COUNCIL OF LEGAL EDUCATION

EXAMINATION FOR ADMISSION

TO THE ROLL OF ADVOCATES

ATP 101: CRIMINAL LITIGATION

TUESDAY 13TH NOVEMBER, 2012

DURATION: 3 HOURS

Instructions to Candidates

(a) Answer question ONE and any other three (3) questions
(b) All questions carry 15 marks each.
(c) Marks shall be lost for illegibility

PLEASE TURN OVER

1. The following was recorded as court proceedings that took place on 12th October 2012 before the
Honorable Mr. Justice Byron Kasaine at the High Court of Kenya in Marsabit.

“Coram

The Honorable Justice Byron Kasaine presiding

Accused person present (Ms Shupavu Noma)
Principal State Counsel, Prosecuting (Ms Lelei Rama)
Defence Counsel, present (Mr. Bonny Andanje)
Court Clerk (Mr. Ndere Namwakira)

Court Clerk

Ms Shupavu Noma, I want to read out to you the information. What language do you
understand?

Ms Shupavu Noma

I am a Ugandan by birth; speak Luganda, excellent English and Lunyakole. Since I got married
to a Kenyan in the year 2000, my Swahili has greatly improved.

Court Clerk

Ms Shupavu Noma, you are charged with the offence of treason contrary to Section 40 of the
Penal Code (Cap.63 of the Laws of Kenya). Particulars of the offence are that on 29 th December
2007 in Kirinyaga County, Central Province of the Republic of Kenya you together with other
persons not before court invented and or intended the maiming and restraint of his Excellency
the President of the Republic of Kenya with the sole aim of deposing his excellency from his
position as President and Head of State and Commander-in-Chief of the Kenya Defence Forces.

Ms Shupavu Noma

Yes. It happened.

Court

Accused person convicted on her own plea of guilt. Prosecution may outline the facts.

Prosecution:-

Your honor, on 29th December, 2007 following the intensely contested and disputed presidential
elections in the Republic of Kenya, the Director of the National Intelligence Service (NIS) received
intelligence that the accused person with the help of several Libyans were holed up in a hotel in
Kirinyaga County called Kiamutugi Hotel. The intelligence brief was to the effect that the
accused was planning to levy war in Kenya against the Republic. The Libyans, who are believed
to have been around 20, are known mercenaries who fought in the Ugandan Liberation War of
1986 and have previously engaged in combat in the Central African Republic and the Democratic

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 Republic of Congo. A raid conducted by Kenya’s Special Forces on the said hotel on 29 th
December, 2007 managed to recover a document titled “Change of Guard.” In the “Change of
Guard”, the accused person had laid out an elaborate plan on how an amphibious assault force of
1,000 men would land at the Port of Mombasa as another group of ‘airmen’ numbering 800
would land at the Jomo Kenyatta International Airport at the crack of dawn on 10th January, 2008
with the aim of capturing State House, the official residence of the President of Kenya.

Your honor, the “Change of Guard” is produced as an exhibit before this court and marked as
Prosecution Exhibit Number 1.

After the raid on the hotel by the Special Forces, all the occupants of the East Wing of the said
hotel escaped arrest and are believed to have escaped to the lawless Somalia. However on 5th
October, 2012 the Kenya Defence Forces (KDF) captured Kisimayu, a port city in Somalia. While
pacifying the said city, the accused person was found hiding in a bunker that previously served
as the command and control centre of the Al Shabaab militia. She was arrested and handed over
to the Military Police at Afmadow who later flew her to Kenya to answer to those charges.

Accused Person:

Yes I was arrested in Kisimayu by the KDF. I was part of the Mujahedeen fighting infidels.

Court

Plea of guilty entered. I have looked at Section 40 (3) of the Penal Code (Cap.63 of the Laws of
Kenya). I have no choice but to sentence you to death by firing squad. Since the death penalty is
mandatory, it is not necessary to invite you or your counsel to mitigate. It is so ordered.

Right of appeal within 14 days from today’s date.

12th October, 2012”

Signed.

Ms Shupavu Noma has instructed you to prepare the necessary instrument of appeal for filing to
the court with the requisite appellate jurisdiction. Proceed.
(15 marks)

2. Madam Rebecca Mbuthia loves attending parties, going to discotheques and attending weddings.
Her friends generally refer to her as “a party animal’. On 6 th October, 2011 Ms Mbuthia decided
to explore what she described as the ‘ends of the world.’ She drove to Kisii town, from Nairobi, in
the company of her boyfriend called Mr. Yallow Kiche. They arrived in Kisii town at about
6.00p.m. and checked into a hotel called The Storm. After taking some rest, Ms Mbuthia and Mr.
Kiche left their hotel room at about 8.30p.m. and headed to a discotheque called Havanna, at the
heart of Kisii town. After about one hour, Ms Mbuthia claimed that the music at Havanna was
boring and that their alcohol was not as ‘sweet’. She prevailed upon Mr. Kiche to agree to
relocate to another discotheque within town called ‘Dallas’.

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 On arriving at ‘Dallas’ discotheque Mr. Kiche submitted to security inspection by way of metal
detectors. Mr. Kiche was inspected by Mr. Nyang’au, the male security guard on duty. On the
other end of the building Ms Mbuthia adamantly refused to submit to security inspection by Ms
Grace Momanyi, the female security guard on duty. During the altercation Ms Mbuthia pinched
Ms Momanyi’s nose while remarking that Ms. Momanyi ‘should know people’. Ms Mbuthia’s
father the Honorable Steve Biko Mbuthia is the Minister for Internal Security. Hon. Mbuthia has
ensured that his daughter is provided with a gun for what he describes as ‘self-protection’. Ms
Mbuthia whipped out of her handbag a Beretta pistol and used the pistol’s butt to hit Ms
Momanyi on the forehead. Ms Momanyi bled and was taken to hospital where she was treated
and discharged.

On 7th October, 2011 she made a report to Kisii Central Police Station regarding the incident. In
the meantime, as soon as a crowd started milling around Ms Momanyi after the gun incident, she
fled to her room at the Storm Hotel on a motorcycle. The motorcycle rider, who dropped Ms
Mbuthia at the Storm Hotel, is Ms Momanyi’s ex-boyfriend one James Msafiri. After dropping
Ms Mbuthia, Mr. Msafiri rode to the hospital where Ms Momanyi was under treatment and later
escorted her to the police station to make a report. Ms Momanyi’s report was booked in as
OB.No.4/7/10/2011.

The Officer Commanding Station (OCS) – Kisii Central Police Station Mr. Kutima Mutegi
instructed Corporal Macktone Tugee to arrest the culprit immediately. Mr. Msafiri, in the
company of Corporal Tugee went to the Storm Hotel and arrested Ms Mbuthia. Her gun was
confiscated. Mr. Kiche immediately called the Hon. Mbuthia and gave him a brief of what had
happened. Hon. Mbuthia called the OCS and instructed him to not only return the firearm to Ms
Mbuthia but to give her armed escort out of Kisii town. Mr. Mutegi obeyed Hon. Mbuthia’s
instructions. Upon release from police custody at about 10 p.m. Ms Mbuthia and Mr. Keche
drove back to Nairobi.

Ms Momanyi has made several trips to the police station seeking police action, in vain. On 12 th
January, 2012 she wrote a letter to the Kisii Resident Principal State Counsel in the office of the
Director of Public Prosecutions (DPP). She followed up with a reminder on 18 th May, 2012. The
office of the DPP has not responded to her request. Ms Momanyi has called on you in your
chambers to draft necessary documents to set in motion the criminal justice system. Proceed.
(15 marks)

3. The following statement was recorded from Ms Sandra Yonga at a police station in Dandora
Phase 1 Nairobi County.

“I am Ms Sandra Yonga a business woman dealing in an assortment of merchandise. I mostly ply

my trade along Tom Mboya Street in Nairobi. To be precise, I am a hawker, although I call
myself a business woman to give myself some stature. I remember very well the events of 20 th
September, 2012. I belong to a Women’s welfare Group (popularly known as chama). We had a
meeting in the house of one of our senior most members and founder Ms Winnie Thuku at Landi
Mawe Estate in Nairobi. The Chama meeting ended at about 7.30p.m. Since I had taken my
motor vehicle (Toyota Prado) to Toyota Kenya for service, I decided to board a taxi to town. The
taxi that I boarded plies the South B Estate to Nairobi Central Business District route. The taxi
had around eight passengers on board. On reaching Nyayo Stadium, the man seated right
behind the driver whipped out a pistol and commandeered the taxi to Mukuru Kwa Njenga

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 slums. On reaching the slum the man’s accomplices inside the taxi - I think they were two -
systematically went through each passenger’s personal effects taking money and mobile
telephones. I lost to the three men Kshs.3,000/= which I had been given at the chama. They also
took away my iphone 3. It was bought by my husband Mr. Yonga on our first wedding
anniversary last year.

The man who was seated behind the driver was tall, slender and had a scar on his right cheek.
The other two men were of a dark complexion, potbellied and spoke English with a British
accent. The robbers abandoned us in the slum. The other passengers and I walked to Industrial
Area Police Station where we reported the incident.

On 28th September, 2012, I was called to Industrial Area Police Station to attend an identification
parade. I attended three different parades. I positively identified the man who whipped out a
pistol and two of his assistants. I later recorded this statement at the Industrial Area Police
Station. That is all I wish to state.”

Signed.

a) Draft seven questions that you would pose to the witness while conducting examination
in chief.
(7 marks)
b) Draft three questions that you would pose to the witness while conducting cross-
examination.
(3 marks)
c) While leading Ms Yonga in her examination-in-chief, what issues would you highlight to
confirm that the identification parade process in unimpeachable.
(5 marks)

4. Mr. Mvuta Toza and his wife Hasusa run a hardware business at Dagoretti Market near Kikuyu.
On 08/08/2012 they closed their business at 7.45.p.m and drove in their Toyota Hillux pick-up
REg. No.XYZ 333 to their residence at Waithaka, getting there at 8.00.p.m. Mr. Toza was driving.

When Mr. & Mrs. Toza reached their gate but before entering the compound, a car suddenly
pulled up. Three men emerged from it, surrounded the pick-up and pointed pistols at Mr. &
Mrs. Toza, threatening to shoot them dead if they dared raise any alarm. The three gangsters
demanded from Mr. & Mrs. Toza mobile phones and ATM cards. Mr. & Mrs. Toza duly
surrendered their mobile phones but said ATM cards were in the house. The gangsters started
escorting Mr. & Mrs. Toza to their house but before leaving the gate the gangsters threw some
keys to a man in the car and ordered him to drive off. It later transpired that the man was a
carjack victim.

Inside the house, the gangsters took away Mr. Toza’s ATM card, a TV set valued at Kshs.30,000/=
and a refrigerator valued at Kshs.40,000/= and loaded them onto the pick-up valued at
Kshs.1,000,000/=. They (gangsters) gagged Hasusa, locked her up in the house, forced Mr. Toza
into the pick-up and drove away with him to Kikuyu where they withdrew Kshs.7,000/= from his
bank account using his ATM card. The gangsters then bound Mr. Toza’s hands and feet and tied
him up in the luggage space of the pick-up and drove towards Karen via Dagoretti Market. It

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 was the gangsters’ intention eventually to dump Mr. Toza somewhere after Dagoretti Market but
before reaching Karen Trading Centre.

As the three-man gang approached Dagoretti Market, it was intercepted by a rival four-man gang
armed with AK-47 rifles and there was a shoot-out between the two gangs. One member of the
three-man gang Mr. Sina Bahati was shot dead during the shoot-out while the remaining two
members sustained broken legs. Mr. Toza only sustained bruises to his body. The four-man
gang then took over Mr. Toza’s pick-up with its cargo, abandoned the dead man and his two
colleagues who were by then unconscious plus Mr. Toza who was still bound up but otherwise
conscious and drove off towards Karen.

Mr. Toza then took advantage of the death of one member of the three-man gang and the
unconsciousness of the remaining two members of the gang and shouted for help. Some people
in the neighbourhood came to Mr. Toza’s rescue. They lent him a mobile phone and he reported
both incidents to the police. Following the report, Inspector Fanya Fujo Uone and Senior
Seargent Njugu Karanga intercepted the four-man gang near Karen at about 10.00p.m. the same
evening and arrested the four gangsters. The surviving members of the three-man gang are
Messrs Jambazi Sugu and Chaleoleo Mdaku, while the members of the four-man gang are Messrs
Mtaka cha Mvunguni, Maskini Halali, Jicho Pevu and Sitaki Goigoi.

Mr. & Mrs. Toza subsequently positively identified Jambazi Sugu and Chaleoleo Mdaku; while
Mr. Mvuta Toza, Inspector Fanya Fujo Uone and Njugu Karanga positively identified Mtaka cha
Mvunguni, Maskini Halali, Jicho Pevu and Sitaki Goigoi.

a) What offence(s) is/are disclosed in the above narrative?

(3 marks)
b) Draft the requisite charge(s).
(12 marks)

5. Hon. Jungu Kuu is the Member of Parliament for Shika Lako Constitutency of Mbalamwezi
County in the Republic of Kenya.

On 21/09/2012, during heated campaigns for the parliamentary by-elections for Shika Lako
Constituency, he made certain remarks which did not go down well with some of his political
rivals. It was alleged against him that he made remarks to the effect that the indigenous locals
had been discriminated against and oppressed for ages during successive regimes of immigrant
communities and that time had come for such practices to stop.

A non-governmental organization (NGO) apparently representing the “maligned” immigrant

communities formally took exception to the remarks, deeming them to pose a threat to the
concerned communities, such as to constitute hate speech within the meaning of Section 13 of the
National Cohesion and Integration Act No.12 of 2008 (extract of the section attached for ready
reference). The NGO began to agitate for Hon. Jungu Kuu’s prosecution under that law,
maintaining that his remarks were intended to stir up ethnic hatred and that having regard to all
the circumstances, ethnic hatred was likely to be stirred up. Consequently, on 28/09/2012 Hon.
Jungu Kuu was arraigned before Sitaki Mchezo Chief Magistrate’s court in Mbalamwezi County
for hate speech.

Page 6 of 10
 Hon. Jungu Kuu’s initial rejoinder was that in making the impugned remarks he was airing his
views on historical injustices and wrongs suffered by his people, which it was his constitutional
right to point out, so that such wrongs may be righted.

Subsequently, however, it appears that efforts were made at conciliation of the parties, which is
permissible under the Constitution generally and under Sections 49, 51, and 52 of the National
Cohesion and Integration Act (Extract of the three sections attached for ready reference) and
Hon. Jungu Kuu tendered a public apology for the remarks. The apology was publicly
acknowledged and accepted by the complaining NGO which said the parties had reached a
conciliatory agreement and it (NGO) was now urging the Director of Public Prosecutions (DPP)
to terminate the criminal proceedings against Hon. Jungu Kuu after a meeting held between the
parties with a view to an out of court settlement.

You are an assistant Director of Public Prosecutions in the DPP’s office and have been asked to
write a legal opinion on whether or not it is within the DPP’s legal powers to terminate the
criminal proceedings against Hon. Jungu Kuu and, if so, how and whether it is proper to do so.

a) What would be your advice to the DPP as to the legality and propriety of terminating the
criminal proceedings against Hon. Jungu Kuu?
(5 marks)
b) What options are available to the DPP for terminating the criminal proceedings? Which
option would you recommend that he takes and why?
(4 marks)
c) Draw up the requisite legal instrument for termination of the criminal proceedings
against Hon. Jungu Kuu.
(6 marks)

6. John Mugu and his wife Eliza stand charged before the High Court at Kaa Chonjo with
murdering Ruth Wairimu, contrary to Section 203 as read with Section 204 of the Penal Code,
(Cap.63). The particulars of the offence allege that on the night of 6 th/7th October 2012, (1) John
Mugu and (2) Eliza Mugu at Matatizo Village in Tiririka County within the Republic of Kenya
murdered Ruth Wairimu.

The evidence on record may be summarized as follows:-

PW.1 Scholastica Mumbi, testified that she is the granddaughter of the deceased Ruth Wairimu
who was aged about 95 years at the time of her death and that accused 1 is her son. That about a
month prior to the deceased’s death, her entire family agreed on a scheme to take care of her in
monthly turns or shifts. That both accused initially did not want to play any role in the proposed
scheme but were pressured to join the scheme and they reluctantly agreed to participate in it.
That she (Mumbi) was the first to take the deceased to her home, about 5 kilometres from the
accused persons’ home and began to take care of her under the scheme. That Mumbi’s shift
expired on 04/10/2012 and on 05/10/2012 she took the deceased to the accused persons’ home at
Matatizo village, handed her over to both accused and returned home. That a part from being
frail, the deceased was in comparatively good health for her age when Mumbi handed her over to
the accused persons.

Page 7 of 10
That on 07/10/2012 Mumbi went to the accused persons’ home at about 9.00a.m. for a casual
check on the deceased’s condition but found her missing. That both accused said the deceased
had been admitted in Sina Chuki Government Hospital, some 10 kilometres away. That Mumbi
proceeded to the hospital but she was told there was no record of such patient there. That
Mumbi then returned to the accused persons’ home to question them regarding the deceased’s
disappearance, and found both accused covering with dry grass a recently dug ground in their
shamba, some 20 metres from their house. That both accused said they were planting potatoes
but could not explain why they were doing it on that one spot. That when Mumbi insisted on
knowing the truth about the deceased’s fate, accused 2 told her to ask accused 1. That when
Mumbi asked accused 1, he replied in the presence of accused 2 that the deceased had said that
since she had become a burden to the family, the accused persons should feel free to bury her and
even never bother to tell anybody about it; that the deceased had died the previous night; and
that the accused persons buried her the same night.

Mumbi further testified that she was not only horrified about what the accused persons had done
but she was also not convinced that they were telling the whole truth. Accordingly, Mumbi
straight away went to report her discovery to the area Chief Sitaki Matata who accompanied her
to Kalahari Police Station nearby and reported the matter, whereupon the Police took it over and
launched investigations into the deceased’s disappearance.

PW.2 Chief Sitaki Matata of Changamoto location within which Matatizo village falls testified
and corroborated the evidence given by PW1 regarding the report she made to him and how the
two of them had gone to report the matter to the police.

PW.3 Simon Jua Kali testified to being a neighbor of the accused persons. That he was present
when the deceased was brought to the accused persons’ home on 05/10/2012 and that a part from
looking frail, the deceased seemed to be in in reasonably good health. That PW.3 visited the
deceased next in the afternoon of 06/10/2012 and she said she was fine. That PW.3 visited the
accused persons’ home again at about 8.00a.m. on 07/10/2012 and found the deceased missing.
That both accused said the deceased had been admitted in Sina Chuki Hospital. That the accused
persons looked restless when they gave PW.3 that report but since he was busy he did not pursue
the matter.

PW.4 Chief Inspector Jicho Pevu of Kalahari Police Station testified that after the deceased’s
disappearance was reported to the police, he conducted investigations into the matter. That in
the course of the investigations he, inter alia, recorded statements under inquiry from both
accused on 10/10/2012. That after he administered the usual caution to them, each accused
elected to say nothing. That the investigations included arranging for exhumation of the
deceased’s body for post-mortem examination, which was conducted by Dr. Msema Kweli,
Government Pathologist. That later he (PW.4) handed the accused persons over to
superintendent Joackim Nyamachoma for charge and caution statements.

PW.5 Dr. Msema Kweli testified that he is the Government Pathologist. That on 09/10/2012,
following a court order, he supervised exhumation of the deceased’s body from the accused
persons’ shamba, about 20 metres from their house. That from that exercise he noted that the
grave was shallow and its length shorter than the deceased’s stretched body by about 10
centimetres. That thereafter he conducted a post-mortem examination of the body which
revealed that the deceased had sustained broken legs before her death. That there were

Page 8 of 10
indications that the deceased had put up a struggle inside the grave as the soil around her body
looked disturbed; that the deceased inhaled and swallowed loose soil matching that which
surrounded her body which choked her airways; and that in his (PW.5’s) opinion the immediate
cause of death was suffocation.

PW.6 Superintendent of Police Joackim Nyamachoma testified that on 10/10/2012 PW.4 handed
over to him both accused persons for charge and caution satements. That he (PW.6) charged both
accused for murdering the deceased. That after he (PW.6) administered the usual caution to
them, each accused confessed deliberately killing the deceased on the night of 6th/7th October,
2012 and burying her remains secretly in their shamba at a spot about 10 metres from their house
the same night. The court record shows that at the trial both accused retracted their confessions
but that both confessions were admitted in evidence after trial-within-a trial.

Assume you are the trial judge before whom the evidence summarized above was tendered.
Write your judgement.
(15 marks)

……………………………….

Page 9 of 10
ANNEXTURE

Section 13 of the National Cohesion and Integration Act No.12 of 2008

Hate Speech

(1) A person who-

(a) Uses threatening, abusive or insulting words or behavior, or displays any written material;
(b) Publishes or distributes written material;
(c) Publishes or directs the performance the performance of a play;
(d) Distributes, shows or plays, a recording of visual images; or
(e) Provides, produces or directs a programme,

which is threatening, abusive or insulting or involves the use of threatening, abusive or insulting words
or behavior commits an offence if such person intends thereby to stir up ethnic hatred, or having regard
to all the circumstances, ethnic hatred is likely to be stirred up.

(2) Any person who commits an offence under this section shall be liable to a fine not exceeding one
million shillings or to imprisonment for a term not exceeding three years or to both.
(3) In this section, “ethnic hatred” means hatred against a group of persons defined by reference to
colour, race, nationality (including citizenship) or ethnic or national origins.

Section 49 of the National Cohesion and Integration Act No.12 of 2008

Commission to refer complaints for conciliation

(1) If the Commission considers it reasonably possible that a complaint may be conciliated
successfully, the Commission shall refer the complaint to the Secretary.
(2) Subsection (1) does not apply to a complaint-

(a) that the Commission has declined to entertain under section 45 or dismissed under section
47;
(b) that the Minister has referred to the Commission under section 48; or
(c) if an application to the Commission by a respondent under section 46 is pending.

Section 51 of the National Cohesion and Integration Act No.12 of 2008

Conciliation by Commission

The Commission shall make all reasonable endeavours to conciliate a complaint referred to it under
section 49 and may, by written notice, require any person to-

(a) attend before the Commission for the purpose of discussing the subject matter of the complaint;
or
(b) produce any documents specified in the notice.

Section 52 of the National Cohesion and Integration Act No.12 of 2008

Conciliation agreements

If, following conciliation, the parties to the complaint reach agreement with respect to the subject matter
of the complaint, the Secretary shall record the agreement and the parties shall be bound to comply with
such agreement as if it were an order of the commission.
 KENYA SCHOOL OF LAW

EXAMINATION FOR ADMISSION TO

THE ROLL OF ADVOCATES

CRIMINAL LITIGATION - ATP 101

22 ND JULY, 2014

DURATION: 3 HOURS

(a) Answer Question ONE and ANY OTHER THREE Questions

(b) All questions carry fifteen (15) marks each
(c) Marks may be lost for illegibility

PLEASE TURN OVER

Page 1 of 7
 4

Mr. Alutaalia Aurelio is a very successful businessman. He buys and sells charcoal in Kajiado
Counts' and wields tremendous influence and power over the Count y Government and the police
within the County. He belongs to a category of persons ordinarily referred to as untouchables.

Mr. Aurelio is a registered licensed gun holder who regularly enjoys hunting on his expansive
ranch known as The Spree. The Spree has hundreds of thousands of wildlife. Regularly, people
from villages neighboring The Spree trespass on it with the intention of poaching some of the
animals on the ranch.

On 201h May, 2013 at about 1.530 hours, while Mr. Aurelio was hunting, he ran into and arrested Ms
Lucy Akhaabi, who had two dead squirrels in her hands. Inside her basket was found a trap and
a knife that had blood. Mr. Aurelio was very upset. He confiscated the two dead squirrels and the
basket. Mr. Aurelio ordered his employee, one Machozi ya Simba, to lock up Ms Akhaabi in the
pigsty as Mr. Aurelio contemplated available options. At about 1900 hours, Mr. Aurelio and
Machozi ya Simba beat up Ms Akhaabi 'to teach her a lesson and serve as an example to like intentioned
persons.' The heating was so intense that Ms Akhaabi fainted.

She regained her senses three hours later and found herself under a tree by the roadside. A
passerby placed her, while in pain, on a donkey drawn cart and took her to Mowlem District
Hospital. Upon examination, she was diagnosed to have sustained a lower left rib fracture and
soft tissue injuries to the left hand and leg. The injuries were believed to have been inflicted by a
blunt object. She was put on medication at the hospital's High [Dependency Unit.

On 18" June, 2013, she was discharged from hospital. On 19 1I June, 2013 Ms Akhaahi made a report
to Rungali Police station in Kanjiando County. Her complaint was allocated Occurrence Book
Number 75/19/06/2013. She was given a P3 form which was duly filled b y the Government Medical
Doctor. Diagnosis recorded by the Doctor was described as aggravated assault. An X-Ray showed
that indeed she had a rib fracture.
Since making the report, Ms Akhaabi has made numerous follow up visits to the police station and
held meetings with the Officer Commanding Station, Chief Inspector Wambui Maingi, and the
investigating Officer Constable Collins Mchokozi but no action has been taken. The last such
meeting was held on 19 11, June, 2014. Shortly before the last meeting with the police, Ms Akhaahi S
had made three reports, on 311, March, 2014, 121h April 2014 and 281 April, 2014 to the office of the
Director of Public Prosecutions. On the said occasions, she met Principal State Counsel Mutheu
Mutwii who told her that prosecuting Aurelio was a 'politically explosive and expensive
misadventure'. Ms Mutwii suggested to Ms Akhaabi that the matter should he settled 'amicably'.

Ms Akhaabi is intent on commencing criminal proceedings against Mr. Aurelio and Mr. Machozi
ya Simba. She approaches the firm of Triple I' Advocates for necessary action. You are the partner
in charge of the Criminal Litigation Department in the said firm of advocates. Draft documents
necessary for commencement of a private prosecution.
(15 Marks)

Page 2 of 7
2. Ms. Carousal Patapotea is known and described as 'Party Activist' and member number one of
Upendo political party. Her business card describes her as the Founder Member and Part y Leader
of Upendo Party. On 41 March, 2013, Ms Patapotea ran for Kisirani Ward's Member of County
Assembly seat which she lost to lion. Posh Njari. Hon. Njari ran on the ticket of Mabahi party.
Since her victory, lion. Njari has been 'co-operating' with the party in power. it is believed that
the Counts' Commander of the Police Service in her Mavaku County tends to listen to her quite
favourably with the hopes that she would secure him a promotion within the Police Service.

Ms Njari's close relationship with the Police County Commander appears to have made her believe
that she is beyond reach of the law. At social gatherings and political rallies, she calls herself
'Sirkal', which term is understood in street parlance to mean Government. On 28111 June, 2013, Ms
Njari, while on an inspection tour of development projects in her ward ran into Ms Patapotea along
Neymar Street. Ms Patapotea demanded for dialogue within the Ward by all stakeholders to agree
on prioritization of development projects. An argument erupted after which Ms Njari slapped Ms
Patapotea, causing the latter to bleed profusely.

Ms Patapotea was rushed to the nearby Ma yaku Teaching and Referral Hospital for treatment. I ler
situation was described by the duty doctor (Dr. Esther Roy) as unstable. She was moved to the
Intensive Care Unit of the said hospital. She slid into a coma. She has been in a coma since then.
However, on 14 I1l July, 2014, her condition deteriorated drastically leading to her death. A
postmortem report done revealed that the deceased's death was occasioned by internal bleeding
in the brain that resulted from a blunt object. The blunt object was described as possibly a slap or
such other object.

While Ms Patapotea was in a coma, Hon. Njari kept herself bus y on the political trail meeting
voters. The County Commander did not take any step to bring Hon. Njari to account for the slap.
Several pleas to him to cause Ms Njari to record a statement and prepare a comprehensive
investigation file have yielded no fruits. You are the Mayaku County head of the Directorate of
Public Prosecutions. This matter has caught the attention of the Director of Public Prosecutions
(DPP). The DPP has called you and instructed that you personally take charge of preparation of
the prosecution file. The elder son of the late Ms Patapotea Mr. Vladimir Mandevundevu calls on
you, on hearing the news about the DPP's intervention in the matter. He requires a write up from
you as to what an ideal file for the disclosed offence would contain to mount a successful
prosecution.

a) Describe with specific details what you must have in each of the sub files
(8 Marks)
b) Prepare the relevant document that will constitute your sub file C.
(7 Marks)

3. Mr. Sigei Wamhua is a resident of Rongaiville Village in the County of Kiamhu. Mr. Wambua is a
prominent Wrestler in the Rongaiville Circuit. Indeed he is the reigning champion. On 28' June,
2014 Mr. Wambua went to Honeycombs Bar to watch a World Cup match between Brazil and
Chile. Accompanying him to watch the said match was a Mr. Obadiah Raha a renown fan of the
Brazilian team and an adept gambler.

Page 3 of 7
 Before the match started, Mr. Wambua and Mr. Raha placed a bet on the outcome. If Brazil were
to win the match, Mr. Wamhua was to pay Mr. Raha Kshs.200,000. On the other hand if Chile were
to win, Mr. Raha was to pay Mr. Wamhua Kshs.500,000. The match between the two teams was
deadlocked at 1 goal each during regular time and no goal was scored by either team during extra
time. During the ensuing penalt y shootout, Brazil emerged victorious over Chile with a score line
of 3 goals to 2 goals.

As soon as the match ended, Mr. Raha demanded Kshs. 200,000 from Mr. Wamhua as agreed. Mr.
Wamhua was extremely upset b y the outcome of the match prompting him to hurl a bottle of beer
at Honeycomb's onl y television set. On impact, the television set broke into two pieces.
Honey combs General Manager Ms Carol Tumusiirne has since lodged a complaint with the police
regarding the incident. Mr. Wamhua has been arrested and is due to take plea tomorrow, He has
engaged you as his defense counsel. He wants to decide on whether to go to full trial or not.

He instructs you to give him an opinion in case he pleads not guilty, the procedure to he followed
by the court from the point when the prosecution case is closed to sentencing. He does not intend
S
to call any witness, other than himself.

(15 Marks)
4. a) Outline the doctrine of recent possession and the presumption arising under it.
(3 Marks)

h) On 2611, May, 2014 at about 7.00 p.m. Mr. Kalameni Karakana was walking alone from South B
Estate to his house in south C Estate, Nairobi. As he entered South C Estate at around 7.30 p.m. he
was viciously attacked with metal bars by a gang of five masked men, each armed with a metal
bar, who forcibly took from him his Omega wrist watch valued at Kshs.100,000. In the course of
the attack, Karakana sustained head injuries and two broken ribs on his left hand side. Police in a
patrol car found Karakana lying unconscious in a ditch at about 7.45 p.m. and rushed him to
Kenyatta National Hospital, Nairobi where he was admitted for treatment. The Doctor who
examined him classified his bodily injuries as grievous harm. Karakana regained consciousness at
about 11.00 P.M. the same night where after he told the hospital staff and the Police that since his
attackers were masked and the scene of the attack was semi-dark, he was unable to identif y the
5
attackers.

The police commenced investigations immediatel y . On the following da y at about noon, acting on
information, the police visited the house of one Smoking Wakinyonga, a man whose name recurred
in the police 'wanted' lists. The police found Wakinyonga in his house at Kawangware, Nairobi.
They made a thorough search of Wakinyonga's house and recovered an Omega wrist watch under
the mattress on \'Vakinyonga's bed. Later that day, i.e. 2711 Ma y , 2014, Karakana identified the
Omega wrist watch as the one which had been forcibly taken from him by his attackers the previous
evening - the watch bore the engraving 'K. Karakana' at the back. Wakinvonga had no satisfactory
explanation for the presence of the watch in his house on 27th May, 2014.

(i) What offence (s) may Smokin Wakinyonga he charged with?

(2 Marks)

Page 4 of 7
 (ii) Draft the charge (s)
(10 Marks)
5. Mr. Suleiman Miachake and his wife Saida are the proprietors of a successful butchery business
under the name Maskini Halali at Sura Mbaya Market in Maji Mazuri Count y within the Republic
of Kenya. The business has been the envy of many over the last two or so years.

On Friday 161h May, 2014 at about 6.00 a.m. some three men visited the Miachake residence also
within Sura Mhaya Market area, introduced themselves as policemen and that they had gone there
to arrest Mr. Mlachake in connection with his alleged involvement in drug trafficking. Despite
protests from Mr. Mlachake and his wife, the three men hurriedl y took Mr. Miachake away,
claiming that they were taking him to CID headquarters for interrogation. It took an hour before
Mrs. Miachake could follow the three men and Mr. Miachake to CII) headquarters but upon getting
to CID headquarters she was told that her husband was not there. Further enquiries by Mrs.
Mlachake led to information by anon ymous sources that her husband's arrest and disappearance
was the work of his business rivals who had connections with some senior officers in the police
service and that the rivals had vowed to teach Mr. Mlachake a lesson he would not forget for a
longtime. Mrs. Miachake looked for her husband in virtuall y all police stations in Maji Mazuri
County for the whole of that Frida y, the weekend and Monday without success.

On Tuesday 20 11 May, 2014 Mrs. Saida Miachake instructed Wakili Shupavu & Co Advocates of
Nairobi to seek judicial intervention to find the whereabouts and condition of her husband and
secure his liberty. You are a partner in Wakili Shupavu and Company Advocates and have been
instructed to seek the judicial remedy of Habeas Corpus for Mr. Suleiman Mlachake. Draft all the
necessary documents.

(15 Marks)
6. a) Outline the procedure for taking pleas generally and iii particular for taking and recording pleas
of guilty.
(5 Marks)
c) The following is the record of proceedings before the Chief Magistrate's Court sitting at Kaa Chonjo
in Mazingaombwe County within the Republic of Kenya on 14 11 Max', 2014.

Republic of Kenya
In the chief magistrate's court at Kaa Chonjo criminal case no. 44 of 2014

Republic......................................................................prosecutor
Versus

Simba Mkali...................................................................Accused

14.4.2014

Coram

Juma Msemakweli - Chief Magistrate

Page 5 of 7
Onesmus Kiini Macho - Assistant Director of Public
Prosecutions/Prosecutor
Simba Mkali - Accused (unrepresented)
1-lamisi Miawatu - Court Clerk

Court
The charge against you (accused) is that of injuring an animal, contrary
to Section 338 of the Penal Code, Cap 63.
The particulars of offence are that on 121h April, 2014 at Kaa Chonjo
Village in Mazingaombwe County within the Republic of Kenya, you
speared and wounded the only dairy cow of Mrs. Christina
Mwendapekee.

Why did you do that?

Accused
(mutters something in some language not understood by the
court).

Court (to court Clerk)

What is the accused saying?

Clerk
Your Honour, I do not understand the language the accused is speaking.

Prosecutor

May be I can be of some help. The accused seems to be speaking in Ki-

L.angulo, which I vaguely understand. The A-Langulo are forest
dwellers who mainly live on wild berries and honey gathered from the
forest. The accused says he was walking along a footpath when a cow
which was grazing about 5 metres away from the footpath suddenly
charged at him with its sharp-pointed horns. He raised and pointed his
spear in the direction of the cow with a view to scaring it away but the
cow continued charging at both the spear and him and it got wounded
by the spear in the process.

Court

Plea of guilty entered against the accused. He had no business going

around carrying a spear. Accused is sentenced to 20 years
imprisonment. Orders accordingly.

Signed: J . Msemakweli
Chief Magistrate
14.4.2014

Page 6 of 7
Aggrieved by the Court's decision, Mr. Simba Mkali immediately asked his wife, Chausiku to instruct an
Advocate to appeal against the same. Mrs. Chausiku Simba duly instructed Chaleoleo & Company
Advocates of Nairobi on 14' April 2014 to appeal against the aforesaid decision. On the same da y the
Advocates applied for certified copy of proceedings and decision in Kaa Chonjo Chief Magistrate's Court
Criminal Case No. 44 of 2014, Republic -vs-Simba Mkali, which were supplied on 171h April, 2014.

You are the Counsel in Chaleoleo & Compan y Advocates detailed to deal with Simba Mkali's case on behalf
of the firm.

Prepare the requisite instrument of appeal.

(10 Marks)

Page 7 of 7
 THE KENYA SCHOOL OF LAW

EXAMINATION FOR ADMISSION TO

THE ROLL OF ADVOCATES

CRIMINAL LITIGATION — ATP 101

19TH NOVEMBER, 2014

DURATION: 3 HOURS

Instructions to Candidates

(a) Answer Question ONE and THREE OTHER Questions.

(b) All questions carry fifteen (15) marks each.
(c) Marks may be lost for illegibility.

PLEASE TURN OVER

Page 1 of 9
1. On 24 October 2014 at about 8.00 p.m. Ms Irene Anyonje, Officer Commanding Police Division
Kamukunji was conducting a special police swoop within her area of jurisdiction in the
Eastleigh District of Nairobi within Nairobi County. In her company was Corporal Tina
Awuonda and Corporal Wilberforce Kikanu. Ms Anyonje is known to be a very tough no
nonsense Officer.

On this particular evening, the swoop that was underway was triggered by a terror alert issued
by the Federal Republic of Somalia. Indeed the Federal Republic of Somalia had issued a travel
advisory to its citizens visiting Kenya or intending to visit Kenya. The advisory was to the
effect that there was an imminent terror threat in Kenya against Somali interests larger Horn
of Africa interests. Specifically, citizens of the Federal Republic of Somalia were warned
against visiting the Eastleigh District of Nairobi County and to avoid large gatherings. In
addition the advisory warned Somali citizens to restrict their visits to Kenya on purely essential
travel.

Intelligence shared between the two countries indicated that a terror planning plot was at an
advanced stage in Eastleigh and that execution of the plot was nigh. Of keen interest to Ms
Irene Anyonje and her team was a Bar and lodging on 12th Street within Eastleigh district called
Pink Cube. It was believed that the plot was being conceived in one of the rooms in Pink Cube
Bar and Lodging.

Ms Irene Anyonje and her team was backed by over three hundred regular and anti-terror
police officers. The first point of call for the team was the reception of the Pink Cube Bar and
Lodging. The shaken receptionists at the Bar, Ms Dorothy Nabolindo quickly availed a
comprehensive list of guests. One particular name on the list aroused Ms Anyonje's curiosity.
A booking under the name Prof. Mrs. Tito Hadoto and Partner. The two had been booked in
room number 320. A closer examination of copies of their passports left at the Bar's reception
revealed that the two were South African Nationals but their passports appear to have been
issued in Angola. In addition, they had been allowed into Kenya for one month but had sought
from the immigration department and were granted numerous extensions of their stay then
aggregating 6 months. The purpose of stay was described as "Consultant expatriates in
Laparoscopic Procedures.' No further details were available.

Ms Anyonje decided to visit the said room 320. On knocking at the door a woman opened the
door and introduced herself as Prof. Mrs. Hadoto. A man leisurely smoking cigarettes while
watching news on television introduced himself as Kukundawire Hadoto. The man before Ms
Anyonje looked very familiar to her. She could not immediately recall the point of interaction.
However Corporal Awuonda recognized the man as one Joseph Kony a rebel Commander of
a band of thugs terrorizing civilians in Northern Uganda under the name the Lord's Resistance
Army. The two were immediately taken into custody and kept at an undisclosed location
pending further directions.
 As soon as the Director of Public Prosecutions received information of the two being in custody
the local Interpol office notified him that there has been a long standing and unexecuted
warrant of arrest issued by the International Criminal Court sitting at the Hague in the
Netherlands against Mr. Joseph Kony for crimes against humanity and rape committed against
civilians. As for Prof. Mrs. Hadoto, her real name is Mrs. Namirimu Tumusiime. Mrs.
Tumusiime is a Ugandan citizen wanted by Zambian authorities for offences that include
harbouring fugitives (Joseph Kony) and theft of relief food in the Zambia Copper Belt Province.

The Director of Public Prosecutions is hard pressed with time and requires a well thought out
legal opinion on how to deal with the two individuals in custody. The file for the two is passed
over to you. You note, from the file, that Zambia is a designated Commonwealth Country
pursuant to Legal Notice Number 208/1972 and Legal Notice Number 47/1987. The director of
Public Prosecutions requires you to do the following:

a) Give him a concise legal opinion, with the aid of case law on the procedure of
Surrendering:
(i) Mr. Joseph Kony; and
(4 Marks)
(ii) Mrs. Tumusiime Namirimu;
(4 Marks)
To the respective authorities seeking them.

b) Assuming the request for Mrs. Tumusiime Namirimu was being made by Kenya to
Zambia. Prepare the necessary documentation to facilitate the request.
(7 Marks)

2. Ms Ewang Nambo and her boyfriend Mr. Colleta Gesicho are employees of Karina Korir and
Company Advocates a Nairobi based law firm, in the Accounts Department. Ms Ewang is in
charge of the key to the safe. The firm of Karina Korir and Company Advocates keep cheque
books in the safe. Mr. Colleta, on the other hand, is the authorized bank agent with access to
both office and client Accounts maintained at Mali Nyingi Commercial Bank.

On 4 October, 2014, Ms Nambo suggested to Mr. Colleta to consider 'borrowing', on a very

short term money that had been lying on their office's client account being Kshs. 900,000/. This
sum was deposited on the firm's client account by one Ongechi Okadia for the purchase of a
property in the Kitengela District of Kajiado County in the year 2010. A dispute as to the
ownership of the property arose in the vendor's family frustrating the sale. Mr. Okadia
instructed the firm to retain the money until an alternative parcel was identified. It is now four
years since the deposit was made. No one has heard from Mr. Okadia.

Page 3 of 9
It is believed that in June 2011, Mr. Okadia travelled to Mbarara in Western Uganda, on an
evangelization mission. On reaching Uganda, he found life more interesting than it was in
Nairobi. In addition, it is believed that the relocation to Uganda was deliberate as competition
for resources and harassment by his creditors in Kenya abruptly stopped. Manguro Kembero,
a talkative young man, had confided in the firm's managing partner that Mr. Okadia did not
plan to return to Kenya. He had gotten married to a refugee from Eastern Democratic Republic
of Congo one Miss Elizabeth. Ms Elizabeth bore Mr. Okadia quadruplets sometime in 2013.

He had also won several tenders to supply medical equipment to Uganda's Ministry of Health.
Ms Nambo had heard the firm's managing partner remarking that Mr. Okadia had no incentive
of ever returning to Kenya leave alone visiting.

Ms Nambo's proposal was that she would avail a cheque leaf from the client's account's cheque
book. Mr. Colleta would then fill in the cheque and describe himself as the payee. He would
then imitate the Managing Partner's signature, bank the cheque on his account and draw funds
for purposes of financing their forthcoming wedding.

Initially, Mr. Colleta was hesitant to sign onto the proposal. However, after Ms Nambo
expressed doubts as to whether Mr. Colleta was 'man enough' to take some risks and decisions,
Mr. Colleta gave in and on 24 January, 2014 a cheque was handed over to him by Ms Nambo.
Colleta quickly drew the cheque in this name banked it and started making payments to their
wedding service providers in readiness for their wedding scheduled for 29th February, 2014.

Unknown to Ms Nambo and Mr. Colleta on 30 January, 2014 a purge on corruption started at
Uganda's Ministry of Health and Mr. Okadia was identified as having been at the centre of the
supply chain malpractice. Fearing for his life and liberty, Mr. Okadia abandoned everything in
Uganda and fled back to Kenya.

On 10th February, 2014 Mr. Okadia turns up at the firm for a meeting with the firm's Managing
Partner, one Mr. Karina Arunda. Mr. Okadia's mission is to get back his money to enable him
'begin life' anew. To Mr. Arunda's shock, he noticed that the money had left the Office client's
account on 25 January, 2014. He quickly made a report at the local police station.

In the meantime, on 12th February, 2014, Mr. Colleta was waylaid by one Bruno Royford along
Mupe Road in Ongata Rongai and assaulted. A medical report prepared by Dr. Ali Kikanu
opines that Mr. Colleta suffered soft tissue injuries to his neck and back as a result of the attach.
The genesis of the assault has since been linked to the fact that Mr. Bruno Royford had a
previous romantic relationship with Ms Nambo. However, their relationship broke down
sometime in October 2012 due to Mr. Bruno's incessant drunken stupors. Investigations have
revealed that Mr. Bruno learnt of the intended nuptials between Ms Nambo and Mr. Colleta in
a church announcement on 8th February 2014 and vowed to stop the wedding by all means.
 On 28th October, 2014, Ms Ewang Nambo, Mr. Colleta Gesicho and Mr. Bruno Royford are all
taken into custody at Rongai Police station. The Officer Commanding Station (OCS) has asked
you to polish up the investigation file shortly before charging the three.

a) Prepare a memorandum to the OCS in which you should do the following:-

(i) Identify offences (s) committed.
(3 Marks)
(ii) Explain the concept of joinder of persons and joinder of courts.
(3 marks)
b) Prepare the relevant charges.
(9 Marks)
3. On 25 September, 2014 the Cabinet Secretary for Interior and Coordination of Government the
Hon. Ida Mutabuza, concerned by the security situation in the country gave the following order
to the Inspector General of Police one Ms Muthoni Njeri. The order was also forwarded to the
press in form of a press statement. It read as follows:-

"Following recent security challenges in the country I have reviewed the

security infrastructure in the entire country and now direct every person from
the Bahoyi tribe to do the following:-
(a) Get special passes from my Ministry;
(b) Undergo screening to determine their loyalty and allegiance to Baba's
government;
(c) Members of the Bahoyi tribe will not be allowed entry into Nairobi
and Mombasa counties without prior written consent being sought
and obtained from my office.

This order takes effect today this 25 day of September 2014.

Xxxx
Signed"

On 26 September, 2014 a member of the County Assembly from Bahoyi County one Mr. Osino
Oyange was barred from entering Nairobi County by the Afande Shaba Muyanzi, Officer
Commanding Station, Kabete Police Station on grounds that she was executing the Cabinet
Secretary's orders.

Worried that he will miss his political party's launch of a Strategic Plan, Mr. Oyange abandoned
his motor vehicle at the police station and rode on a motorcycle to Bomas of Kenya, within
Nairobi County, the venue of the three day event.

During the 7 p.m. News, on 26 September, 2014, Afande Buyanzi saw Mr. Oyange, on television
smiling broadly as he sat next to his Party Leader. She immediately instructed officers under
her to have Mr. Oyange arrested and charged with the offence of disobedience of lawful
authority contrary to Section 96 (c) of the Penal Code Cap.63 of the Laws of Kenya.

Page 5 of 9
 On 27 September, 2014 at about 6.30 a.m. officers from the dreaded flying squad police Unit
arrived at Bomas of Kenya and arrested Mr. Oyange. He was thereafter taken to Kibera before
the Kibera Principal, Magistrate Hon. Betty Gathara, where he was charged with the offence of
disobedience of lawful authority contrary to section 96 (c) of the penal code Cap. 63 of the Laws
of Kenya. He has since been admitted to cash bail of Kshs.20,000.

Mr. Oyange calls on you, in your chambers, where you practice in the name and style of Double
X and Company Advocates. Your managing partner, Ms Ivy Kawira, advises that the most
appropriate remedy in the circumstances is Judicial Review.

a) Identify the prerogative writs that you will apply for.

(2 Marks)
b) Prepare the following document:
i) Statement of facts;
(7 Marks)
ii) Notice of Motion (assume that leave was granted)
(6 Marks)
4. a) Name three procedural mechanisms through which the process of termination or
discontinuation of criminal proceedings may be initiated.
(3 Marks)

b) What are the respective outcomes of discontinuation of criminal proceedings before or after the
close of the prosecution's case and what are the implications of such outcomes as to whether
the accused may or may not again face charges against him/her on account of the same facts?

(3 Marks)

c) Mr. Abunuasi Kichwangumu, a cashier in Dololo livestock Co-operative Society Limited, was
on 13th March, 2013 arraigned in Bura Chief Magistrates Court Criminal Case No. 111 of 2013
on a charge of stealing by servant, contrary to section 281 of the Penal Code Cap 63. The
particulars of offence alleged that he, Abunuasi Kichwangumu on diverse dates between 2nd —
23rd January, 2013 at Dololo Livestock Co-operative Society Limited office in Moyale Count

within the Republic of Kenya stole various sums of money totaling Kshs.555,550 the property
of Dololo Livestock Co-operative Society Limited.

For the next over 1 year there was inactivity in presentation of prosecution witnesses in court
ascribed mainly to instability in the area occasioned by frequent incursions by Al-Shabaab
militia into the region. The last time the prosecution presented a witness, one Mr. Abdi
Makengeza, an auditor, was on 14th May, 2014. Mr. Makengeza, a key witness, gave evidence-
in-chief but could not be cross-examined owing to shortage of time. Next hearing was fixed
for 28 may, 2014 but Mr. Makengeza's cross-examination could not proceed as the trial
magistrate was taken ill.
 The case was fixed for mention on 11 June, 2014 but on that date the court was informed that
Mr. Makengeza had mysteriously disappeared. Another mention was fixed for 11th July, 2014
but on that date the court was informed that Mr. Makengeza's body had been found early that
morning lying about 100 metres in the bushes behind the aforesaid co-operative Society offices.
Information reaching the prosecution cast suspicion around the accused one Kichwangumu as
having had a hand in Makengeza's disappearance and death. It was the prosecution's view
that the Proceedings against Kichwangumu ought to be halted temporarily while the police
explored the possibility of obtaining a replacement for Makengeza as a witness, concurrently
with their investigation into Kichwangumu's possible complicity in Makengeza's death.

You are an Assistant Director of Public Prosecutions in the office of the Director of Public
Prosecutions. Draft a suitable and duly supported application for filing in the trial court
informing the court that the Republic does not intend that proceedings against Abunuasi
Kichwangumu continue.
(9 Marks)

5 a) Define duplicity and explain why it is considered prejudicial to an accused person's right to a
fair trial.
(5 Marks)

b) The offence of trafficking in obscene publications is triable by any subordinate court. The
following proceedings appear in the record of Karumaindo resident Magistrates Court
Criminal Case No. 144 of 2014 at the Court's sitting of Friday 10th October, 2014.

"10/10/2014 Coram Ibrahim Kazamoyo — Resident magistrate.

Phillip Kachachawa — State Counsel/Prosecutor
Dalmas Mkosi — Accused/unrepresented
Ms Salma Kazibure — Court Clerk

Court
The charge against you, Dalmas Mkosi is: Trafficking in obscene publications,
contrary to section 181 (1)(a) of the Penal Code, Cap. 63.

The particulars of offence are: that you, Dalmas Mkosi on 9th September, 2014 at
Karumaindo village in Maskini Halali County within the Republic of Kenya, for
the purpose of, or by way of trade, or for the purpose of distribution or public
exhibition had in your possession seventy-seven photographs of an obscene nature
which would tend to corrupt the morals of any person into whose hands these
publication are likely to fall.

How do you plead?

Accused (responds in English)

I know no law and do not understand the charge.

Court
Ignorance of the law is no defence: Ref. Section 7 of the Penal Code Cap 63 of the
Laws of Kenya. In any case the charge and particulars were read in English which
you the accused seem to understand and speak well. English is one of the
languages of the court in subordinate courts: Ref. Section 198(4) of the Criminal

Page 7 of 9
 Procedure Code, Cap.75. I do not accept that you the accused do not understand
the charge and you are warned against wasting the court's time by claiming not to
understand the charge. If you persist in not pleading to the charge and force the
court into undertaking a full trial of the case, you risk dire consequences in the
event of the trial ending in your conviction. I ask you again:
How do you plead?
Accused
In view of the court's warning, I plead guilty.

Prosecutor
Facts as per charge sheet.

Accused
I reiterate that I do not understand the charge or what I am require to plead to.

Court
Accused found guilty on his own voluntary plea of guilty and convicted
accordingly.

Prosecutor
Treat the accused as a first offender.

Accused
Since I have heeded the court's advice and warning not to waste its time and
pleaded guilty, although I do not understand the charge, I hope the court will
exercise leniency.

Court
The offence is serious and deserves deterrent punishment. Accused is sentenced
to 5 years imprisonment plus 6 strokes of the cane.

Signed:
I. Kazamoyo
Resident Magistrate
10/10/2014

Instructions

The accused is upset about the conduct of the case and decision by the court. Upon arrival at
Maskini Halali County Prison on the same day ie. 10/10/2014 he got advice from fellow inmates
that you are the best criminal litigation Counsel around. He immediately communicated with
and requested his wife Roseline Mkosi to instruct your firm, Wakili Shupavu and Company
Advocates of Nairobi to appeal against the decision of the court and how it was reached.
Roseline visited your firm on Monday 13/10/2014 and instructed the firm to appeal accordingly.
Assume you applied for certified proceedings and the decision of the court the same day and
obtained them by Wednesday 15/10/2014. There is urgency in the matter, especially in view of
the corporal punishment aspect of the sentence.

Draft the necessary appeal documents for filing.

(10 Marks)
6. Mr. Mwenda Pole is a member of Majimazuri County Assembly in the Republic of Kenya. On
Tuesday 9th September, 2014 at 5.00 p.m he checked in at Zimamoto Hotel on the outskirts of
Mbalamwezi City within the County for a three-day Seminar for members of his County
Assembly which was scheduled to start the following day, Wednesday 10th September, 2014
and end on Friday 12th September, 2014. He duly registered for the seminar upon arrival at the
Hotel. Chatted jovially with other seminar participants for about half an hour, collected his
seminar papers and retired to his room.

The seminar was scheduled to start at 8.30 a.m. on 10th September, 2014 but he got to the
seminar Hall at 9.30 a.m. looking restless. Within about 15 minutes of his arrival at the seminar
Hall, his mobile phone vibrated and he stepped out to answer the incoming call. He returned
after 5 minutes but had hardly settled down when his phone vibrated once more. This second
call seemed to disturb him. As he stepped out to answer the call he was heard to enquire from
the caller: "what is it again, Inspector?" He (Mwenda Pole) got out and stayed on phone for a
further 5 minutes before returning to the Hall. At that juncture he confided in his table mate,
Julius Kaisari that the persistent caller had described himself as Inspector Karanga from
Mbalamwezi Divisional Police Headquarters; that he had information that his (Mwenda Pole's)
life was in danger on account of his association with a group that was instrumental in the
impeachment of the Governor of Majimazuri County; and that he (inspector Karanga) was on
his way to Zimamoto Hotel to pick and take him to a place of safety and for him to assist the
police in their investigations. Mwenda Pole then picked his papers, stepped out of the Hotel
and entered a grey Peugeot 504 station wagon car Reg. No KSG 333.

Some of whose occupants wore what looked like police uniform and the car drove away in the
direction of Mbalamwezi divisional Police headquarters. Mwenda Pole never returned to the
seminar until it ended on Friday 12th September, 2014.

On the day Mwenda Pole disappeared from the seminar venue (Tuesday 10th September, 2014),
Julius Kaisari informed his (Mwenda Pole's) wife Zainabu about Mwenda Pole's
disappearance. Zainabu visited Mbalamwezi Divisional Police Headquarters to check if her
husband was there but she was told he was not there. Zainabu next enquired from all police
stations in the county whether they were holding her husband but all the answers were
negative. By Monday 15th September, 2014 Mwenda Pole was still at large and had not been
taken to court. On the same day Mrs. Zainabu Mwenda Pole visited the firm of Halahala &
Company Advocates, Nairobi and instructed them to seek judicial intervention to find the
whereabouts and condition of Mr. Mwenda Pole and secure his liberty. Mrs. Zainabu has
credible information that Mr. Mwenda Pole is being held by the Police at Ngware Police Station

You are a partner in the firm of Halahala & Company Advocates and have been directed by
the firm to seek the judicial remedy of Habeas Corpus for Mwenda Pole. Draft the necessary
documents for filing.

(15 Marks)

Page 9 of 9
 COUNCIL OF LEGAL EDUCATION

EXAMINATION FOR ADMISSION

TO THE ROLL OF ADVOCATES

ATP 101: CRIMINAL LITIGATION

TUESDAY 24TH NOVEMBER, 2015

DURATION: 3 HOURS

Instructions to Candidates

(a) Candidates MUST answer FOUR questions

(b) Question ONE is compulsory
(c) All questions carry 15 marks each
(d) Marks shall be lost for illegibility

PLEASE TURN OVER

1. On the night of 10th October, 2015, Bwana and Bibi were resting at their Pepo Lane home in Zuri
village. At about 9 p.m. they heard their dogs barking and shortly thereafter Machozi the
watchman was at the front door knocking frantically. Bwana opened the door and two men
wielding guns ordered them including Machozi to lie down. The armed men proceeded to tie them
and then removed their gold watches, wedding rings, Bibi's diamond necklace and earrings. They
stuffed the valuables into a bag. They then picked two Iphones, two Ipads and two laptop
computers and packed them into the same bag.

Meanwhile Dhahabu, Machozi's wife arrived and headed for the main house to find out why the
gate was wide open. The two gunmen on finding out that she was the watchman's wife requested
her to get them drinking water. They followed her to their (Watchman's) quarters, raped her and
left. Still in shock Dhahabu went to the main house where she managed to untie her husband,
Bwana and Bibi.

Bwana and Bibi reported the matter to Mateso Bila Chuki Police Station. Inspector Kaa Chonjo
was assigned the investigations. Meanwhile, two gentlemen Supu and Bora arrived at the police
station the following day hurling insults at each other. It turned out that Bora had sold an IPad
and jewelry to Supu and Supu's complaint was that Bora had failed to avail the proper
documentation for the IPad and the jewelry.

Bora offered to take Kaa Chonjo to the place where he had bought the IPad and jewelry that he had
sold to Supu. They proceeded to a house in Jiji Jinga belonging to Jicho and Pevu. They found the
two men, Jicho and Pevu. The two were showing some watches and laptops to two other men who
melted away as soon as they saw kaa Chonjo. Jicho and Pevu also tried to get away but were
restrained by Bora and the chief Inspector. As Jicho and Pevu could not produce documentation
with respect to the goods, Kaa Chonjo ordered them to carry all the items to the police station. He
then called Bwana and Bibi who came and identified the two Ipads and two watches as those that
had been stolen from them. They both said they had been too terrified to look directly at the
gunmen during the attack but were convinced that they were of the same build as Jicho and Pevu.

Kaa Chonjo would like to prefer charges.

(6 marks)
(a) Advise him on which offences and against whom they should be preferred.
(b) Draft the charges. (9 marks)

2., (a) Discuss the meaning of extradition. (2 marks)

(b) Apart from extradition, name four processes through which states can transfer suspects to
another jurisdiction. (4 marks)

(c) Tobi Ogo, a Ugandan resident in Rwanda was driving a lorry KKBA 007 full of timber. He
had just crossed into Kenya from Uganda and in total disregard to the 30 kph speed limit was
driving at 50 kph, thereby failing to notice the road bumps that were ahead. He rammed into the
first one and swerved to avoid the next one. As a result he hit a female pedestrian who died on the
spot. Sensing dan er, Tobi fled off from the scene and made his way back to Rwanda.

C t'L-4

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The Director of Public Prosecutions in Kenya has directed that you commence and complete the
process of getting Tobi Ogo back to stand trial in Kenya.

Set out the procedure that you will follow: (8 marks)

Mokote Manga is a teacher at Malindi Secondary School. He has been arraigned before Jaji Odor,
Senior Resident Magistrate at Maundu Law Courts. The offence is that on 16th March 2015, he
caned Mwalifu Cheza a form one student on his fore arm and caused a hairline fracture for failing
to do his homework. Based on this he is charged with causing grievous bodily harm contrary to
Section 234 of the Penal Code punishable by up to 7 years imprisonment and fine of up to
Kshs.200,000/-.

(a) Assuming that he wishes to plead guilty, discuss the process he will go through from plea to
sentencing. (8 marks)
(b) Assuming that does not plead guilty, set out the step by step procedure from the finding of
prima facie case to sentencing. (7 marks)

Wambira Kamau decided to pay a surprise visit to her boyfriend Musyoka Kasi at his house in
Ngong. On arrival she noticed a pink Toyota Vitz parked next to his Subaru. Suspicious of what
would be going on, she crept to the rear of the house, peeped through his bedroom window and
saw him lying on the bed with a white woman watching a movie.

Enraged, she picked a stone, broke the main door headed straight for the white woman and stabbed
her left eye with a nail file. She then fled the scene leaving the white woman named Kimmie
bleeding profusely. After frantic efforts Musyoka was able to get Kimmie to Maisha Mbaya
hospital where she is still in critical condition. The same night Wambira was arrested and
arraigned in court the next day.

Wambira, a single mother of two children one of whom is blind relies on her mother for upkeep
and on odd jobs. She has instructed you to apply for bail which the prosecution is objecting to.

(a) Name the types of bail that one can apply for. (3 marks)
(b) Identify two grounds upon which the prosecution may object to bail. (2 marks)
(c) Set out the grounds and factors which you as defense counsel would argue for Wambira's
release on bail. (10 marks)

5. Father Beruli was found dead in his house at Kapodo with knife wounds on his neck and chest.
Investigations indicate that Father Sepedi is amongst the suspects but the evidence is insufficient
to warrant a charge of murder. Chief Inspector Wamasi of the CID office has decided to carry out
an inquest before Mwanaisha Maneno, Principal Magistrate, Jilani Court.

(a) In point form, set out the process and procedure to be followed by Chief Inspector Wamasi
and Mwanaisha Maneno to the conclusion of the proceeding. (10 marks)
(b) Give five (5) advantages of having a Coroners Service Act. (5 marks)

6. Rishpa Sonja a student at the Kenya School of Law occasionally babysits two of James's children
51/2 year old Marylee and 4 year old Toby at their residence on Manila Lane to earn extra income.

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 On 4/12/2014 the James's went out for dinner at Karen Club and left the children with Rishpa. Soon
after Rishpa's boyfriend Manoj Singh joined her and they left the children in the play area and
went into James's bedroom and took all the jewelry as well as Mr. James's Saville Row suits.
Unknown to them Marylee had followed them, and hid behind a dressing table. She quickly
slipped back to the play room as they bid one another good night.

Rishpa came back to the playroom and informed the children that something bad had happened.
Soon after Mr. & Mrs. James arrived back and found Rishpa crying and the children looking
distraught. Rishpa informed them that Gido the neighbour's son had come into the house with
two other men of African descent, tied her up and stole the jewelry and suits. The James's reported
the matter to the police and Gido was arrested.

The next morning Marylee heard her parents discussing how their neighbour's son Gido was a bad
boy who had robbed them of various items the night before. She then told the parents that Gido
had not been to the house and that it was shpa and an Asian looking man who did it.

The James's then took Marylee to the police station to record a statement based on which Rishpa
and Manoj have been arrested and charged.

(a) Explain the procedure and process to be followed by the police in handling Marylee.
(5 marks)
(b) Explain the procedure and process to be followed by the Trial Court in taking Marylee's
evidence. (10 marks)

7. Tanga Mwamba was charged with causing the death of Wambaya Wandati contrary to section 46
of the Traffic Act Cap.403 Laws of Kenya, in that he drove recklessly and dangerously. After a full
hearing he has been sentenced to 10 years' imprisonment by Haraka Haraka Resident Magistrate
Vihiga Court.

As Tanga's Lawyer:

(a) Explain to him the difference between an appeal and a revision. (4 marks)
(b) Explain to him whether or not he is entitled to a revision giving reasons. (5 marks)
(c) You have decided to pursue an appeal. Draft it. (6 marks)

8. Fifteen former students of Hill Mary Girls School had been meeting annually for years. They
decided in 2004 to register Achievers Women's Group under the Society's Act and elected Susi Juu
as the chairperson, Sema Gari Secretary and Njadi Joma as Treasurer.

After 3 years they had contributed a total of 36 million shillings and resolved to buy a farm in
Kitengela. They identified land worth 12 million shillings. The Chairperson, Secretary and
Treasurer as the signatories to the account were mandated to withdraw the money and pay the
Vendor. However at the next meeting the treasurer claimed that the group's account had only 6
million shillings on the basis that a lot of money had been spent on their quarterly meeting. She
was supported by the chairperson and the Secretary. Demands by the other members for proper
accounts by the 3 officials bore no fruit. The members reported the matter to the Kilimani Police
Station. Every time they inquired on the progress they are advised to settle the matter amicably.
To make matters worse a member of the society has recently spotted the Secretary and the

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 Investigating Officer having lunch at an exclusive restaurant. They reported these developments
and frustrations to the office of the DPP and still no action has been taken.

It is now 6 months after they reported the matter to the police and 3 months after reporting to the
DPP. They have given up and wish to take action on what they believe is theft by their 3 officials.

(a) Advise them on the procedure and the action to be taken. (5 marks)
(b) If you decide to go to court draft the necessary charges. (10 marks)

9. (a) Define a hostile witness explaining the value of their evidence in a criminal trial.
(7 marks)
(b) Set out the procedure and process to be followed where a witness turns hostile.
(8 marks)

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 COUNCIL OF LEGAL EDUCATION

EXAMINATION FOR ADMISSION

TO THE ROLL OF ADVOCATES

ATP 101: CRIMINAL LITIGATION

TUESDAY 6TH DECEMBER 2016

DURATION: 3 HOURS

Instructions to Candidates

(a) This paper contains Four printed pages including the cover page, with a
total of Six questions
(b) Candidates MUST answer FIVE questions
(c) Question ONE is compulsory and carries 20 marks
(d) All other questions carry 10 marks each
(e) Answers MUST be supported by relevant case law and statutory provisions
where required

PLEASE TURN OVER

QUESTION ONE

Police have long suspected that Hamid Hamil was a member of Al Shabab, a terrorist group
operating from Kenya and Somalia. Hamid travelled to Somalia for a period of six months and
returned to Kenya on 1st August 2015. Police suspect that while in Somalia, Hamid received
training on weapons and combat.

Upon his return, police tracked him down to a mosque in Lamu where he was delivering a lecture
to the youth after prayers on one Friday. Police raided the mosque on suspicion that Hamid
was in the process of radicalizing the youth and probably recruiting them into Al Shabab. Violent
clashes ensued and several people were arrested and bundled into police lorries. Local media
has confirmed through photos that Hamid is one of those who were arrested.

Hamid's family travelled to Lamu from Nairobi the following day to check on him after hearing
the news of his arrest. They checked at Lamu Police Station where those arrested had been
detained but police informed them that he had not been booked there. He was also not among
those who had been arraigned in court that morning. Efforts to know his whereabouts proved
futile as the police refused to disclose his whereabouts.

The family has written to the Inspector General of Police and the Director of Public Prosecutions
but have not received a response.

Malkia Hamil, the distraught mother of Hamid has now instructed you to take up the matter.

Draft the necessary documents for filing in court. (20 marks)

QUESTION TWO

Young Dagame, aged 15 was initially charged with murder which was reduced to manslaughter.
He pleaded guilty and was convicted. In the course of mitigation, it emerged that his family
and that of the deceased had settled the matter by way of payment of "blood money" and other
cultural ornaments.

The deceased family received 40 heads of cattle. The father to the deceased has written to
court to have the accused person discharged.

The court directed that a victim impact assessment report be prepared. The report confirmed
that the families are fully reconciled through compensation and traditional rituals and there
would be no retaliation.

(a) Locate the place of victim's impact assessment in law. (5 marks)

(b) Identify the options for the court in Dagame's case. (5 marks)

QUESTION THREE

Over the past few weeks, there have been clashes between the police and members of a
separatist group by the name of "Mali Yetu" who are agitating for autonomy of the Paku region
which is to the north eastern side of Kenya bordering South Sudan. There are reported incidents

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of looting and arson within Paku Town which has been at the Centre of the clashes. Police have
arrested several protesters whom they intend to charge with offences against public order,
stealing and arson.

Tomasu is one of those arrested on suspicion of arson. Tomasu has been previously convicted
of minor offences but has not been convicted of a felony like the one he is facing. He is said to
have family connections in the neighbouring Republic of South Sudan. However, he has not
jumped bail previously. He is currently out on bail in an unrelated public disorder case. He
stays within Paku Township with his wife and one year old son. He works as a casual labourer
in a construction company and he is the sole breadwinner for the family.

Tomasu has instructed you to represent him at his arraignment and to make a bail application
on his behalf.

Advise him on the prospects of his bail application. (10 marks)

QUESTION FOUR

Kagwiria and her husband Kinyua were attacked by some unknown men on 12/5/2010 at 4 p.m.
Kagwiria sustained multiple injuries which led to the amputation of her right hand. Kinyua
received several cuts on the head. Both were left for dead. Nothing was stolen from them and
the motive for the attack remaines unknown.

Chief Inspector Gatobu of Marimanti Police Station rushed them to hospital. When they were
able to speak, he took down their statements. They both described one of the assailants as
being of medium height and built, with a tattoo on the right forearm and a large scar on the
forehead. He was also said to be of dark complexion.

A few months later, Kinyua succumbed to his injuries.

On 14/12/2012, the police arrests Njamba Njeru for being drunk and disorderly. Chief Inspector
Gatobu notices he has a tattoo on the right forearm and a scar on the forehead. He needs to
keep Njamba for a few days to conduct investigations. Marimanti Law Courts is manned by a
Senior Resident Magistrate. The nearest High Court is 2_09._kms away.

(a) Identify the options available to Chief Inspector Gatobu within the confines of the
law. (4 marks)
(b) Explain how an identification parade would be conducted in this case. (6 marks)

QUESTION FIVE

(a) Explain the powers of revision conferred upon the High Court in criminal proceedings.
(4 marks)
(b) Discuss the object and principles governing the exercise of power of revision.
(6 marks)

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QUESTION SIX

"Sentencing is an important task in the matters of crime... What sentence would meet the ends
of justice depends on the facts and circumstances of each case..."

(per Supreme Court of India in M.P -v- Bablu Natt [2009]2 S.C.C. 272 para.12.
cited with approval in R.-v- Paul Mwango [2016]eKLR

(a) In light of the above statement, discuss the principles governing sentencing in Kenya.
(6 marks)

(b) Identify the circumstances under which the Court of Appeal will interfere with the
sentence imposed by the High--C-eurt acting in its original jurisdiction and as an
appellatesourt, and when the High Court will interfere with the senWce imposed
by the lower court. (4 marks)

END

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