Appeal to the
Court of Appeal if the person aggrieved is not satisfied with the High Court decision as per section 84
(7). Section 84 (6) confers upon the Chief justice the power to make rules with respect to the practice
and procedure of the High Court in relation to the jurisdiction and powers conferred on it by or under
section 84.

3. Critically examine the law and procedure relating to assessors in Kenya.

A. INTRODUCTION
B.
The assessor system was retained after independence. The value of assessors was explained by Lord
Atkin %n Dhalarnini v 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".
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) Is rhe role played by the assessors adequate? (ii)
If noi 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
Should the system be confined to the High Court or should it be extended to the subordinate Courts?
B EVOLUTION OF THE ASSESSOR SYSTEM IN KENYA
The initial stages of the evolution of the assessor sstem can be traced to the 1902 East f~fiican Order-
in-Council, This order provided' biter alia that:
38
[1986] KLR 1.
"In all cases civil and criminal to which natives are parties every court,
ia) shall be guided by the native law so long is it is applicable and is not repugnant to jastice and
morality or inconsistent with any orders in council or ordinances or any regulaaon or rule made under
anv order in council or ordinance;

(b) And shall decide all such cases according to substantial justice without undue regard to
technicalities or procedure and without undue delay".y
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 earliest [European] legislation which
authorized European courts of sessions to constitute two or more respectable assessors was
Regulation VI of 1832, which applied only to of Act VIII of 1832, the system was
Africa.
is with British India'. The functionaries presiding ]n natives to assist them as Bengal. By the
provisions extended to other places/parts of British Colonial
The assessor system was introduced as a substitute for the more vigorous jury system. Following the
failure of the jury system in the colonies of British West Africa, it was found necessary to introduce a
system befitting the Africans (sic). The system had worked in British India and it was meticulously
argued that there was no reason why the system could, not work among the natives of Africa.

"The 1897 Native Courts Regulation section 8 provided for the trial of an accused with the aid of
assessors; the High Court could invite cooperation of native assessors with a consultative voice only
for the purpose of jury information where required respecting native law and custom.
This provision clearly indicates that discretionary. However, in 1907 following the inauguration of the
Courts Ordinance, the following was enacted that;
appointment. to sit and hear a case was purely
"Except where otherwise expressly provided by law any person committed for trial to the High Council
shall be tried by a judge of the High Court sitting with not less than three assessors".
The word `shall' according to the Interpretation of Statutes and General Provisions Act (Cap 2) means
mandatory.
This brief history forms the foundation of the system of assessors as we know it today.

C. THE ASSESSOR SYSTEM AND THE JURY SYSTEM


In the eyes of the law an assessor is the epitome ofthe reasonable man, the `man' in the street. This is
only a restatement of a renowned colonialist EW Park who said of assessors:
.. ;; person usually an expert in the subject matter under consideration who sits with the judge and
assists him from his special knowledge"
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 nornially 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 Zander' quoted Lord Denning regarding the high esteem in which the jury
is held in England:
The Court of Appeal hardly ever interferes with verdict of a jury",
Zander has in fact put it more lucidly that:
"The Jury system is strong because it. has so many different virtues... 'The brief decision `Guilty or
Not Guilty' is also a way of reducing anxiety about the result of cases. It may be right or wrong but it
inspires confidence in a way that a reasoned decision given by a judge cannot.
Over the years the jury has played a significant role in mitigating the harshness of the law and the
system by its own form of equity and mercy".'
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
D. PROCEDURAL ASPECTS OF THE ASSESSOR SYSTEM
The importance of the assessor in the discharge of justice cannot be over_ emphasized. The ends of
justice shall only be conveniently arrived at if the assesso are taken seriously. This is in fact recognized
by the Criminal Procedure Code whose section 262 states that "all trials before the High Court 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 v
Yowasis 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 in fact a restatement in the very words by the East
African Court of Appeal in 1j v Abdaka Mali' 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 Sun] up to them". 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
conternplated by its originators_

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 assessors". 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 custornary 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 fronl tile pennanent
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 assessors
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;
the President and Members of the Cabinet,
the Speaker and Members of the National Assembly,
the Clerk of the National Assembly, and persons appointed to act as official reporters to the National
Assembly,
persons actively discharging the duties of priests or ministers of their respective religions,
(e) physicians, surgeons and apothecaries in active practice,
legal practitioners in active practice,
(~)
(h) members of the police force,
officers of the armed forces,
persons exempted from personal appearance in court under the provisions of the Civil Procedure Act",
persons disabled by mental or bodily infirnvity,
other persons exempted by the Attorney-General from liability to serve as assessors.
Pursuant to section 266(k) above and vide Legal Notice number 345 of 1962, an additional list of
persons exempt from assessor service is as hereunder:
Pennanent Secretaries.
Managing Director, Kenya Railways Corporation
Managing Director, Kenya Posts and Telecommunications
R Officers engaged in the administration of justice including magistrates, officers of the Judicial
Department and of the Office of the Attorney-General, the Principal Probation Officer and Probation
officers.
([') Oflicers of the Prisons Department, the Chief Inspector of Approved Schools and officers on the
staff of approved schools.
Dentists in active practice.
~4)
(h) Mayors, Cha.imran of County Councils, town clerks to County councils.
Consular offices de carriere and consular employees_

'The sulaunoning of assessors is guided by sections 269-?.73 of the Procedure Code.


The law requires that. the R.egistrar of the High Court, at least seven days before the day which rnay
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 session.14 'The judge is to select three out
of those summoned to serve as assessors as required by section ?63 of the Criminal Procedure Code.
'The assessors are to be surnmoned in writing and their attendance required in the summons to be at
a stated place and time.'!'
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 surnmoned to serve again as an assessor for a period of twelve months or for such longer period as
the court deems fit."

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 in 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 shillings"."
Not all persons summoned to serve as assessors qualify to serve. There may be preliminary objections
on the ground that an assessor knew the facts or that he is related to the accused or to the
cornplainant. 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 v R"
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 6e chose to remain mute and took no part
whatsoever in his trial. On appeal he argued that the wife o _f 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 v
R.'" 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 there.?'' 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 accused.2' 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.

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)j, 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 Wilken." 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
shouW 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 rnind the principles of natu~ 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 n>ind, 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 1 think the judge's powers of selection should not be governed or fettered by
considerations of race.
It was thus ordered that the panel comprise two Europeans and one Afi-ican 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 ?97
of the Criminal Procedure Code.
The Remuneration of assessors is dealt with under the Criminal Procedure (Remuneration of
Witnesses and Assessors) Rules enacted through Legal Notice number 474 of 1963. For assessors who
are public officers they may be paid such
reasonable out of pocket expenses as he may have incurred other than those payable from
departmental vote in accordance with the regulations obtaining at the time. For those who are not.
public officers, their reasonable travelling and out of pocket expenses as ordered by the Court will be
paid.
F. AsSESSOR IN COURT
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 lett by the
legislature and in the Gusambizi Wesonga case" 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.
The session should start with three assessors but the absence of one does not necessarily invalidate
the trial. For example in Assah Singh v R-' 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 fornlal
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 nlay sunl up the evidence for the prosecution and for the defence and
whereupon he ,ill require each of the assessors to state his own opinion orally. The word "may" tnakes
it discretionary on the judge to sum up the evidence yet it was in fact well stated in Washington slo
Odindo v R2` 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 (Culinga v R'' 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 jadge but. only if they Fall
understand the facts of the case before them in relation to the relevant law. [f 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"
Further, a positive rnisdirection to the assessors will lead to a. conviction being quashed. This was
settled in Wafula v R.
The statutory provision is that assessors are to give their opinion,, 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 v R"' 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 v R3` held that the
irregularity of a judge in failing to take the opinion of each assessor is not fatal unless it has
occasioned a Eailtrre 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 v R."
Sometimes a discharge of one assessor during hearing on the ground of personal interest may render
the trial a nullity. In Laurenti v R`, the appellant was convicted of murder by the Supreme Court of
Kenya and he appealed against his conviction. During the trial it came to the notice of the court that
one of the assessors had taken part in a search instituted by police for articles which might become
real evidence ~ the trial and was present when a spear shaft and `a panga' were found. The asse
ssot
concerned was thereupon discharged and the trial proceeded with the other two assessors. It was held
that the absence of an assessor or disqualification due to person interest or such other special
circumstances annulled the trial. The trial was a nullity because of 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 v R." 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 v Mungu Atosha." 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:
. we think that there is nothing wrong in principle against the retirement of assessors for consultation.
This is a frequent practice throughout the Eastern African territories in at least thre of which it has
statutory sanction".''
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 slo Ussi
v R." 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 to state his opinion. In Lamabutu Mokalya v R." 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
pec.uliarly within their knowledge and must be given an opportunity to express vie,vs on the case
generally,.'H
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 can1111ao men and should only
hear that which is strictly necessary and should avoid anv 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 Sirtgh Bansel`' is authority that while section 322
mandates the judge to take the opinion of the assessors generally on the case as a whale, 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. When the
assessors give their opinion, it is desirable that they state their reasons." The judge is not bound to
accept their opinions.'- 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 32,2(1) does not mandate assessors to give their opinions in open court. All it does require is
that such opinion be given orally and individually " However, it is submitted that there is much to
commend the practice of giving opinion in open court. In the Privy Council decision of Mahlilzilili
Dhalamini and 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 the
Criminal Procedure Code which requires the practice of the High Court to be assimilated as nearly as
possible to the Courts of Over arid Tenniner and General Gaol Delivery in England that should be the
law in Kenya.
[f 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 person."' 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.`1
After each assessor has stated his opinion, the judge is required to give his judgment; but in so doing,
he is not bound to confornn 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 the judge to state in his judgment his reasons for disagreeing with them."' 'This is all the
more important where the assessors have given reasonable grounds for their opinions.'
He 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 irraply 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." 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 nvore than expert witnesses." In R v Ndarnbere' 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 Mutwiwas'
which holds that since the opinion of an assessor on custom does not bind a judge, there is no need for
cross-examination or evidence in rebuttal.
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? Theretore, we cannot treat our assessors as experts as u7
England and the preit,depcndent Kenya.
I, EVALUATION AND RECOMMENDATIONS
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 v R'- 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
Adamsorl. 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 cases' where the learned judge in this rape case
stated:
"Each of the assessors returned an opinion of not guilty and [ suspect that the opinions are based not
upon evidence they have heard but upon inter-tribal prejudices... I deplore their opinions which are
either a result of stupidity or pervasiveness"
The above entitlements cannot be viewed as utterances of a biased judge. They are part of a given
socio-economic superstructure where one class lives under the control and influence of another class.
This is the type of superstructure that Kenya inherited and it is the same that is jealously sought to be
maintained 'This system insists that the Africans' concepts are medieval and this has led to the content
being slowly assimilated to the regrettable province of neocolonialism. The prejudices expressed
above are not confined to Kenya alone. They occur and recur in other African Countries. A case in
point in Uganda is Mutwalumbi Bukuli v Busoga'' where while commenting on the opinion of the
assessors, the learned judge without fear had this to say:
the reason is not that they did not see the facts; but both assessors are not worthy the n.ume of
assessors as they think in religion than in Justice".
-The contradiction underlying the assessor system is only a reflection of the inherent flaws in the
entire system. Piecemeal refornls may not give the desired effects and an overhaul of the system with
various reforms should be worked out. This > probably be fornru)ated to accommodate some of the
following points.
A CASE FOR REFORM
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) There should be a statutory requirement that the assessors should be men (and women!) of
some formal learning so that they are not. confused and bewildered, by the legal jargon
'T'he legislature should refonn the present legislation so that the role of assessors is clearly redefined
taking into account the Kenyan situation both social, economic, and political as differentiated fi-om
the colonial experience when legislation was adopted. In a nutshell the system should be overhauled
to give it practical relevance and currency.
There is a bill in Parliament which proposes,to amend the Criminal Procedure Code so as to abolish
the sytem of trial with the aid of assessors in the High Court in order to ensure speedy, efficient, cost
effective and fair trial in accordance with the present day conditions in Kenya.

4. Leah, a newly employed magistrate has just finalized her first criminal trial.
Advise her on how to go about writing the judgment.

- At the end of trial the judicial officer shall proceed to write the judgment of the court
- Section 169 of the CPC provides that each and every judgment shall be written by or under the
direction of the presiding officer of the court in the language of the court
- Shall contain the point or points for determination, the decision thereon and the reason for
the decision
- Shall be dated and signed by the presiding officer in open court at the time of pronouncement
- In the case of conviction the judgment shall specify the offence and the section of the law
creating it, which the accused is convicted and the punishment
- In the case of an acquittal, the judgment shall state the offence of which the accused is
acquitted and direct that the accused be set at liberty
- The accused person to be given a copy of the judgment or a translation. Act NO. 5 of 2003
given at a fee
- The first paragraph of the judgment should contain a brief statement of the offence, together
with the brief particulars
- Secondly, the next paragraph should contain a summary of the evidence of the prosecution
it should be in narrative or story form so it should not be a summary of the evidence related
by each and every witness instead their evidence should be embodied in one story with
reference being made where there are differences or contradictions
- Thirdly, the next paragraph should be a summary of the defense case.
- Corroboration - In many criminal cases it is required
- the Rules of evidence must be strictly followed; in terms of writing judgement and in terms of
analyzing and making conclusions
- the issue of the accused persons character may also arise. Evidence of the accused persons
good character is admissible on his behalf. Unless the bad character is brought into issues
only then can it be considered.
- Where the accused is alleged to have told lies does not necessarily prove the correctness of the
facts that are then existing ie doesnt mean what prosecution is saying is true
- Circumstancial evidence; their probative value must be assessed by the court and the court
must take into account and indicate why they are relying on the circumstancial evidence.
Ilanda v R (1960) EA 780. For the evidence to be relied on there must be no other explanation
possible than that the accused is guilty
- Section 168 ; delivery of the judgment
a. in open court either immediately or some time after close of trial and in the latter is where
notice is given to all the parties of the reserved date.
b. the prosecution or defense can make application for whole judgment to be read
c. accused person is required to attend delivery of judgment unless attendance has been
dispensed with during the trial or if there is no provision for imprisonment or where the
accused person is being acquitted.
- no alterations to be made after delivery of judgment; any mistakes can only be rectified by
referring matter for review before the High Court
- R v Gikunja (1948) 23 1 KLR 43; the magistrate added a few notes to the signed judgment
with the explanation that he wished to consider points of law which he felt could not have
been understood the accused. The court of appeal disapproving of this practice held that a
judgment should contain all the reasons which acted on a judges mind that led to him coming
to the final verdict.
- Not until judgment is given that a sentence is then given. Judgment is different from
sentencing process
- A judgment will never contain a sentence.

Benchbook for Magistrates

The Judgement

I. Pronouncement

A. Judgement is to be pronounced either immediately after the termination of the trial or at some
subsequent time. If the Court opts for the latter, it must give notice of the date and time to the parties
and their advocates, if any (S. 168(1) CPC).
B. The judgement should be read in the presence of the accused, save where his or her personal
attendance has been dispensed within during the trial and the sentence is a fine, orwhere the accused
is acquitted. S.168 (3) however, provides that the absence of a party at the delivery of the judgement or
failure to notify him or her of the date of delivery of judgement does not invalidate the judgement.
C. Like the trial, S.77 (10) of the Constitution requires that, except with the agreement of the parties,
the judgement of the Court should be read in public. Similarly, S.168 (1) CPC requires the judgement
to be pronounced or the substance thereof explained "in open Court". If either the prosecution or the
defence so requests the whole judgement should be read out in open Court
D. It must follow that in all cases which the law requires to be heard in private namely, rape,
attempted rape, defilement of girls under fourteen years and incest, even the judgement should be
read in private.

Contents of the Judgement

A. The judgement should include the name of the accused and the charge he or she is facing. The
judgement ought to commence on a separate page from the rest of the proceedings and the pages
should be numbered consecutively.
B. S.169 CPC requires the following of the judgement:
(i), It must be written by or under the direction of the Magistrate
(ii) It must be written in the language of the Court
(iii) It must contain the point or points for determination (iv) It must contain the decision
(v) It must contain the reasons for the decision
(vi) It must be dated and signed by the Magistrate in open Court athe e tmit is pronounced.

C. The judgement should not contain. two dates, namely the date of writing and the date of delivery. It
should contain only the date of delivery being the date from which the right of appeal (if any) starts to
run. Where one Magistrate writes a judgement and it is read by another, the Magistrate who wrote
thejudgement should sign but not date the judgement. The Magistrate who reads the judgement
should date and sign, the same at the time it is pronounced.

D. In Muqema v R-[19@nF_A_676, the judgement was undated and unsigned. At the end of the
judgement, it was indicated that the accused persons were found guilty and convicted, but it did not
show whether they were sentenced. It was not clear whether the judgement was delivered in the
presence of the accused persons and how they w e r e sentenced. On appeal it was held that these
omissions constituted grave irregularities that could not be cured under S. 346 CPC and that the trial
was a nullity.
E. Where the law requires a particular offence to be tried by a Magistrate with a specified jurisdiction,
the Magistrate who reads the judgement should be a Magistrate of the same jurisdiction as the one
who tried the offence and wrote the ,judgement. Hence for example, a capital robbery judgement
ought to be read by a Magistrate with jurisdiction to try that offence.
F. In arriving at its judgement, the Court should analyse and weigh all the prosecution and
defence evidence in its totality. The prosecution and the defence cases should not be looked at in
isolation, but as a whole. Similarly, the Court should not evaluate the case of the prosecution in
isolation
before considering whether or not the case for the defence rebuts or casts doubt on it (Okethi Okale &
Others v R [1965) EA 555, Geoffrey N vku v R 1982-8 81
Joseph Najramba Karura v R (1982-88)11165). _
G. In Nyanamba v R [1983] KLR 601 the trial Magistrate, after outlining the evidence of the
prosecution witnesses stated that he believed their evidence but gave no reason for believing it apart
from saying-that -they had no reason for lying. After considering and deciding on the prosecution
evidence, the Magistrate rejected the defence as false, again without giving any reasons. The
conviction was quashed and the sentence set aside by the Court of Appeal because the judgement did
not comply with S 169(1) CPC which requires every judgement to contain the point or points for
determination, the decision thereon and the reasons for the decision. The Court also held that the
evidence should have been considered as a whole. However in Confiance v R (1960) EA 567 it was held
that failure to set out the point or points for determination and the reasons for the decision are not
alone sufficient grounds for allowing an appeal
H. The judgement should also contain a summary of the evidence adduced both by the prosecution
and the defence. Findings are to be made after considering the entire evidence on record. It is
improper to consider the evidence of the prosecution in isolation from that of the defence or vice
versa. However weak the defence of the accused appears, it must be considered by the Magistrate. .
I. The findings made by the Court must be based upon the evidence adduced and not upon speculation
or theories unproved by evidence (Okethi Okale 8 Others v R [1965] EA 555). In Aluta v R [1985] KLR
543 the Court of Appeal emphasised 'ttrdthr'Crlmtmal'-ifases, conviction can only be based on the
weight of the actual evidence adduced and that it is dangerous and inadvisable for a trial Court to put
forward a theory not canvassed in evidence or in the speeches of counsel
64 Bench Book for Magistrates
.F. In Munyole v R [1985] KLR 662 the Court of Appeal held that in a joint trial involving more
than one accused person, the evidence against each accused must be considered separately and the
case against each accused must be such as to prove the guilt of that particular accused beyond
reasonable doubt. The Court further emphasised that it was a misdirection to deal separately with one
part of the evidence and omit to relate It to the whole.
K. Where the accused is convicted, the judgement should specify the offence and the section of the law
under which the accused is convicted and the punishment to which he is sentenced. (S.169 (2) CPC
and Nyanamba v R (1983] KLR 599). Where the accused is acquitted, the judgement should state the
offence of which he or she is acquitted and should direct that the accused be set at liberty (S. 169(3)
unless otherwise lawfully held. The Attorney General has a right of appeal against acquittal of an
accused person on a matter of law (S. 348A CPC),
L. Failure to comply with the requirements of S.169 CPC is an irregularity. It entitles the
appellate Court to examine the facts of the case with a view to determining whether the irregularity
has occasioned a failure of justice. Once the appellate Court finds the irregularity to have occasioned a
failure of justice, the decision will be reversed or altered (5.362 CPC).Where from the record the
appellate Court - cannot determine the appeal on merit, or cannot tell whether the trial Court
properly directed itself on the evidence, the appellate Court will order a re-Mal.
M. In Diego v R (19851 KLR 621, the High Court decried unsavoury and derogatory language
in the judgement. It held that sarcastic and denigratory remarks in relation to the defence case or
defence witnesses (or in that case the prosecution and prosecution witnesses) have no place in a
judgement and that a dispassionate approach and dear findings of fact are more indicative ofjudicial
approach and do not lay the Magistrate open to a charge of possible bias.
N. Upon convicting the accused person the Court must inform e accused person of his right of appeal.
Under S. 349 CPC the appeal must ordinarily be entered within 14 days of the date of the order or
sentence appealed against
O. Under S 170 CPC the accused is entitled without delay, to a copy of the judgement or If he so
desires where practicable, a translation thereof in his own language. As amended by the Criminal Law
(Amendment) Act No 5 of 2003, the accused is no longer entitled to the judgement free of charge. S
392 CPC also entities a person affected by a judgement or order passed by the Court, on application
and payment, to a copy of the judgement, order, deposition or other part of the record, unless for
special reasons the Court decides to give them free of charge.

Lumumba

C. FORM AND CONTENT

In most legal aspects, the form in which the particular issue is presented is given l 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 m~ ~o include the requirements stated therein. These are that the judgment
must cpptain the point or points for detennination, the decision thereon and the reasons FW that
dision Wi t h t hi s d
ec uly done the preidiff iid .,sng oicers requre to sign itin
_ ~,,
court at the time of pronouncing it. If the judgment is one of conviction, it,thll specify the offence of
which, and the section, of the Penal Code or other law under which the accused is sentenced."

Section 169(3) provides for acquittal cases in which case the judgment shig ktte the offence of which
the accused is acquitted and shall direct that he be set at f mierty, The accused person is allowed to ask
for a copy of the judgment and may futthtr'ash 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. Th'C'Poittt or points for
deterrnination must cover the essential ingredients of the offence charged.

Failure to comply with these requirements is an irregularity which Will ePtitle 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 S~Gdn
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 tr1court must also direct itself on the nature
of the evidence adduced. In the ease f 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 u the alleged victim
of the ot~ence (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 section 124 of the Evicence Act) amendment."

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 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 stand.

ORDERS ON JUDGMENT
E. once judgs'lent 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.judgrnent is of fundarnental significance. Failure to comply with the rules for w-riting
a judgment may be fatal to the ,judgment. In the case of Rutilal Shah v Republic," 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 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 1(,9 relating to contents
ofjudgment underscore the significance of this stage of trial.
5. Hassan, your client has just been informed that he will be facing a criminal
charge and he wishes to plead not guilty; explain to him in a precise manner the
process that he will undergo up to sentencing.

CRIMINAL PROCEEDINGS
Criminal proceedings may take place either in the District Magis-`trate's Court, the Resident
Magistrate's Court (including the Principal Magistrate's Court and the Chief Magistrate's Court) or the
High Court. The law which governs the procedure before these courts is contained in the Criminal
Procedure Code (Cap. 75) and the Magistrates' Courts Act (Cap.10). The crimes tried by these courts
are mainly found in the Penal Code (Cap. 63), although many other offences are contained in other
public Acts.
It is proposed to deal first with the procedured followed in the trial of a felony in the Resident
Magistrate's Court. A police officer, or a private person, submits to the magistrate a written statement,
known as a "complaint" or an "information," which gives particulars of the offence which the person
named therein is said to have committed.
A police officer can submit an information in the form of a for, mal charge. The name and address of
the accused person will be given, a statement of the offence(s) and particulars of the offence(s).
Now that the charge has been framed, the next step is to bring the accused person before the court.
This can be effected in two ways, p, magistrate can issue an order in the form of a summons
requiring the person named in the summons to appear before the court at a fixed time and date and
answer to the charge. The summons, which will contain the statement of offence(s) and particulars of
the offence(s), will be served on the accused by a police officer.
The other method of bringing an accused person before the court is for the magistrate to issue a
warrant of arrest. The warrant is issued to a senior police officer, usually in the district where the
accused resides, and commands him to arrest the person named in the warrant and bring him before
the court. The warrant contains particulars of the offence with which the accused is charged.
Police officers have many statutory and common law powers to arrest a person without a warrant. The
only requirement here is that a police officer arresting a person without a warrant should inform the
person of the grounds of his arrest, unless the grounds of arrest are obvious to the accused. In
arresting a person, a police officer can use such force as is reasonably necessary to effect the arrest; it
is an offence to resist lawful arrest.
If the accused person disobeys a summons, then a magistrate can issue a warrant for his arrest.
When a person is in police custody, he can, at the discretion of the court, be released on bail, pending
the trial of his case. The right to bail is found in the Constitution of Kenya, section 72(5) which
provides that, "If any person arrested or charged ............ is not
tried within a reasonable time ............ he shall be released either
unconditionally or upon reasonable conditions............" Yet, section 123(3) of the Criminal Procedure
Code (Cap. 75) was amended in 1984 so as to bar the High Court from granting bail to a person
accused of murder, treason, robbery with violence or attempted robbery with violence. In Ngui v.
Republic (Criminal Application No. 59 of 1985), the High Court, in a constitutional reference under
section 84(1) of the Constitution, held that the amendment to section 123(3) of the Criminal
Procedure Code was inconsistent with section 72(S) of the Constitution and was, therefore, void. Yet,
the High Court said that foJlowing the practice in Kenya, and aubject to section 72(S) of the
Constitution, as a general rule bail should not be granted ln cases carrying the death penalty. Section
123(3) of the Criminal Procedure Code was subsequently amended by the Statute Law (Miscellaneous
354 The Law of Kenya
Procedure
355
Amendments) Act (No. 19 of 1985) so that the High Court may grant bail in any case whether or not
an accused person has been committed for trial. The matter was resolved by an amendment to section
72(5) of the Constitution (Constitution of Kenya (Amendment) Act (No. 2 of 1987)) which made all
offences punishable by death nonbailable.

If the accused is granted bail, he may have to execute a bond with sufficient sureties for his attendance
in court at the time of the trial. If he does not attend court on the due date, he and his sureties may be
required to forfeit to the court the sums specified in the bond. Sometimes the police may object to bail.
Much depends on the seriousness of the charge, whether the accused is likely to abscond or interfere
with prosecution witnesses or even commit further offences whilst on bail. The magistrate, after
hearing the prosecution's objections and any counter objections, will then give his decision. If bail is
refused, the accused can appeal to a High Court judge; in fact, he can apply for bail to every puisne
judge of the High Court. Where the accused has been convicted and sentenced to a term of imprison-
ment, for bail pending appeal to be granted, there must be an overwhelming possibility of success of
the appeal, so that there is no justification for depriving the applicant of his liberty (Somo v. Republic
(1972) E.A. 476). (See also Opondo v. Republic (1978) Kenya LR 25).

If bail is refused, the accused is remanded in custody. The more serious and complicated a charge, the
more likely it is that the accused will be remanded in custody. In fact, several remands may take place
at frequent intervals before the prosecution are ready to proceed with a case.

Whilst in prison awaiting trial, the accused will be accommodated in a special part of the prison
reserved for such persons. The accused has his constitutional right to employ (instruct) an advocate to
defend him. The accused can call witnesses in his own defence and his advocate can compel the
attendance of such witnesses by means of a witness summons.

The scene now moves to the Resident Magistrate's Court. The accused makes his appearance. The
magistrate first of all identifies the accused as the person named in the charge sheet. The magistrate
then reads out the charge2 to the accused, which will be explained to him if he is not represented by
an advocate. The accused is then asked whether he pleads guilty or not guilty. In Adan v. The Republic
(1973) E.A. 445, the Court of Appeal of East Africa considered the procedure which should be followed
on a plea of guilty. It laid down the following guidelines:

(a) the charge and all the essential ingredients of the offence should be explained to the accused
in his language or in a language he understands;

(b) the accused's own words should be recorded and if they are an admission, a plea of guilty
should be recorded;

(c) the prosecution should then immediately state the facts and the accused should be given an
opportunity to dispute or explain the facts or to add any relevant facts;

(d) if the accused does not agree to the facts or raises any question of his guilt his reply must be
recorded and change of plea entered. (e) if there is no change of plea, a conviction should be recorded
and a statement of facts relevant to sentence together with the accused's reply should be recorded.
In Greyson Kimbio v. The Republic (1976) Kenya LR 132, the appellant was charged with defilement .
He pleaded Nakubali which was recorded as "I admit the offence", but this was not unequivoval plea
of guilty. There was also doubt as to the exact age of the victim. The conviction and sentence were set
aside and the High Court ordered a new trial. (See also Lusiti v. The Republic (1977) Kenya LR 143).
If the accused pleads guilty, his advocate, or the accused, if not represented, can make a plea in
mitigation of sentence. The magistrate will then ask the prosecution if the accused has any previous
convictions, after which the magistrate will sentence the accused.

If the accused pleads not guilty, the trial of the case will begin. The proceedings will be conducted in
either English or Swahili, although the services of an interpreter can be called upon if necessary. The
prosecution can be undertaken by a State Counsel, employed in ihe Office of the Attorney-General, or
by a police officer who is appointed and gazetted to conduct such prosecutions. The procedure now is
very similar to that conducted in a civil case. Prosecuting counsel should make an opening address to
the court in which he outlines the facts of the case, only referring to those facts which he intends to
prove by evidence. The prosecution then calls its witnesses who are examined-in-chief, cross-
examined and possibly re-examined; any exhibits are identified and referred to in evidence. Stolen
goods must be identified by their owner.
At the close of the prosecution's case and after hearing submissions by the prosecution and defence, if
the court is satisfied that no case
356 The Law of Kenya
Procedure 357
has been made out against the accused, the court will dismiss the case and acquit the accused. Counsel
for the defence can, of course, submit that the accused has no case to answer and this will require a
ruling by the magistrate. Where a submission of "no case" is rejected, the court should say no more
than that. Conversely, where the submission is upheld, reasons should be given for that is an end to
the case (Festo Wandera Mukando v. The Republic (1980) Kenya LR 103). If the court is satisfied that
the accused has a case to answer, the magistrate will again explain the substance of the charge to the
accused and the right of the accused to give sworn evidence (which will expose him to cross-
examination by the prosecution) or to make an unsworn statement' from the dock, on which he cannot
be cross-examined, or the right to remain silent. He will also be asked if he has any witnesses to call in
his defence. If the accused does not adduce evidence in his defence, the prosection will sum up the
case against the accused. Then, defence counsel, or the accused (if unrepresented) will be called upon
to address the court. Even if the accused gives sworn evidence, or makes an unsworn statement, he
still retains the right to make the final address to the court. However, if the accused is going to call
witnesses in his defence, then after the close of the prosecution case, defence counsel should make an
opening address to the court in which he outlines the defence. He will proceed to call his witnesses
and they will be examined in the same manner as the prosecution witnesses. After the close of the case
for the defence, counsel for the defence will make a closing address to the court in which he will
summarise his case and no doubt deal with any weak points in the prosecution case. The final address
will be made by counsel for the prosecution who will summarise his case and deal with any weak
points in the defence. The magistrate, who during the course of the trial has been recording the
evidence in longhand, then summarises the whole case and finally arrives at his decision. If, on the
evidence he finds the accused not guilty, the accused will be discharged. If the accused is found guilty,
he will be sentenced. Sentence of the court can always be adjourned, either to enable the magistrate to
consider the most appropriate sentence, or because he requires a medical report.
The more serious criminal cases like murder, treason and misprison of treason are tried in the High
Court. The procedure for trying a criminal offence in the High Court is very similar to that in the
Resident Magistrate's Court. Prior to the 10th December, 1982, before a case was heard in the High
Court, there would be a preliminary
inquiry in a subordinate court in which prosecution witnesses would record their evidence in a
document known as a deposition. If the presiding magistrate considered that the prosecution had
made out a prima facie case (that is, sufficient proof), he would commit the accused to stand trial in
the High Court. These preliminary inquiries were abolished by the Criminal Procedure (Amendment)
Act (No.13 of 1982) and replaced by a new system of committal proceedings which are designed to
streamline the previous system. Committal documents are prepared by the prosecution. These
documents contain (i) the information containing the charge, (ii) a list of prosecution witnesses and
their statements, (iii) a list of exhibits, (iv) an alibi warning. Not less than fourteen days before the
date fixed for the committal proceedings, the prosecution gives one set of these documents to the
accused or his advocate and three sets to the court. The magistrate reads the committal documents
before the commencement of the committal proceedings. Oral evidence cannot be given at committal
proceedings and no person can address the court without leave. If at the hearing, the magistrate
considers that there are insufficient grounds for committing the accused for trial, the magistrate
discharges him. Conversely, if the magistrate considers that there are sufficient grounds for
committing the accused person for trial before the High Court, he informs the accused and frames the
charge, which may well be identical with the information. The magistrate then addresses the accused
in the following words:
"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 question them. You will then be allowed to
make a statement or give evidence on oath and call your wtinesses. If you wish, you may say
something now, either on oath or not on oath. If you say something 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 may say will be written down and may be used at your trial".
The statement or evidence of the accused person is recorded in full and shown or read over to him,
and he may add to, alter or explain anything so recorded. The magistrate certifies that the statement
or evidence of the accused person was made in his presence and hearing and that the record is correct.
The magistrate then invites the accused person to sign the record, but if he refuses to sign, a note of
the refusal is made and the record may be used as if the accused
358 The Law of Kenya
Procedure
359
person had signed it. After the committal for trial, the magistrate records the names and addresses of
the witnesses whom the accused wishes to have summoned at the trial. The magistrate will then give
the accused an alibi warning. An alibi is the plea that when an alleged act took place one was
elsewhere. The exact wording of the warning is set out in the Criminal Procedure Code (section 235).
The gist of it is that the accused is required to give advance warning of any alibi defence, otherwise he
may be prevented from raising this defence at his trial. The advance warning gives the police time to
check out the alibi.
Where an accused person has been committed for trial, the committing court sends the committal
documents and the information containing the charge to the Registrar of the High Court.
In criminal cases in the High Court, a judge will sit with three assessors. The assessors are laymen, not
lawyers, and they are selected at random from members of the public between the ages of twentyone
and sixty. The judge will, at the conclusion of the trial, ask the assessors for their opinion on the facts
and for a general verdict, but the judge is not bound to accept the assessors' opinion 4 It might be
added that if an assossor is discharged by order of the court, the proper course to follow is to start the
trial afresh with the aid of three new assessors (Njuguna Mbeu v. Republic (Criminal Appeal No. 21 of
1980).

Most prosecutions are instigated by the State and although a private individual can institute a
prosecution (subject to the qualifications noted in Kahara's case (supra)), all prosecutions in Kenya
are under the control of the Attorney-General 5. Under section 82 of the Criminal Procedure Code, the
Attorney-General is empowered to enter a writ of nolle prosequl. This is directed at the court and
commands the discontinuance of criminal proceedings. The result is that the accused is immediately
discharged and released from custody; but this does not prevent any further criminal proceedings
arising from the same facts.

It should also be observed that certain prosecutions can only be brought with the consent of the
Attorney-General, e.g. prosecutions for corruption (Prevention of Corruption Act (Cap.65), section
12); sedition (Penal Code (Cap.63), section 58); election offences (Election Offences Act (Cap.66),
section 6); incest (Penal Code, section 169); libel of a dead person (Penal Code, section 195);
subversive activities (Penal Code, section 77). If such a prosecution proceeds without the
consent of the Attorney-General, then the lack of consent or even the delay in obtaining the consent
can be the ground for a successful appeal should the accused be convicted (Kinyua v. Republic (1972)
E.A. 54).

6. Critically analyze the adequacy of imprisonment as a sentence.

Refer to Feb 2006 paper

7. What factors and/or principles govern sentencing policies in Kenya?

The cause of crime there are various socio economic factors that may lead to crime i.e. poverty,
drunkenness, avarice, greed, anger, lust opportunity, habit insanity ignorance. Unemployment,
broken home, psychological problems etc; whereas it is not always possible to tell why a crime is
committed where motive can be established it ought to be taken into consideration.

The magnitude of the crime the level of seriousness and gravity of other offence must be taken into
account including the impact on the victim and society generally

Prevalence and type of crime what is the frequency or rarity of the type of crime, is it comparatively
more prevalent in one area, is there a sudden spare in the type of crime

Aggravating or extenuating circumstances these are circumstances that are peculiar to the offence
e.g. opportunity provocation.

Accused circumstances, character, attitude etc these are issues which would ordinarily arise during
mitigation.

Previous conviction this will be raised by prosecution,- the court should consider whether they are
similar as well as their relevance in any case, they should the court a good indication of the offenders
previous interaction with the criminal justice system.

In most cases the courts tend to be more lenient to first offenders.

The court will also consider uniformity in approach to sentencing. This is in order to avoid disparities
by the same court as well as in comparison to other courts in sentencing offence of similar nature etc.

This should be supported by a clear sentencing policy that is known to judicial offices.
Such a policy will generally enhance the credibility of courts, offenders will know what to expect and
in a sense it should therefore act as a deterrent factor when offenders can with some amount of
certainty predict the kind of sentences that their offences are likely to attract.

8. Explain the various ways in which an accused can respond to a charge.

On appearance before court, a judicial officer must ensure that the charge is properly drawn
It must be in regard to an offence that is known to law
It must not be duplex
Section 77(2) (b) of the constitution makes ..

All the proceedings must then be recorded


The court records must reflect the Coram which include the judicial officer by name, the
Prosecutor by name,

Section 198(4) of the CPC provides that the language of the High Court shall be English whereas
that of subordinate courts shall be English or Kiswahili.

Adan v Republic Plea should as far as possible be recorded in the language of the accused.
Summary proceeding of what is required in the course of a plea.

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

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. In the event that an accused does not change plea, a plea of guilty
should then be entered and conviction recorded and after mitigation and facts relevant to
sentence are taken the sentence can be meted out.

Plea of guilty this kind of plea must be unequivocal and hence the elaborate requirements laid
down in the case law where the plea is not properly taken and recorded the accused may be set
free despite the plea of guilty.

Not guilty the recording of in nearly exact words of the accused need not be as scrupulous as in
the case of a plea of guilty but must be recorded nonetheless. Section 278 of the CPC provides that
where one pleads not guilty they are deemed to have put themselves up for trial.

Say nothing i.e. refuse to plead, assuming that the court accused understands the proceedings a
plea of not guilty should be entered.

May plead lack of jurisdiction by the court.

Demurrer - meaning that the charge is open to some legal objection, e.g. facts may be true but do
not amount to an offence May plead lack of jurisdiction.

Autrefois acquit/convict Section 279 of the CPC makes provision that:

(1) An accused person against whom an information is filed may plead:-


(a) that he has been previously convicted or acquitted of the same offence; or
(b) that he has obtained the Presidents pardon for his offence.
(2) If either of those pleas are pleaded and denied to be true, the court shall try whether the plea
is true or not.
(3) If the court holds that the facts alleged by the accused do not prove the plea, or if it finds that
it is false, the accused shall be required to plead to the information.

In cases where it would have been proper to prefer the charge complained of with the previous
charge an accused can plead that they had previously been tried and convicted or acquitted of the
same offence (see Section 77(5) of the Constitution)
Further under the same Section 279 they may plead that they have obtained Presidential pardon
for the offence in question (see Section 77(6)

It is cardinal principle of constitutional and criminal law that a person must not suffer double
jeopardy for the same offence.

The test is not whether the facts relied on are the same at the two trials but whether an acquittal
or conviction on previous trial would have led to a similar conclusion in the subsequent trial R v
Duadji (1948) 15EACA 89.

Conditional discharge does not bar similar charges, discharges such as those under Section 87, or
where prosecution enters a nolle prosequi.

An absolute discharge amounts to a bar to preference of similar charges

Section 162 deals with Insanity

Where the court has reason to believe that due to unsoundness of mind the accused is rendered
incapable of understanding the proceedings/making his defence, the court shall order for a
medical examination. If the medical examination confirms unsoundness of mind the proceedings
shall be postponed.

Where offence is bailable the accused maybe released on bail on sufficient security that he will be
properly taken care of and shall not injure ..

He may be ordered to appear before the court or other officer appointed by the court. If he is not
capable of raising bail he shall be remanded in custody or in a mental hospital. Problems do arise
since there are a lot of accused people who are not serious mentally ill as those already there and
the congestion of mental hospital arises being caused by persons who should be in custody, they
can be remanded in custody if there are facilities that can take care of their mental health. The
case shall be reviewed from time to time as provided under Section 164.