Kenya (Criminal Benchbook)

CRIMINAL PROCEDURE
BENCH BOOK
February 2018
Table of Contents
ACKNOWLEDGMENTS ............................................................................. xi
FOREWORD................................................................................................ xiii
LIST OF ABBREVIATIONS ...................................................................... xv
USER GUIDE ............................................................................................... xvi
CHAPTER ONE:
PRINCIPLES UNDERPINNING THE CRIMINAL JUSTICE SYSTEM .......... 1
I. Introduction .............................................................................................. 2
II. The Constitutional Framework for State Organs ...................................... 3
III. Equality and Dignity ................................................................................. 3
IV. Vulnerable and Disadvantaged Groups .................................................... 4
V. Freedom from Torture, Cruel, Inhuman, and Degrading Treatment ........ 5
VI. Privacy ...................................................................................................... 5
VII. The Constitution and the Judicial Process Generally ............................... 6
Independence of the Judiciary: The Institution and the Court .................. 6
Expeditious Trial ...................................................................................... 6
Undue Regard for Technicalities .............................................................. 6
Transparency and Accountability ............................................................. 7
Promotion of Alternative Forms of Dispute Resolution ........................... 7
VIII. Constitutional Rights Related to the Criminal Process ............................. 9
IX. Rights of an Arrested Person .................................................................... 9
Right to Information ............................................................................... 10
Right to Remain Silent ........................................................................... 10
Right to an Advocate and Communication with Others ......................... 10
Criminal Procedure Bench Book

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Right not to be Compelled to Make a Confession or Admission ........... 10
Right to be Separated from Convicted Prisoners .................................... 10
Right to Appear in Court within Twenty-Four Hours ............................. 11
Right to Bail............................................................................................ 11
X. Rights of an Accused Person .................................................................. 12
Right to be Presumed Innocent ............................................................... 12
Rights Connected with Preparation of Defence ...................................... 12
Right to Public Trial ............................................................................... 13
Right to an Expeditious Trial .................................................................. 13
Right to be Present .................................................................................. 13
Right to an Advocate .............................................................................. 13
Right to Remain Silent............................................................................ 14
Rights to Evidence .................................................................................. 14
Right not to Incriminate Oneself ............................................................ 14
Right to an Interpreter ............................................................................. 15
The Principle of Legality ........................................................................ 15
Right to Protection from Double Jeopardy ............................................. 15
Right to the Least Severe Punishment .................................................... 16
Right to Court Records ........................................................................... 16
XI. Rights of a Convicted Person ................................................................. 16
Right to Court Records ........................................................................... 16
Right to Appeal or Review ..................................................................... 16
Right to Apply for a New Trial............................................................... 17
CHAPTER TWO:
PRELIMINARY ISSUES ............................................................................. 18
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I. Jurisdiction of Courts in Criminal Matters ............................................... 19
Magistrates’ Courts................................................................................. 19
The High Court ....................................................................................... 20
The Court of Appeal ............................................................................... 21
The Supreme Court of Kenya ................................................................. 22
II. Jurisdiction.............................................................................................. 22
III. Transfer of Cases .................................................................................... 23
Transfer of Cases between Magistrates .................................................. 23
Transfer of Cases by the High Court ...................................................... 23
IV. Procedures before Presentation in Court (Pre-arraignment) ................... 24
Arrest ...................................................................................................... 24
Detention Beyond Twenty-Four Hours ................................................... 25
Children in Custody ................................................................................ 25
Persons with Disabilities......................................................................... 26
Charge Sheet and Information ................................................................ 27
Joinder of Counts .................................................................................... 27
Multiple Capital Charges and/or Capital Charges Together with
Non-Capital Charges .............................................................................. 29
Joinder of Accused Persons .................................................................... 29
Objection against a Charge or Information............................................. 31
Amendments and Substitution of the Charge ......................................... 31
V. First Court Appearance ........................................................................... 33
Legal Assistance ..................................................................................... 33
Interpreter ............................................................................................... 35
Well-being of the Accused Person ......................................................... 37
VI. The Plea .................................................................................................. 37
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Procedure on Taking Plea ....................................................................... 38
Plea of Guilty .......................................................................................... 39
Plea of Not Guilty ................................................................................... 41
Plea Bargaining............................................................................................ 42
Procedure for Persons of Unsound Mind................................................ 44
Plea of Autrefois Acquitor Autrefois Convict ........................................ 45
Change of Plea ........................................................................................ 46
Disposal of Exhibits after Plea ............................................................... 46
VII. Release on Bail or Bond Pending Trial .................................................. 47
Compelling Reasons ............................................................................... 48
Bail in Minor Offences ........................................................................... 51
Bail Considerations for Children ............................................................ 52
Sureties and Securities ............................................................................ 53
CHAPTER THREE:
THE TRIAL PROCESS
GENERAL MATTERS RELATINGTOTRIAL ........................................ 55
I. Public Trial ............................................................................................. 56
II. Attendance of Parties .............................................................................. 58
Attendance of the Accused Person ......................................................... 58
The Complainant’s Attendance .............................................................. 59
III. Expeditious Conduct of Trial.................................................................. 60
IV. Adjournment of Hearing ......................................................................... 62
Mention of Cases .................................................................................... 64
Part-heard Cases ..................................................................................... 64
V. Termination of Cases .............................................................................. 66
Termination by the Director of Public Prosecution ................................ 66
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Withdrawal of Complaint by Complainant ............................................. 67
Alternative Dispute Resolution Mechanisms in Criminal Cases ............ 68
Death of Accused.................................................................................... 69
VI. Case Management................................................................................... 69

VII. Disclosure of Evidence ........................................................................... 70
Disclosure by the Prosecution ................................................................ 70
Disclosure by the Accused Person .......................................................... 71
Recusal of the Presiding Officer ............................................................. 71
VIII. Witnesses ................................................................................................ 73
Swearing of Witnesses ............................................................................ 73
Credibility of Witnesses ......................................................................... 73
Refractory Witnesses .............................................................................. 74
Hostile Witnesses.................................................................................... 75
Commission for Examination of Witness ............................................... 75
Vulnerable Witnesses ............................................................................. 76
Persons with Disabilities......................................................................... 77
Children .................................................................................................. 79
Victims of Sexual Offences .................................................................... 80
Witness Protection .................................................................................. 81
High Court Orders of Protection............................................................. 81
IX. Taking Evidence ..................................................................................... 82
Language of the Trial.............................................................................. 82
Taking the Evidence of Children ............................................................ 82
Taking the Evidence of Persons with Mental Disabilities ...................... 84
Taking Evidence through Intermediaries ................................................ 85
Expert Evidence ...................................................................................... 86
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Electronic and Digital Evidence ............................................................. 87
Teleconferencing and Video Conferencing ............................................ 88
Exhibits ................................................................................................... 89
Confession .............................................................................................. 90
X. Participation of Victims During Proceedings ......................................... 93

XI. Criminal Responsibility of a Child ......................................................... 94
XI. The Hearing .............................................................................................. 95
Conduct of the Prosecution Case ............................................................ 95
Opening Speech ...................................................................................... 96
Choice of Witnesses ............................................................................... 97
Order of Witnesses ................................................................................. 97
Examination in Chief .............................................................................. 98
Cross examination by Defence ............................................................... 98
Re-examination ....................................................................................... 99
Questions from the Court........................................................................ 99
Prima Facie Case or No Case to Answer ................................................ 99
Conduct of Defence Case ..................................................................... 100
Defence Witnesses ................................................................................ 101
Close of the Defence Case .................................................................... 102
Evidence in Reply ................................................................................. 102
XIII. Calling of Witnesses by the Court ........................................................ 102
XIV. Inability to Raise a Defence Due to Mental Disability ......................... 104
XV. Visit to Locus in Quo ............................................................................ 105
XVI. Final Submissions ................................................................................. 106
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CHAPTER FOUR:
JUDGMENT, ORDERS AND SENTENCING ........................................ 108
I. The Judgment.......................................................................................... 109
Introduction .......................................................................................... 109
Determination ....................................................................................... 110
Contents of the Judgment ...................................................................... 111
Conviction for Offences Other Than Those Charged ........................... 113
II. Sentencing ............................................................................................ 114
General Principles in Sentencing .......................................................... 114
General Rules on Sentencing ................................................................ 117
Forms of Sentences ............................................................................... 119
Death Sentence ..................................................................................... 119
III. Imprisonment ........................................................................................ 121
Non-Custodial Sentences ...................................................................... 123
Suspended Sentences ............................................................................ 124
Fines...................................................................................................... 124
Forfeiture .............................................................................................. 126
Payment of Compensation .................................................................... 127
Security for Keeping the Peace............................................................. 129
Absolute and Conditional Discharge ......................................................... 129
Probation .................................................................................................... 130
Community Service Orders .................................................................. 132
Restitution ............................................................................................. 135
IV. Sentencing Hearing............................................................................... 135
The Prosecution .................................................................................... 136
The Convicted Person ........................................................................... 137
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The Victim ................................................................................................ 138
V. Determination of the Sentence............................................................... 138
VI. Sentencing Offenders Found ‘Guilty but Insane’ ................................. 139
Sentencing Offenders Who Cannot Understand Proceedings .............. 140
VII. Determining Orders for Children.......................................................... 140
VIII. Sentencing Adults Who Committed Offences While Minors............... 141
IX. Sentencing Sexual Offenders ................................................................ 142
X. Sentencing Categories of Offenders Requiring Further Consideration.143
XI. Costs ....................................................................................................... 144
CHAPTER FIVE:
APPEAL, REVIEW, REVISION, AND RELATED MATTERS............. 145
I. Appeals ................................................................................................. 146
Interlocutory Appeals ........................................................................... 146
Bail Pending Appeal ............................................................................. 147
II. Appellate Jurisdiction ........................................................................... 148
Appeal from a Subordinate Court to the High Court ............................ 148
Petition of Appeal ................................................................................. 149
Summary Rejection of Appeals ............................................................ 150
Summary Granting of Appeals ............................................................. 151
III. Appeals from the High Court to the Court of Appeal........................... 152
Documentation on Appeal to the Court of Appeal ............................... 154
Notice of Appeal ................................................................................... 154
Record of Appeal .................................................................................. 154
Memorandum of Appeal ....................................................................... 156
Filing a Memorandum of Appeal Out of Time ..................................... 156
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Withdrawal of Appeal........................................................................... 156
Hearing of Appeal................................................................................. 157
Orders on Appeal .................................................................................. 157
IV. Appeals from the Court of Appeal to the Supreme Court .................... 158
Retrial ................................................................................................... 159
V. Revision ................................................................................................ 160
Limits of the Revisionary Powers......................................................... 161
VI. Petition for a New Trial ........................................................................ 162
CHAPTER SIX:
SPECIAL PROCEDURES ......................................................................... 164
I. Introduction .......................................................................................... 165
II. Inquests ................................................................................................. 165
Jurisdiction in Inquest Proceedings ...................................................... 165
Mandatory and Discretionary Inquests ................................................. 165
Procedure in Inquests............................................................................ 166
The Finding........................................................................................... 167
III. Related Processes – The National Coroners Service ............................ 168
IV. Orders in the Nature of Habeas Corpus................................................ 168
Procedure in Habeas Corpus Applications ........................................... 169
V. Contempt of Court ................................................................................ 170
Jurisdiction in Relation to Criminal Contempt of Court....................... 171
Procedure .............................................................................................. 171
VI. Extradition Proceedings ........................................................................ 172
Bail........................................................................................................ 175
The Court’s Task ........................................................................................... 175
VII. Proceedings under the International Crimes Act .................................. 176
Jurisdiction............................................................................................ 176
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VIII. Corruption Offences ............................................................................. 177
IX. Private Prosecution ............................................................................... 180
Procedure for Instituting Private Prosecution ....................................... 180
Requirement for Leave ......................................................................... 181

Principles to Consider when Granting Leave ....................................... 182
Power of the DPP to Take Over Private Prosecution Proceedings ....... 183
LIST OF CASES ......................................................................................... 184
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ACKNOWLEDGMENTS
The Criminal Procedure Bench Book was prepared by a Technical Committee,

which was appointed by the former Chief Justice of the Republic of Kenya,
Hon. Mr. Justice (Dr.) Willy Mutunga. I wish to express my deep gratitude to
the Hon. Mr. Justice (Dr.) Willy Mutunga and Hon. Mr. Justice David Kenani
Maraga, the current Chief Justice, for entrusting the Technical Committee with
such an important task, and for the support extended to the Technical
Committee during the process. I salute the former Deputy Chief Justice Hon.
Lady Justice Kalpana Rawal who was instrumental in putting the Technical
Committee together and launching the process. My sincere appreciation and
gratitude also extend to the current Deputy Chief Justice Hon. Lady Justice
Philomena Mbete Mwilu, for her invaluable guidance, and Hon. Anne Amadi,
Chief Registrar of the Judiciary, for her support.
I wish to thank the members of the Technical Committee: Hon. Mr. Justice
William Ouko, the Vice-chairperson; Hon. Mr. Justice Kathurima M’Inoti;
Hon. Mr. Justice Edward Muriithi; Hon. Mr. Justice (Prof.) Joel Ngugi; Hon.
Felix Kombo; Hon. Denis Mikoyan; Mrs. Jill Ghai; Mr. Mokaya Orina; and
Mr. Njagi Nderitu, whose commitment and sacrifice have seen the successful
completion of the Technical Committee’s mandate. I give glory and honour to
the Almighty God for giving the members of the Technical Committee good
health and keeping them focused on accomplishing the task before them.
I am grateful to all the magistrates, judges and other stakeholders who actively
participated in the data and information gathering and validation exercises
undertaken by the Committee. Their erudite contributions were essential to the
development of the Bench Book.
My immense gratitude goes to Dr. Sarah Kinyanjui, the lead consultant,

Maureen Naserian Sitelu, the research consultant, Chris Kerkering for
proofreading and editing, and Dr. Masha Baraza, the coordinator for the
Technical Committee.

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I extend my special gratitude to Katiba Institute, Commonwealth Human
Rights Initiative, GIZ Kenya, International Development Law Organization
(IDLO), United Nations Development Program (UNDP), Judiciary
Performance Improvement Project (JPIP), and National Council for
Administration of Justice (NCAJ), for their financial and technical support.
Hon. Lady Justice Hannah Okwengu, EBS

Chairperson of the Technical Committee

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FOREWORD
In January 2017, I launched my strategic blueprint for the Judiciary entitled,

Sustaining Judiciary Transformation (SJT): A Service Delivery Agenda 2017-
2021. A key aspect of this agenda is to continue, improve, and deepen the
transformation journey that the Judiciary has been on since the promulgation
of the Constitution 2010 with a particular focus on enhancing service delivery
for our clients. The completion of the Criminal Procedure Bench Book and the
support given to the Technical Committee developing the Bench Book is a
good example of this strategy. It is one of the initiatives started by the Hon. the
former Chief Justice Dr Willy Mutunga that I have supported and seen through
to completion, recognizing it as an important tool through which justice will
be enhanced through improved jurisprudence, well explained and laid out
court processes, and the continuous improvement of the manner in which we
dispense justice in criminal proceedings.
The core objective of my strategy for the Judiciary is to enhance service

delivery for our clients and court users. As such, I continue to support and
emphasize mechanisms, processes and initiatives on the reform of the criminal
justice system, both procedurally and substantively. In response to the findings
and recommendations contained in the 2017 NCAJ commissioned audit of the
criminal justice system, I immediately set up a multi-agency Committee on
Criminal Justice Reform under the auspices of NCAJ and chaired by the Hon.
Lady Justice Grace Ngenye, to examine all aspects of criminal justice reform.
The findings and recommendations contained in the report of the Technical
Committee shall be invaluable in our wider efforts to improve the dispensation
of justice in our criminal justice system and will provide an appropriate
springboard for the multi-agency committee. The Bench Book is readable and
comprehensive, and will be of immense utility not only to our judges and
magistrates, but also to prosecutors, advocates, probation officers, litigants,
and other actors in the criminal trial process.

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I wish to thank the Technical Committee so ably chaired by Honourable Lady
Justice Hannah Okwengu for their efforts and commitment in producing a
Bench Book of such practical relevance and quality and a Report containing
many valuable and insightful findings and recommendations on policy and
legislative reform on criminal procedure. I would also like to thank our
development partners for their support in the development of this Bench Book,
and for their continued partnership and assistance to the Judiciary in its
continuing journey of transformation.
The Hon. Mr. Justice David K. Maraga, EGH

Chief Justice & President Supreme Court of Kenya

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LIST OF ABBREVIATIONS
ACECA Anti-Corruption and Economic Crimes Act

ADR Alternative Dispute Resolution Mechanism
CA Children Act
CoK Constitution of Kenya
CCA Court of Appeal (Organisation and Administration)
CPC Criminal Procedure Code
CSOA Community Service Orders Act
DPP Director of Public Prosecutions
EACA East African Court of Appeal
EACC Ethics and Anti-Corruption Commission
eKLR Electronic Kenya Law Reports
ICA International Crimes Act
LAA Legal Aid Act
NCSA National Coroners Service Act
PC Penal Code
POMA Power of Mercy Act
PPDA Public Procurement and Disposal Act
PWDA Persons with Disabilities Act
SOA Sexual Offences Act
VPA Victim Protection Act

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USER GUIDE
The Criminal Procedure Bench Book is a quick reference for judges and
magistrates presiding over criminal proceedings. While it has been designed
by and for judges and magistrates, it is hoped that other players in the criminal
justice system such as prosecutors, defence counsel, probation officers,
children officers, police officers, accused persons and academics will find it
useful.
This Bench Book provides guidance on statutes, judicial authorities, and

policy directions that are relevant in different stages of criminal proceedings. It
provides not only a quick reference but also guidance for locating relevant law.
The Bench Book is not intended to replace reference to primary sources such
as statutes, judicial authorities, and policy directions. To facilitate access to the
primary sources, the electronic version of the Bench Book provides hyperlinks
for the user to retrieve judicial authorities. In the print version, a List of Cases
at the end gives the internet address for every case mentioned in the Bench
Book which is available on the internet. The law is presented as at the time of
publication and the Bench Book does not discuss what the law ought to be.
Chapter One provides a brief overview of the principles that underpin criminal
justice. These principles are then discussed throughout the Bench Book with
detailed guidance provided in the chapters in which they apply. The
subsequent chapters provide direction concerning the different stages of
criminal proceedings. The Bench Book follows the order of a typical criminal
trial from pre-trial matters to appeal. Chapter Two addresses pre-trial matters,
that is, those that are dealt with before the trial commences. Chapter Three
deals with the actual trial and starts with general matters that relate to all
criminal trials. It then addresses the trial from opening speeches to the final
submissions. Chapter Four deals with the delivery of judgment and sentencing.
Chapter Five addresses appeals and other procedures that take place after
sentencing. Chapter Six provides a reference point for matters that relate to
processes that are subject to special procedures.

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Categories of individuals who require special attention, such as children and
persons with disabilities, are considered throughout the Bench Book as
opposed to having standalone chapters.

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CHAPTER ONE:
PRINCIPLES UNDERPINNING THE
CRIMINAL JUSTICE SYSTEM
Criminal Procedure Bench Book 1

I. Introduction
1. The criminal justice system comprises agencies involved in

apprehending, defending, sentencing, punishing and rehabilitating those
suspected and convicted of offences. Among its aims is to secure the
conviction of the guilty and acquittal of the innocent, the imposition of
fair and effective penalties upon those who are convicted, and, if
possible, the restoration of social harmony that has been disrupted by
the criminal activity.
2. A just outcome is not just a matter of fairness to the accused and the
victim. It is a matter of public importance. If the guilty are not
convicted, or the innocent are convicted, public confidence in the
system is likely to be undermined. Preventing impunity is an important
purpose of the system.
3. Apart from just deserts, the criminal justice system also plays a
restorative role. Restorative justice requires the participation of victims,
taking into account their views and, to the extent possible, addressing
the individual needs that arise when crimes are committed.
Compensation, restitution, and reconciliation are examples of
restorative processes undertaken in response to the needs of victims.
4. Criminal justice must not only be done but also be seen to be done. To
this end, there should be no actual or apparent bias on the part of the
judge, and the judiciary must be independent of the other arms of
government and of other interested parties. Judges must give reasons for
their decisions. And justice must be open, with hearings normally taking
place in public (unless there is good reason not to), and able to be
reported and commented upon.
5. The criminal justice system must operate within the Constitution. This
includes the principle of fair trial, a key focus of this book.

6. The Constitution goes further, and provides an entire framework,
particularly, but not only in the Bill of Rights1, for the correct behaviour
of state organs generally, including for the fair treatment of people, not
only in relation to the justice system.
II. The Constitutional Framework for State Organs
7. Many constitutional provisions govern the behaviour of state bodies in

the exercise of their authority. One important aspect that goes beyond
the scope of this book is the issue of integrity, especially the provisions
of Chapter Six. Issues of integrity that touch on criminal procedure
include the principle that all state officers (which includes judges and
magistrates) are required to exercise their authority in a manner that
‘demonstrates respect for the people’, ‘brings dignity to the office’ and
‘promotes public confidence in the integrity of the office’ (art. 73(1)(a)
(ii), (iii) & (iv), CoK).
8. Courts must protect and promote the purposes and principles of the
Constitution when exercising judicial authority (art. 159(2)(e), CoK).
This implies ensuring that other people and institutions comply with the
Constitution. The courts must also respect the Bill of Rights (which
means not doing any act that positively violates the rights (art. 21(1),
CoK)). Two fundamental rights are those of equality and dignity. They
are closely connected, but not identical.
III. Equality and Dignity
9. Courts must deliver justice to everyone who appears before them

irrespective of their status (art. 159(2)(a), CoK). All persons are equal
before the law, and courts must afford equal treatment to all who come
before them, in whatever capacity (art. 27(1), CoK). The Constitution
prohibits direct or indirect discrimination on any ground including race,
sex, pregnancy, marital status, health status, ethnic or social origin,
1 The application of the Bill of Rights is discussed in the relevant sections of the Bench Book.

colour, age, disability, religion, conscience, belief, culture, dress,
language and birth. Indirect discrimination means discrimination in
effect even if not intended.
10. Everyone has the right to have their dignity respected and protected (art.
28, CoK). Therefore, individuals in contact with the criminal justice
system should not be treated in a manner that demeans them. In addition
to this obligation to respect, the court also bears the obligation to protect
individuals from violation of their dignity by other actors in the criminal
justice system.
IV. Vulnerable and Disadvantaged Groups
11. Article 27 of the Constitution requires that positive efforts be made (that
is, affirmative action) to rectify past injustices and protect vulnerable
groups. The Constitution emphasizes the needs of vulnerable,
marginalised, or minority groups (who must, for example, be given the
assistance they need to participate in all spheres of life) (art. 56(a),
CoK). Persons with disabilities, for example, have the right ‘to
reasonable access to all places, public transport and information’(art.
54(1)(c), CoK). Courts should be conscious of issues such as whether
the facilities are accessible to the elderly and persons with disabilities.
Children have certain right s relevant to their treatment in court, which
are highlighted in relevant sections in this Bench Book. Overall the
determining factor in any matter concerning the child is the child’s best
interests (art. 53(2), CoK).
12. Another relevant provision is Article 21(3) of the Constitution, which

imposes a duty upon all state organs and public officers to ‘address the
needs of vulnerable groups within society, including women, older
members of society, persons with disabilities, children, youth, members
of minority or marginalised communities, and members of particular
ethnic, religious or cultural communities’. To address these

needs, however, one must first understand them. This Bench Book will
discuss how at least some of these needs are addressed through criminal
procedure.
V. Freedom from Torture, Cruel, Inhuman, and Degrading Treatment
13. The courts, with other state organs, bear the duty of ensuring that
everyone’s freedom from cruel, inhuman, or degrading treatment is
protected (arts. 29(f) & 51(3)(a), CoK; s. 5(1) Persons Deprived of
Liberty Act). There is a clear connection here to the right to silence,
specific to the rights of arrested and accused persons. Torture, which
can be used to extract not just confessions but evidence against someone
else, is forbidden and can never be constitutionally justified (art. 25,
CoK). The same is true of cruel, inhuman and degrading treatment in
court.
VI. Privacy
14. The rights to privacy include the right not to be searched, not to have
one’s home or property searched, not to have one’s possessions seized,
not to be required unnecessarily to provide information relating to one’s
family or private affairs, and not to have communications (letters, phone
calls, emails etc.) investigated. Most of these acts may be permitted by
law, but that law must satisfy the requirements of Article 24 of the
Constitution under which a limitation of the right to privacy can only be
justified after taking into account the purpose to be achieved, how
serious the interference with privacy is, whether the interference is
justified by the purpose, and whether the purpose could be achieved by
interfering less with privacy. Privacy might be relevant also to court
proceedings, such as unnecessarily intrusive questioning of a witness.

VII. The Constitution and the Judicial Process Generally
Independence of the Judiciary: The Institution and the Court
15. Every person has the right to have any dispute that can be determined by
law decided by either a court or an independent and impartial tribunal or
body (art. 50(1), CoK).The importance of independence, that is, of
being subject only to the Constitution and not subject to the direction of
any other person or authority, is emphasised in Article 160(1) of the
Constitution. Both the institution of the judiciary and the individual
judges and judicial officers must be independent of any extraneous
factors. Pressure, intimidation and influence from other sources,
whether political, financial, familial, ethnic, religious, or other must be
resisted.
Expeditious Trial
16. Having trials commenced and concluded within a reasonable time is in

the public interest, as well as that of the accused and victims, and the
Constitution includes the principle, ‘Justice shall not be delayed’ (art.
159(2)(b), CoK). The issue of speedy trial may come up at various
stages; it is however important to ensure that speed does not defeat the
accused’s right to prepare a defence.
Undue Regard for Technicalities
17. The Constitution provides that justice must be administered without

undue regard to procedural technicalities (art. 159(2)(d), CoK). Rules of
procedure facilitate the dispensation of justice and play a critical role in
maintaining the rule of law. They are therefore not redundant and ought
not to be disregarded except when following the procedures would
result in an injustice.

Transparency and Accountability
18. Transparency is a national value (art. 10(2)(c), CoK), and it is a general

principle that trials must be held in open court. In Kenya, this is
expressed as a right of the accused (art. 50(1), CoK). Public trials also
serve the public interest: they educate the public about the consequences
of crime and the legal system, and they aid accountability.
19. The requirement that courts must give reasons for their decisions is
important for transparency and accountability (s. 169(1), CPC).
Promotion of Alternative Forms of Dispute Resolution
20. The emphasis in criminal justice is shifting somewhat towards

restorative justice: an approach that focuses more on addressing the
harm caused by crimes rather than punishing the offender. The emphasis
on the rights of victims provides an example of how the Constitution
has incorporated values of restorative justice; the Constitution requires
Parliament to enact legislation ‘providing for the protection, rights and
welfare of victims of offences’ (art. 50(9), CoK), which has been
enacted in the form of the Victim Protection Act, 2014 (Cap. 17 of
2014).
21. The Constitution places particular emphasis on the facilitation of

‘alternative forms of dispute resolution (ADR) which include
reconciliation, mediation, arbitration and traditional dispute resolution
mechanisms’ (art. 159(2)(c), CoK). This is also an aspect of the shift
towards restorative justice. The emphasis on ADR applies to both
criminal law as well as civil law. The existing law contemplates the use
of ADR in criminal proceedings, including plea agreements (s.
137A(2),CPC), withdrawal (s. 204,CPC), reconciliation (s. 176, CPC),
and sentencing.1
1 ADR is briefly considered when these various proceedings are discussed in Chapter Three
paras. 36-37.
Statutes may limit the scope of certain provisions that open the way to
ADR (for example, promotion of reconciliation under s. 176 of the CPC
does not extend to felonies).1
22. The Victim Protection Act provides that participation in ADR must be
voluntary on the part of both offender and victim (s. 15(2(a) & (b),
Victim Protection Act).2 The results of the ADR process, if they involve
any agreement for redress, are incorporated in the court’s judgment and
are enforceable (s. 15(3), Victim Protection Act).3 Finally, if the ADR
process fails, the criminal trial proceeds to final determination (s. 15(2)
(c),Victim Protection Act).
23. The ADR mechanism must adhere to the Bill of Rights; it must not be
repugnant to justice and morality; it must not be inconsistent with any
written law (art. 159(3)(a), CoK). This might bring in issues of dignity,
cruel and inhuman treatment, and freedom of expression.
1 In the absence of specific rules governing ADR mechanisms in criminal cases, decisions to
invoke ADR mechanisms may be challenged for being incompatible with fundamental
principles of criminal law. For instance, the decision in R v Leraas Lenchura High Court at
Nakuru Criminal Case 19 of 2011in which the court ordered compensation of one camel and
a suspended sentence of five years for manslaughter raises concerns as to whether ADR
should be invoked in cases involving serious offences such as manslaughter. Emerging
jurisprudencefromthecourtssuggeststhatcourtsdecidingcriminalcaseshavebeenreluctant to
adopt ADR mechanisms, particularly with regard to felonies. This reluctance is pegged
upon the premise that legal procedures have been developed for specific reasons, such as
protecting the rights of the accused and ensuring equal protection of everyone including
victims. ADR mechanisms do not always offer similar protection. Further, ADR
mechanisms must be applied in a manner that does not undermine constitutional provisions.
In R v Abdulahi Noor Mohamed (alias Arab)High Court at Nairobi Criminal Case No. 90 of
2013 thecourtrejectedanapplicationseekingthewithdrawalofmurderchargesforacasethatwas
pending judgment after the families of the victim and the accused had reconciled. The court
noted that criminal trials are matters of public interest instituted in the name of the State.
Therefore, arrangements between the accused person and the victim to withdraw the charges
to the exclusion of the prosecution are inconsistent with constitutional provisions bestowing
prosecutorial powers on the Director of Public Prosecutions.
2 Seepara.7,UN Economic and Social Council (ECOSOC),UN Economic and Social Council
Resolution 2002/12: Basic Principles on the Use of Restorative Justice Programmes in
Criminal Matters, 24 July 2002.
3 See also para. 15, UN Economic and Social Council (ECOSOC), UN Economic and Social
CouncilResolution2002/12:BasicPrinciplesontheUseofRestorativeJusticeProgrammes in
Criminal Matters, 24 July 2002.

Cruel and inhuman treatment incorporates issues of proportionality
which are addressed in the Sentencing Policy Guidelines 2016(para. 3.1
of which states that sentencing should be neither excessively harsh nor
excessively lenient). Most obviously the right to equality, age, gender,
disability and status of an offender, must be respected, unless there is a
need to take account of such factors, and Article 24 is satisfied. Courts
must exercise caution when authorising ADR mechanisms in criminal
cases to ensure that they are compatible with any other provision of the
Constitution and fundamental principles of criminal justice, including
fair trial, proportionality, and equality.
VIII. Constitutional Rights Related to the Criminal Process
24. The Constitution sets out the rights of persons from arrest through
custody, trial, and beyond. Courts have a duty to observe, respect,
protect, promote, and fulfil these rights in the exercise of their authority.
The duty to respect requires the court to refrain from violating rights in
carrying out its duties. The court must also ensure that others, for
instance, the police and the prosecution, from violating rights. The duty
to promote these rights requires the court to encourage and educate
others on how best to observe them.
25. This section provides an overview of the rights which are then
discussed in more detail in the substantive chapters where they apply.
IX. Rights of an Arrested Person
26. The rights of an arrested person reflect the fundamental principles that a
person is innocent until proved guilty and that a person has a right to
dignity. There is a corresponding obligation on the police and the court
to ensure that these rights are respected.

Right to Information
27. Under Article 49 of the Constitution, a person arrested must be

informed ‘promptly’ of the reason for the arrest (art. 49(1)(a), CoK).
The information must be conveyed in language that the arrested person
understands. This implies both speaking in a language that the person is
conversant in as well using ordinary terms that a layperson can
understand.
Right to Remain Silent
28. An arrested person has no obligation to provide information to the

police (art. 49(1)(b), CoK). And when arrested, he or she must be
informed of the right to remain silent and the consequences of not
remaining silent.
Right to an Advocate and Communication with Others
29. Under the Constitution, the arrested person has the right to
communicate with an advocate and other persons whose assistance is
necessary (art. 49(1)(c), CoK). The Persons Deprived of Liberty Act
goes further and provides that anyone deprived of liberty has the right to
communicate with ‘any person of his or her choice’—not just those
whose assistance is useful (s. 8(1), Persons Deprived of Liberty Act).
Right not to be Compelled to Make a Confession or Admission
30. An arrested person must not be compelled to make a confession or

admission that could be used in evidence against the person (art. 49(1)
(d), CoK).This right is related to the privilege against self-incrimination.
Right to be Separated from Convicted Prisoners
31. Anyone arrested must be held separately from convicted persons

pending trial (art. 49(1)(e), CoK). This recognizes the right to innocence
until proven guilty, avoids stigmatisation of the accused, recognizes that
regimens for convicted prisoners are, or should be, different from those
for the accused, and avoids the corruption of the accused by possibly
hardened criminals. The Persons Deprived of Liberty Act expands the
rules about separate accommodation to say that women, men, intersex
individuals (those with both male and female reproductive organs),
refugees, and children should be held separately from one another (s.12,
Persons Deprived of Liberty Act).
32. The Persons Deprived of Liberty Act sets out a number of other
requirements for the conditions in which persons may be detained. For
example, detention facilities must be humane, hygienic, and include
medical services and decent food (in fulfilment of art. 51(3), CoK).
Right to Appear in Court within Twenty-Four Hours
33. A person arrested must be brought before a court not later than twenty-
four hours after arrest. If the twenty-four hours end outside the ordinary
court hours, or on a day that is not an ordinary court day, the accused
person must be presented to the court by the end of the next court day
(art. 49(1)(f), CoK). During that first court appearance, the accused
person must be charged or informed of the reason for the detention
continuing, or be released (art. 49(1)(g), CoK).
Right to Bail
34. Article 49(1)(h) of the Constitution guarantees the right of an arrested

person to be released on bond or bail, on reasonable conditions, pending
a charge or trial, unless there are compelling reasons for the person not
to be released.

35. Some people should not be detained in custody at all—for example, if
the offence for which a person is arrested is punishable by a fine only or
by imprisonment for not more than six months (art. 49(2), CoK).
Children should be detained only as a last resort. Persons accused of
minor traffic offences ought not to be detained.1
X. Rights of an Accused Person
36. Article 50(2) of the Constitution sets out the main requirements of the
right to a fair trial in criminal cases. The list is not exhaustive: a fair trial
‘includes’ these elements. Article 25 states that there can be no
limitation on this right.
Right to be Presumed Innocent2
37. An accused person is considered innocent until proved guilty (art. 50(2)
(a), CoK), and the burden of proving guilt lies on the prosecution.
Rights Connected with Preparation of Defence
38. Several rights are particularly connected to the need for the accused
person to be able to prepare his or her defence. Firstly, accused persons
have the right to be informed of the charge with sufficient detail to
answer it (art. 50(2)(b) & (c), CoK).3 This, and any other information
required to be provided, must be conveyed in a language and in terms
that are understood by the accused person. It must also be in a format
that is accessible to the accused such as braille or sign language.
Secondly, the accused person must be accorded enough time and
facilities to prepare a defence (art. 50(2)(c), CoK).4
1 ‘Guidelines on Handling of Traffic Matters’ issued by the Judiciary, the National Council
on the Administration of Justice and the National Police Service.
2 See Chapter Four, paras.6-8.
3 See Chapter Two, paras. 62-63, Chapter Three, paras.42
4 See Chapter Three, paras. 44 &162.

Right to Public Trial1
39. The accused has the right to a trial held in public (art.50(2)(d), CoK;
s. 77(1), CPC). However, the press or the public may be excluded, if it
is necessary, in a free and democratic society, to protect witnesses or
vulnerable persons, morality, public order, or national security (art.
50(8), CoK).
Right to an Expeditious Trial2
40. An accused person has the right to have the trial concluded without
unreasonable delay (art. 50(2)(e), CoK).
Right to be Present3
41. The accused person has a right to be present during trial, unless the
accused person’s own conduct makes it impossible for the trial to
proceed (art. 50(2)(f), CoK).
Right to an Advocate4
42. There are two aspects to the right to be represented by an advocate. The
first is the right to have one’s own advocate, that is, not at public
expense (art. 50(2)(g), CoK).
43. Additionally, there is a right to have an advocate assigned by the State

and at the State expense, if ‘substantial injustice’ would otherwise
result. The accused must be informed of this right promptly (, CoK). In
the case of a child, the court must order that the child be granted legal
representation (s. 43(3), Legal Aid Act).
1 See Chapter Three, paras.1-3.

2 See Chapter Three, paras. 15-19 &23.
4 See Chapter Two, paras.46-54.

44. How far a court should go in assisting an accused who remains
unrepresented is a matter of judgment for the court in the circumstances.
Right to Remain Silent1
45. Like an arrested person, the accused person has the right to remain
silent. This means that the person may decide not to testify at all during
the proceedings (art. 50(2)(i), CoK; s. 186(d) Children Act, 2001), or
may decline to answer specific questions because they may incriminate
the person (art. 50(2)(l) CoK).
Rights to Evidence
46. Related to the right to be informed of the charge is the right to be

informed in advance of the evidence that the prosecution intends to rely
on (art. 50(2)(j), CoK). The evidence should be provided within
reasonable time to enable the accused to prepare the defence.2
47. The accused has the right to challenge any evidence that has been
presented against him or her (art. 50(2)(k), CoK). This implies that the
accused is at liberty to cross examine any prosecution witness.3
48. Finally, an accused person has the right to present evidence in defence
(art. 50(2)(k), CoK).
Right not to Incriminate Oneself4
49. The accused person has the right to refuse to give self-incriminating
evidence (art. 50(2)(l) CoK). This right resonates with the presumption
of innocence and the prosecutor’s duty to prove guilt beyond reasonable
doubt.

4 See Chapter Three, paras. 120, 142 &159.

Right to an Interpreter 1
50. The accused person has a right to an interpreter if the trial proceedings
are held in a language that he or she does not understand (art. 50(2)(m),
CoK; s. 198(1), CPC; s. 186(e), Children Act).The right to an interpreter
includes both language and sign interpretation. This right applies even if
the accused person’s advocate understands the language of the court.
51. If evidence is given in a language that is not understood by the

advocate, it must be interpreted in English (s. 198(2), CPC).
The Principle of Legality 2
52. The Constitution provides that a person should not be convicted for an
act or omission that was an offence neither under Kenyan nor
international law at the time it was committed or sentenced to
punishment that was not provided for when the offence was committed
(art. 50(2)(n), CoK). An accused may, however, be convicted of an
offence that was crime under international law, even if not under
Kenyan law.
Right to Protection from Double Jeopardy 3
53. An accused person may not be convicted ‘in respect of an act or

omission for which the accused person has previously been either
acquitted or convicted’ (art. 50(2)(o), CoK). The provision does not say
the conviction must be of the same offence, but for the same act or
omission. But if the first trial was aborted and the accused discharged
but not acquitted, a later charge on the same facts could be brought.
1 See Chapter Two, Paras.57-61.

2 See Chapter Four, paras.29.
3 See Chapter Two, paras.91-93.

Right to the Least Severe Punishment
54. Where the sentence for an offence has been changed between the
commission of the offence and the time of sentence, the accused is
entitled to the lesser sentence (art. 50(2)(p), CoK).
Right to Court Records
55. During the trial, an accused person is entitled to a copy of the records of
the court proceedings on request. This right does not extend to persons
charged with an offence that the court may try by summary procedures
(art. 50(5)(a), CoK).
XI. Rights of a Convicted Person
Right to Court Records
56. When the trial is concluded, any accused person has the right to obtain a
copy of the court proceedings within a reasonable time for a reasonable
fee prescribed by law (art. 50(5)(b), CoK).
Right to Appeal or Review
57. The Constitution provides various rights of persons who have been
convicted and are dissatisfied with the conviction or sentence. A
convicted person has the right to appeal or apply for review by a higher
court (art. 50(2)(q), CoK). The word ‘review’ may mean either the
review or revision procedures provided by ss. 362-367 of the CPC or
judicial review.1
1 See Chapter Five, paras.53-60.

Right to Apply for a New Trial
58. The Constitution further provides the right to apply for a new trial
where new and compelling evidence has become available, either after a
convicted person has exhausted the right of appeal or did not appeal
within the stipulated time (art. 50(6)(a) & (b), CoK).1

CHAPTER TWO:
PRELIMINARY ISSUES

I. Jurisdiction of Courts in Criminal Matters
Magistrates’ Courts
1. The jurisdiction of Magistrates’ Courts is conferred by the CPC, and the

Magistrates’ Courts Act (s. 6, Magistrates’ Courts Act). In practice, all
crimes are heard by the Magistrates’ Court in the first instance (see
para. 4, below) with the exception of a few offences reserved for the
High Court by law, namely murder, treason, genocide, war crimes, and
crimes against humanity.
2. The fifth column of the First Schedule of the CPC sets out the different
grades of the Magistrates’ Court in which a particular offence created by
the Penal Code (PC) is to be heard (s. 4, CPC). Further, section 7 of the
CPC sets the limits of pecuniary jurisdiction and terms of imprisonment
that may be imposed by different grades of the Magistrates’ Courts.
There are other statutes which give criminal jurisdiction to Magistrates’
Courts for offences under those statutes. These include the Contempt of
Court Act, Children Act, Sexual Offences Act, Anti-Corruption and
Economic Crimes Act, and the Traffic Act. Where a statute creates
offences and does not specify the court that has jurisdiction to try those
offences, the High Court or a subordinate court of the first class, that is,
one presided over by a Chief Magistrate, a Senior Principal Magistrate,
a Principal Magistrate, or a Senior Resident Magistrate, may try the
offence (s. 5(2), CPC; Attorney-General v Mohamud Hashi & Nine
Others Court of Appeal at Nairobi No. 113 of 2011).
3. Additionally, Magistrates’ Courts have limited jurisdiction to hear and

determine claims of denial, violation or infringement of, or threat to the
right to freedom from torture and cruel, inhuman or degrading treatment
or punishment, and to freedom from slavery or servitude (s. 8(1),
Magistrates’ Courts Act; Art. 23(2), CoK). Such claims may arise in the
criminal trial process. The court may make a declaratory order or issue

an injunction or make a conservatory order (Art. 23(3), CoK). In the
case of the magistrates’ courts, this jurisdiction does not extend to
hearing and determining claims for compensation for loss or damage
suffered as a result of a violation, infringement or denial of a right or
fundamental freedom in the Bill of Rights (s. 8(3), Magistrates’ Courts
Act).
The High Court
4. The High Court has both unlimited original and appellate jurisdiction in
criminal matters (art. 165(3)(a), CoK). In practice, however, the High
Court rarely exercises its original jurisdiction to hear cases that may go
before a Magistrate Court. Instead, the original jurisdiction of the High
Court is reserved for offences that are triable only by the High Court
such as murder, treason, war crimes, genocide and crimes against
humanity (s. 8(2), International Crimes Act). Further, the court has
jurisdiction to hear allegations of human rights violations arising from
criminal cases in subordinate courts (Art. 165(3)(b), CoK).
5. As an appellate court, the High Court has jurisdiction to hear appeals

from subordinate courts (s. 347(2), CPC).1 The High Court exercises
supervisory jurisdiction over the subordinate courts and over any
person, body or authority exercising a judicial or quasi-judicial function
(art. 165(6), CoK). This supervisory jurisdiction may be exercised
through either judicial review or revision (art. 165(7), CoK; s. 362,
CPC) but not over a superior court (art. 165(6), CoK).2 The High Court
also has jurisdiction to hear applications in the nature of habeas corpus
(Art. 51(2) CoK; s. 389 CPC, r.3, Criminal Procedure (Directions in the
Nature of Habeas Corpus)(Rules)).3

3 See Chapter Six, paras.14-21.
6. The Supreme Court in R v Karisa Chengo & 2 Others (Petition No. 5 of
2015) held that the Environment and Land Court and the Employment
and Labour Relations Courts cannot hear criminal matters. The court
reasoned that, although they have the same ‘status’ as the High Court,
according to the Constitution, Article 162, these are different and
autonomous courts and have distinct jurisdictions that do not include
criminal matters (paras.50-52).
The Court of Appeal
7. In criminal matters, the Court of Appeal has jurisdiction to hear appeals

from the High Court (Art. 164(3), CoK).1 It has original jurisdiction in
any case of contempt in the face of the court (ss. 35(2)(a-c),(4)&(6),
Court of Appeal (Organisation and Administration); s. 5, Contempt of
Court Act). The courts below are bound by the decisions of the Court of
Appeal (Nisha Sapra v Attorney-General High Court at Nairobi Petition
No.291 of 2011;National Bank of Kenya Ltd v Wilson Ndolo Ayah
Court of Appeal Civil Appeal No.119 of 2002; Mwai Kibaki v Daniel
Toroitich Arap Moi Court of Appeal at Nairobi Civil Appeal No. 172 of
1999).
8. Decisions of the higher courts (on the issues of law necessary to the
decision) bind the lower courts and their subsequent decisions (Jasbir
Singh Rai & 3 Others v Tarlochan Singh Rai Estate of & 4 Others
Supreme Court Petition No. 4 of 2012; Joseph Njuguna Mwaura & 2
Others v R Court of Appeal at Nairobi Criminal Appeal No. 5 of 2008).
The higher courts, in this case the Court of Appeal, may however depart
from an earlier decision that was reached per incuriam (in ignorance of
a binding statute or precedent) (Jasbir Singh Rai; Joseph Njuguna
Mwaura).

The Supreme Court of Kenya
9. The Supreme Court has jurisdiction to hear and determine appeals from
the Court of Appeal or any other court or tribunal as prescribed by
national legislation (Arts.163(3)(b) & 163(4), CoK; s.16(2)(a), Supreme
Court Act)1 and exclusive original jurisdiction to hear and determine
disputes relating to the elections of the President (Art. 163(3)(a), CoK).
10. It also has jurisdiction to give advisory opinions, when requested to do

so by the national government, any State organ, or any county
government, on matters relating to county government (Art. 163(6),
CoK).
11. All courts, other than the Supreme Court, are bound by the decisions of
the Supreme Court (Art. 163(7), CoK; Jasbir Singh Rai & 3 Others v
Tarlochan Singh Rai Estate of & 4 Others Supreme Court Petition No. 4
of 2012).
II. Jurisdiction
12. Kenyan courts have jurisdiction over any criminal act that is done
within its borders (s. 5, CPC). Any acts that may have occurred partly
within Kenyan jurisdiction and partly outside of it are treated as
offences under Kenyan law for which the courts have jurisdiction (s. 6,
CPC). The jurisdiction of the courts extends to trying offences
committed on the high seas (Attorney-General v Mohamud Hashi &
Nine Others Court of Appeal No. 113 of 2011).
13. Ordinarily, an offence is tried within the local jurisdiction in which it

occurred (s. 71, CPC). If it is not clear where an offence occurred or the
offence occurred in more than one area, the offence may be tried by any
court having jurisdiction over one of those areas (s. 74, CPC).
1 See Chapter Five, paras.45-47

14. Any finding, sentence, or order of a criminal court may not be set aside
merely because it took place in the wrong jurisdiction unless it is clear
such an error prejudiced the accused (Paul Kimani v R Court of Appeal
at Nairobi Criminal Appeal No. 172 of 2013; s. 380,CPC).
III. Transfer of Cases
Transfer of Cases between Magistrates
15. A subordinate court may transfer a case to another subordinate court

when the complaint arose outside the limits of its jurisdiction (s. 78(1),
CPC).
Transfer of Cases by the High Court
16. The High Court, on its own motion or on the application of any party,
may order the transfer of a case to any competent subordinate court or
for trial by the High Court itself (s. 81, CPC). The High Court may
order transfer of cases in any of the following situations:
i) Where a fair and impartial criminal trial cannot be held in a
subordinate court (s. 81(1)(a), CPC).
ii) Where some question of law of unusual difficulty is likely to arise
(s. 81(1)(b), CPC).
iii) Where it may be necessary to view the place in which or near
which the offence took place (s. 81(1)(c), CPC).
iv) Where an order of transfer would be for the general convenience
of the parties or witnesses (s. 81(1)(d), CPC).
v) Where an order of transfer is expedient for the ends of justice (s.
81(1)(e), CPC).

IV. Procedures before Presentation in Court (Pre-arraignment)
Arrest
17. An arrested person must be presented before the court as soon as

reasonably possible, but not later than twenty-four hours after being
arrested, unless the twenty-four hours end outside ordinary court hours
or on a day that is not an ordinary court day (Art. 49(1)(f)). The phrase
‘brought before the court as soon as reasonably possible’ requires the
court to take into account the circumstances in each case. For instance, a
person arrested on Friday morning ought to be presented to the court
before the end of the day, and the court should seek an explanation from
officers for any delay. The continued detention before charging an
accused must be sanctioned by the court (s. 36A, CPC), and any
extension must be sought before the expiry of the twenty-four hour
period (36A(8), CPC; Milen Halefom Mezgebo v Attorney-General & 2
Others High Court at Nairobi Petition 205 of 2011). The accused should
be charged on this first court appearance, be informed of the reason for
the continued detention, or be released (Art. 49(1)(g), CoK).
18. The phrase ‘brought before the court as soon as reasonably possible’
also implies that the time limits for presentment and continued detention
are ‘outerlimits’andtheprosecutionhasadutytosatisfytheserequirements at
the earliest possible time. Lucas Omoto Wamari v Attorney-General &
Another (High Court at Nairobi Petition No. 294 of 2012), held that,
under the former constitution, the prosecution had a duty to take the
arrested person to court as soon as was reasonably practicable and not at
the last possible moment. It is presumed that the Wamari holding is still
applicable under the 2010 Constitution.
19. If the right to appear before the court under Articles 49(1)(f) and
(g) is violated, an accused has a right to seek a remedy, including
compensation (Art. 22(1), 23(3)(e), CoK). In Fappyton Mutuku Ngui v

R (Court of Appeal at Nairobi Criminal Appeal No. 32 of 2013), the
court, dismissing the appeal, stated that the violation of this right did not
automatically entitle the accused to an acquittal or discharge. Instead,
where it is established that there was a violation, a remedy in damages
may be sought. Delaying an accused’s appearance before court may,
however, merit dismissal, such as when the delay resulted in the
violation of other Constitutional rights or otherwise inhibited an
accused’s ability to present a defence.
Detention Beyond Twenty-Four Hours
20. Section 36A of the CPC and section 33 of the Prevention of Terrorism
Act allow police officers to detain suspects beyond the twenty-four-hour
limit, but only with leave of the court. To obtain leave, police officers
must take the accused to court and make an application for an extension
of time by affidavit, which must demonstrate that there are reasonable
grounds for the continued detention of the suspect. If the court makes an
order for the suspect to remain in custody, the period must not extend
beyond thirty days (s. 36A (8), CPC; s. 33(9), Prevention of Terrorism
Act). With respect to terrorism cases, the total period of detention must
not exceed three hundred and sixty (360) days (s. 33(10), Prevention of
Terrorism Act). Under the CPC, the total period must not exceed ninety
(90) days (s. 36A(10), CPC).
Children in Custody
21. A child’s best interests are of paramount importance in every matter

concerning the child (Art. 53(2), CoK). In line with Article 49(1)(f) of
the Constitution and rule 4(1) of the Child Offenders Rules, Schedule 5
of the Children Act (‘Child Offenders Rules’), a child should not be
held for more than twenty four hours without leave of the court (DMO
& Another v R High Court at Nairobi High Court Petition No. 397 of
2012).

Further, in compliance with Article 53(1)(f) of the Constitution, a child
should not be detained unless there are compelling reasons for the
detention and only ‘as a measure of last resort’. Any detention must be
for the shortest period of time possible (art. 53(1)(f), CoK; CMK v R
High Court at Kisii Criminal Appeal No. 27 of 2013).
22. If a child has been held in police custody, the court must ensure that the
parents or guardians of the child and the Department of Children’s
Services have been informed (r. 4(2), Child Offenders Rules).
23. When dealing with children who have been detained, the court should
enquire about the conditions of detention. The court should be satisfied
that the children are held separately from adults in conditions that take
into account the children’s age and gender (Art. 53(1)(f)(ii), CoK; Child
Offenders Rules, r. 6; s. 18(3), Children Act).
Persons with Disabilities
24. Disability is defined under the Constitution as including ‘any physical,

sensory, mental, psychological or other impairment, condition or illness
that has, or is perceived by significant sectors of the community to have,
a substantial or long-term effect on an individual’s ability to carry out
ordinary day-to-day activities’ (art. 260, CoK).
25. When dealing with persons with disabilities, the court must adhere to
the principle of reasonable accommodation (arts. 7(3)(b), 21(3), 27(4),
54(1), CoK). This means making reasonable adjustments to ensure that
individuals with disability can be accommodated physically and in other
ways. The court should take into account the conditions of the holding
facilities and ensure that, in view of the accused’s disability, committal
to the facilities would not amount to inhuman and degrading treatment.

Charge Sheet and Information
26. A trial is commenced by filing a charge sheet in the subordinate courts

or information in the High Court, which sets out the allegations against
an arrested person.
27. The charge or information must contain a statement of the specific

offence(s) with which the accused is charged and enough information to
demonstrate the nature of the offence charged (s. 134, CPC; Ibrahim v
R [1984] KLR 596). The information should cite the correct section of
the law under which the accused is charged (s. 137(a)(ii),CPC).
28. The framing of a charge or information should adhere to the rules set
out in section 137 of the CPC. However, defects in the framing of a
charge or information do not automatically vitiate the proceedings.
Under section 382 of the CPC, the primary consideration is whether the
defect occasioned a failure of justice. In John Irungu v R (Court of
Appeal at Mombasa Criminal Appeal No. 20 of 2016), the Court of
Appeal held that failure to refer to the section of the Act upon which a
charge was based did not prejudice the accused because the particulars
of the offence were clearly stated.
Joinder of Counts
29. Offences may be charged together in the same charge or information if

the offences charged are founded on the same facts, or form or are part
of a series of offences of the same or a similar character (s. 135(1),
CPC).
30. Where the accused is charged with more than one offence, the offences
can be joined even if they do not arise from the same acts or form part
of the same transaction so long as there is sufficient nexus[connection]
between them. A sufficient nexus exists if the evidence of one offence is
admissible in the trial of the other or where two or more offences
exhibit similar features that they could conveniently be tried together in

the interests of justice. For example, in Evans Kalo Callos v R (Court of
Appeal at Nairobi Criminal Appeal No. 360 of 2012) the court held that
there was sufficient nexus between a charge of robbery with violence
and a charge of possession of a firearm and ammunition without a
firearm certificate to try offences together. The court held that both the
offences, though committed at different times, were of similar character
as envisaged by section 135(1) of the CPC because they both involved
the possession and use of a firearm. Further, the joinder did not appear
to prejudice the accused.
31. Where the court is of the opinion that being charged with more than one
offence in a single charge or information may prejudice the accused, the
court may order separate trial of any count or counts relating to that
offence (ss. 135(3)&275(4), CPC; Hamisi Mungale Burehe v R Court of
Appeal at Mombasa Criminal Appeal No. 37 of2013).
32. The Court of Appeal in Peter Ochieng v R(Court of Appeal at Kisumu

CriminalAppealNo.10of1985) held that, typically, a charge sheet should
not contain more than twelve counts. The court held that where a charge
sheet has more than 12 counts, the excess counts may be withdrawn
under section 87(a) of the CPC, which would entitle the prosecution to
bring them again if necessary. In such a case, at the beginning of the
trial the court should ask the prosecution to elect the counts upon which
it wishes to proceed. The court in Richard Lenguro Ramacha & 2
Others v R (High Court at Nakuru Criminal Appeal No. 30 of 2010),
held that having 17 counts on a charge sheet would be overloading the
charge sheet. Courts show concern that including many counts may lead
to complex and protracted trials, and may also prejudice the accused,
presumably by imposing a heavy task in preparing the defence.

33. Where a charge sheet or information contains more than one count, the
counts should be set out in separate paragraphs and numbered
consecutively (s. 135(2), CPC). Where a charge sheet has an alternative
charge, the alternative charge should be so described and laid
immediately after the count.
Multiple Capital Charges and/or Capital Charges Together with Non-

Capital Charges
34. Although a person may be charged with several capital charges, it has
been held to be good practice to proceed with one of the charges at a
time and leave the others in abeyance (Brown Tunje Ndago & Another
v R Court of Appeal at Mombasa Criminal Appeal No. 249 of 2011;
Okwaro Wanjala v R Court of Appeal at Nairobi Criminal Appeal No.
55 of 1978,(1979) KLR 46; Stephen Muiruri and 2 Others v R Court of
Appeal at Nairobi Criminal Appeal No. 47 of 1979 (1980) KLR 70).
When deciding whether to join separate charges, the overriding
consideration is whether the joinder would prejudice the accused. In
Brown Tunje Ndago & Another v R, the court held that proceeding with
all the capital charges had not prejudiced the appellants.
35. Where a person is charged with a capital offence and non-capital

offences, the court may proceed with the capital charge and hold the
non-capital charges in abeyance (Hamisi Mungale Burehe v R (Court of
Appeal at Mombasa Criminal Appeal No. 37 of2013).
Joinder of Accused Persons
36. Two or more accused persons can be charged jointly in any of the
instances listed in section 136 of the CPC. Those are:
i) persons accused of the same offence committed in the course of
the same transaction;

ii) persons accused of an offence and persons accused of abetting or
attempting to commit that offence;
iii) persons accused of offences that incur the same punishment
under the same section of the Penal Code or any other law that
they had committed jointly within a period of twelvemonths;
iv) persons accused of different offences committed in the course of
the same transaction;
v) persons accused of an offence under Chapters XXVI to XXX of
the Penal Code, of aiding or abetting an offence under these
Chapters, or receiving or retaining stolen property;
vi) persons accused of an offence relating to counterfeit coin under
Chapter XXXVI of the Penal Code, persons accused of a related
counterfeit offence, or persons accused of attempting abetting the
counterfeit offence.
37. Where two or more accused persons are charged together, the court has
discretion as to whether to have joint or separate trials. In exercising this
discretion, the court should balance the disadvantages, inconvenience,
and expense of separate proceedings against the likelihood of prejudice
to any of the accused persons(Dusara & Another v R Court of Appeal at
Nairobi Criminal Appeal No. 59 of1980).
38. In Malebe v R(High Court at Nairobi Criminal Appeal No. 546, 547 and
548 of 1982), three accused persons were charged under a joint charge
sheet with separate offences allegedly committed on different dates. The
court held that the charge sheet was defective because the accused
persons did not know which charges were filed against them jointly and
which separately and did not know when each offence was alleged to
have been committed. These defects prejudiced the accused persons.
The court held that there should have been a separate charge for each
person and separate count for each alleged offence committed on a
different date.

39. When a joint trial causes undue delay because the different parties file
continued applications for adjournments, the court may consider having
separate trials.1
Objection against a Charge or Information
40. If an objection is raised against the charge (in the lower courts) or
information (in the High Court) before plea, the court must deal with the
objection before the accused is called upon to plead (s. 275(1), CPC).
For instance, an accused may object to a charge on the basis of double
jeopardy. An objection may also be raised on the ground that the charge
sheet or information as framed does not disclose an offence in law(ESL
v R High Court at Kakamega Criminal Appeal No. 316 of 2012).
Should the need arise, the court may extend the summons and, in
appropriate cases, release the accused on bail pending the determination
of the objection. If the objection is dismissed, the accused will be
required to enter a plea.
41. Courts should not pay undue regard to technicalities if substantive

justice would be undermined. For instance in Isaac Nyoro Kimita v R
(Court of Appeal at Nairobi Criminal Appeal No. 187 of 2009) the court
declined to hold that a defective charge rendered the trial
unconstitutional where several accused had been accused of ‘jointly’
defiling a girl. This charge was defective, because such an offence was
impossible, but the accused had not been disadvantaged.
Amendments and Substitution of the Charge
42. The court may order that a charge be altered at any time before the close
of the prosecution’s case if it is of the view that the charge is defective
in form or substance (s. 214,CPC).
1 See Chapter Two, para.37.

With respect to an information (before the High Court), the court is
obligated to make an order for the amendment of an information if a
defect comes to its attention, unless such an amendment would result in
an injustice (s. 275(2), CPC). If an information is amended, a note of the
order of the amendment must be endorsed on the information.
43. If the charge is changed or substituted, the accused must be called upon
to plead to the altered or substituted charge or information (s. 214(1)(i),
CPC). The court has a duty, in all cases, to inform the accused of the
right to answer to a substituted charge and to cross-examine witnesses
who had already testified (Joseph Kamau Gichuki v R Court of Appeal
at Nairobi Criminal Appeal No. 523 of 2010). However, the failure to
answer to the fresh charges does not automatically vitiate the
proceedings. The primary consideration is whether the accused was
prejudiced by the failure to enter a new plea. In Benjamin Kariuki
Wairimu v R (Court of Appeal at Nairobi Criminal Appeal No. 217 of
2008), for example, the court found that the failure to enter a new plea
when the charge sheet was amended from a charge of simple robbery to
aggravated robbery did not prejudiced the accused. The court noted that
the amendment had been done before the hearing and the failure to
plead did not occasion an injustice.
44. When the charge is changed, amended, or substituted, the court should
allow the accused, if he or she so wishes, to recall and re-examine
witnesses (Samuel Kilonzo Musau v R Court of Appeal at Nairobi
Criminal Appeal No. 153 of 2013). The court must not only comply
with the above conditions, but must also record that it has complied
(Jason Akumu Yongo v R Court of Appeal at Nairobi Criminal Appeal
No. 1 of 1983). Courts must not order an amendment to the charge sheet
or information if it will occasion an injustice (s.275,CPC;JasonAkumu
Yongo v R Court of Appeal at Nairobi Criminal Appeal No. 1 of1983).

45. If there is a discrepancy between the charge sheet and the evidence
submitted about when an offence was committed, that discrepancy does
not invalidate the charge, and the charge sheet need not be amended (s.
214(2), CPC). Obedi Kilonzo Kevevo v R (Court of Appeal Criminal
Appeal at Nairobi No. 77 of 2015), for example, held that the fact that
the charge sheet indicated that the offence occurred a month before the
date established by the evidence did not prejudice the appellant and was
curable under sections 275(2) and 382 of the CPC. Similarly, in Peter
Ngure Mwangi v R(Court of Appeal at Nairobi Criminal Appeal No. 44
of 2010), a typographical error in the name of the complainant was held
not to prejudice the appellant and was curable.
V. First Court Appearance
Legal Assistance
46. On the first appearance, the court must promptly inform the accused of
the right to employ legal assistance (Art. 50(2)(g), CoK; s. 43(1)(a),
Legal Aid Act (LAA); Felix Mwova Vaasya v R Misc Crim Application
No. 48of 2016). The court should then record whether the accused will
be represented by a lawyer or will be unrepresented.
47. If the accused is unable to hire a lawyer and substantial injustice would
occur if the accused is unrepresented, the accused has the right to have
an advocate assigned by the state at State expense (art. 50(2)(h), CoK).
Section 43(1)(b) and (c) of the LAA directs that where substantial
injustice is likely to result, the court must inform the accused of the
right to legal aid and inform the National Legal Aid Service that it must
provide legal aid. The language of the Act (‘likely to occur’) is both
more realistic and more generous to accused persons.
48. In determining whether substantial injustice would result, the court must
consider the following factors:

i) The severity of the charge and sentence;
ii) The complexity of the case; and
iii) The capacity of the accused to defend themselves (s. 43(1A),
LAA).
49. In addition to these factors, the Supreme Court has held that the court
should consider the literacy of the accused and whether the accused is a
minor1 (R v Karisa Chengo & 2 Others Supreme Court Petition No. 5
of2015).
50. Both the Constitution and the law require that a person charged with a
capital offence be provided with an advocate at State expense. In David
Njoroge Macharia v R (CourtofAppealatNairobiCriminalAppealNo.497
of 2007) the Court of Appeal held that substantial injustice would result
if a person charged with a capital offence was unable to afford legal
representation. In addition, section 43(4) of the LAA requires the court
to order the National Legal Aid Service to provide legal aid to
unrepresented persons charged with capital offences.
51. The Supreme Court, however, has held that the likelihood of suffering
substantial injustice is not limited to capital offences (R v Karisa
Chengo & 2 Others Supreme Court Petition No. 5 of 2015). In Thomas
Alugha Ndegwa v R (Court of Appeal at Nairobi Criminal Appeal
(Application) No. 2 of 2014), the Court of Appeal allowed an
application for legal aid from an appellant who had not been represented
in the proceedings before two lower courts. The Court of Appeal held
that because he had not previously been represented and because he was
serving a life sentence, substantial injustice might occur if he was not
represented during the appellant proceedings.
1 A child must be provided legal representation (see Chapter Two, para.52).

52. A child charged with an offence must be provided with an advocate at
state expense if he or she is unable to hire one (s. 186(b), Children Act).
If a child is unrepresented, the court may order the National Legal Aid
Service to provide legal aid to the child (s. 43(1), LAA). In Terry Goreti
Wasike & Another v R (High Court at Bungoma Criminal Appeal No.
86 and 87 of 2009), the court held that a presiding judge should
promptly inform a child of the right to legal assistance and ascertain
whether the child is able to obtain legal assistance.
53. A person wishing to receive legal aid is required to write to the National
Legal Aid Service (s. 40(1), LAA). To be eligible for legal aid, an
applicant must be an indigent resident of Kenya who is either a Kenyan
citizen, a child, a refugee under the Refugees Act, a victim of human
trafficking, an internally displaced person, or a stateless person (s.36(1),
LAA).
54. Lack of legal aid is not a bar to the continuation of court proceedings (s.
43(6), LAA). In R v Karisa Chengo & 2 Others (Supreme Court
PetitionNo.5of2015),the Supreme Court noted that the court exercises
discretion in determining whether substantial injustice will result if legal
aid is not provided, and there will be instances where the substantial
injustice test is not met and legal aid is not provided.
55. Where an accused is unrepresented, the court is expected to provide the

accused with some guidance on the court process. In Simon Githaka
Malombe v R (Court of Appeal at Nyeri Criminal Appeal No. 314 of
2010) the Court of Appeal held that the failure to invite an
unrepresented person to cross examine a witness, as set out in section
208(3) of the CPC, was inconsistent with the court’s role as an
‘educator of process’.

Interpreter
56. At the first court appearance, the court must satisfy itself that the
accused understands the language of the court. The official languages of
the court are English and Kiswahili (s.33(1), Court of Appeal
(Organization and Administration) Act; s. 34(1), High Court
(Organization and Administration) Act). An accused has the right to an
interpreter at State expense if the accused does not understand the
language of the court (art. 50(2)(m), CoK). This includes both the right
to language and, for the hearing impaired, sign interpreters.
57. In George Mbugua Thiongo v R(Court of Appeal Criminal Appeal Case

No. 302 of 2007), the court held that where the record shows that the
accused participated actively in the trial, he or she cannot be said to
have been prejudiced by the failure to record the language used in the
proceedings.
58. Violation of the right to an interpreter may result in a mistrial and the
quashing of a conviction (Hawo Ibrahim v R Court of Appeal at Nyeri
(sitting in Meru) Criminal Appeal No. 46 of 2014); Michael Nganga
Kinyanjui v R Court of Appeal at Nairobi Criminal Appeal No. 230 of
2011). However, a violation of the right to an interpreter does not
automatically lead to a retrial. The decision depends on the particular
facts and circumstances of the case, and an order for retrial should only
be made where the interests of justice require it (Julius Kaunga v R
Court of Appeal at Nairobi Criminal Appeal No. 189 of2000).
59. The language used must be one that the accused understands but not
necessarily the language the accused prefers. In Josphat Njue Solomon
v R (High Court Criminal Appeal No. 187 of 2008), the court held that
the language used need not be the accused’s mother tongue. This
holding was affirmed in Kyalo Kalani v R(Court of Appeal at Nairobi
Criminal

Appeal No. 586 of 2010). Victims are also entitled to interpreters if they
do not understand the language of the court (s.9(1)(f),Victim Protection
Act).
60. Interpreters must subscribe to an oath and be impartial. In Farahat

Ibrahim Ahmed & 2 Others v R (High Court at Kisumu Criminal
Appeal No. 68 of 2016), the court emphasised that it is the duty of the
court to ensure that an interpreter is qualified and competent. Further, if
the court does not know whether the interpreter is competent, it should
conduct an examination to determine whether the interpreter is
competent.
Well-being of the Accused Person

61. From the first court appearance and throughout the trial, the court should take
note of the physical state of accused persons who have been detained. Where it
is evident to the court, or where accused persons inform the court that they are
in need of medical attention, the court should direct officers in charge of
detention facilities to provide medical treatment. If there are allegations of
torture or physical assault, the court must inquire into the circumstances and
make appropriate orders.
VI. The Plea

62. Once informed of the substance of the charge or information, the
accused is called upon to plead (ss. 207 & 274, CPC).The court is
required to explain the charge and all the elements of the offence to the
accused in a language he or she understands (s. 207, CPC; Adan v R
[1973]EA 445; John Muendo Musau v R Court of Appeal at Nairobi
Appeal No. 365 of 2011). It is a fatal omission not to explain to the
accused all the elements of a charge (Charo v R [1982] KLR 308).
Particular attention should be paid to accused persons who are not
represented, and the court should ensure that the charge and all the
elements of the offence are thoroughly explained to unrepresented
persons (Judy Nkirote v R High Court at Meru Criminal Appeal No. 48
of 2010).

63. The court must ensure that the prosecution furnishes the accused with a
charge sheet or information. The particulars contained in the charge
sheet or information must be sufficient to enable the accused to answer
the charge and prepare their defence (art. 50(2)(b), CoK).
64. Where there is more than one accused person, each must be addressed
individually, and their individual responses recorded as nearly as
possible in their own words (Baya v R [1984] KLR657).
65. The accused must personally plead to the charge (Johnstone Kassim
Mwandi & Another v R High Court at Garissa Criminal Appeal No. 1
of2014).
66. A corporate entity can be charged with a criminal offence (Paper House
of Kenya Limited v R Court of Appeal at Nairobi Criminal Appeal
No.468 of 2007; Mumias Sugar Co. Ltd. W. S. M. Adambo v R High
Court of Kenya at Kakamega Criminal Appeal No. 11 of 2008). The
court must satisfy itself that the person taking the plea is authorized to
do so on behalf of the corporate entity (Manager, Nanak Crankshaft Ltd
vRHighCourtatNairobiCriminalRevisionCaseNo.763of2007;
M. S. Sondhi Ltd. v R (1950) 17 EACA 143; Stephen Obiro v R [1962]
EA 61). The officials of a corporate entity may also be charged in their
personal capacity for offences attributed to the company based on their
positions in the corporation and their conduct (s. 23, Penal Code; Clay
City Developers Limited v Chief Magistrate’s Court & 2 Others High
Court at Nairobi Miscellaneous Application No. 6 of 2013; Otieno
Kopiyo Gerald v R High Court At Nairobi Criminal Appeal No. 1226 of
1994).
Procedure on Taking Plea
67. After being read the charge, the accused must either admit or deny the
charge. An accused may also opt to remain silent, in which case a plea
of not guilty is entered, as discussed below.

Plea of Guilty
68. Where an accused admits the charge and the particulars of the offence, a
plea of guilty should be entered. The procedure to be followed where an
accused elects to plead guilty in a subordinate court is set out in section
207(2) & (3) and, in a High Court, in section 274 of the CPC. The case
of Adan v R [1973] EA 445 sets out the procedure (John Muendo
Musau v R Court of Appeal at Nairobi Appeal No. 365 of 2011). If the
accused admits the charge, the court must record the admission as
nearly as possible in the words used by the accused and then formally
enter a plea of guilty (s. 207(2), CPC; Adan v R [1973] EA 445; John
Muendo Musau v R Court of Appeal at Nairobi Appeal No. 365 of
2011).The aim is to ensure that the plea of guilty is unequivocal and that
the plea as recorded cannot be interpreted in any way other than as
admission of guilt. Where the accused is unrepresented, the duty of the
court to ensure that a plea of guilty is unequivocal is heightened as
emphasised. In Farahat Ibrahim Ahmed & 2 Others v R (High Court at
Kisumu Criminal Appeal No. 68 of 2016), citing Adan v R ([1973] EA
445), the court held that ‘the danger of a conviction on an equivocal
plea is obviously grievous where the accused is unrepresented, is of
limited education and does not speak the language of the court’.
69. The accused person’s plea must be specific and not merely a general
assertion of guilt. In Kariuki v R(Court of Appeal at Kisumu Criminal
Appeal No. 22 of 1984); [1984] KLR 809, the trial court record read:
‘Accused 1–story is correct; Accused 2–do; Accused 3–do; Accused 4–
do; Court–plea of guilty entered for all’ (presumably ‘do’ for ditto). The
Appeal Court held that the court had failed to follow the procedure for
recording a guilty plea as set out in s. 207(2) of the CPC and in Adan v
R ([1973] EA445). It also noted that the use of the word ‘do’ by the trial
court did not show an admission of facts and therefore ordered a retrial.

70. Where the accused is charged with more than one count, the court
should record a plea on each count separately (Ombena v R Court of
Appeal at Kisumu Criminal Appeal No. 36 of 1981). The court must be
satisfied that the accused wishes to admit, without any qualification,
each and every element of the offence charged (Elijah Njihia Wakianda
v R Court of Appeal at Nyeri Criminal Appeal No. 437 of 2010; Lusiti v
R High Court at Nairobi Criminal Appeal No. 319 of 1971). If satisfied,
the court should record a plea of guilty.
71. The courts have held that for the accused to say ‘It is true’ is not
necessarily a plea of ‘Guilty’, if it appears that the accused disputes
some element of the offence (Jason Akhonya Makokha v R Court of
Appeal at Kisumu Criminal Appeal No. 131 of2012).
72. Once an accused person admits the charge, the prosecutor is required to
state the facts upon which the charge is based (Adan v R [1973] EA
445). It is not enough for the prosecutor to state ‘facts as per charge
sheet’. The statement of facts must be explained to the accused in a
language that he or she understands. This implies not just a language
which the accused understands but also use of ordinary words; technical
words should be avoided.
73. The accused must admit the facts as stated for the court to satisfy itself
that the plea is unequivocal. In Obedi Kilonzo Kivevo v R (Court of
Appeal Criminal Appeal at Nairobi No. 77 of 2015), the court held that
the statement of facts did not disclose an offence because it did not
indicate the age of the victim in a defilement case. The plea of guilty
was therefore not unequivocal. In Ombena v R(Court of Appeal at
Kisumu Criminal Appeal No. 36 of 1981), the appellate court was not
satisfied that the plea was unequivocal because the prosecutor had
simply indicated that the ‘facts were as per the charge sheet’.

74. The court must ensure that the accused understands the substance of the
charge (Job Ntabo Ratemo v R Court of Appeal at Nairobi Criminal
Appeal No. 96 of 2014). When an accused person facing a charge
punishable by death wishes to plead guilty, the court ought to explain
the penalty attracted by the offence. In such a case, it is good practice to
adjourn the hearing and allow the accused to reflect on the plea before
proceeding to convict (Wandete David Munyoki v R Court of Appeal at
Malindi Criminal Appeal No. 56 of 2013). The court must be convinced
beyond doubt of the intention of the accused to plead guilty.
75. Upon hearing the facts on which the charge is based, the accused should
be given an opportunity to respond to the facts. If the accused denies the
facts, or offers an explanation that amounts to a denial, a plea of not
guilty should be entered (s. 207(3), CPC). If the facts are admitted, the
court must convict the accused on the plea of guilty.
Plea of Not Guilty
76. A plea of not guilty is entered in the following instances:

i) The accused does not admit the charge (s. 207(3), CPC);or
ii) The accused does not admit the statement of facts (Adan v R
[1973] EA 445; (John Muendo Musau v R Court of Appeal at
Nairobi Appeal No. 365 of 2011); or
iii) The accused refuses to plead (ss. 207(4) &280(1),CPC).

Plea Bargaining1
77. After an accused has been charged or at any time before judgment, the
prosecutor and an accused person may negotiate and enter into an
agreement for the reduction of a charge to a lesser offence, for the
withdrawal of the charge, for a stay of other charges, or for a promise
not to proceed with other possible charges (s. 137A,CPC).
79. The views of the victim must be sought in any plea bargaining
(s.137D(c), CPC;s.9(1)(c), Victim Protection Act).The plea agreement
may provide for the payment by an accused of any restitution or
compensation. If the prosecution is undertaken privately, a plea
agreement can only be entered with the consent of the Director of Public
Prosecutions (s. 137A (4), CPC).
80. Plea agreements may not be used in relation to prosecutions under the
Sexual Offences Act, offences of genocide, war crimes, and crimes
against humanity (s. 137 NCPC).
81. The court should not interfere with the prosecutor’s discretion to engage
in plea negotiations. However, where the prosecutor is in breach of
obligations under Article 157(11) of the Constitution, a party may apply
to the High Court for appropriate orders (Mary Kinya Rukwaru v Office
of the Director of Public Prosecutions & Another High Court at Nairobi
Petition No. 285 of 2016).
82. The court does not participate in plea negotiation. The plea agreement
must be in writing and must adhere to the requirements set out in
section 137E of the CPC.
1 The Office of the Director of Public Prosecutions has developed Rules on Plea Agreements
pursuant to section 137(O) of the CPC, which mandate the Director of Public Prosecutions
to make rules relating to plea negotiations and agreements (Legal Notice No. 47 of 2018,
February 19th).

83. Before recording a plea agreement, the court is required to place an
accused person under oath and personally address him or her. The court
must inform the accused and ensure that the accused understands the
rights pertaining to the trial and the implications of the plea agreement
(137F(1), CPC). The court must also be satisfied that at the time of
entering the agreement the accused was competent, of sound mind, and
acted voluntarily (s. 137G,CPC).
84. When a court accepts a plea agreement, it must record the ‘factual
basis’, that is, the facts informing the plea (s. 137H(1)(a), CPC). The
facts that the accused admits to must be recorded in order to ensure that
they support the offence. The agreement becomes binding on the parties
and forms part of the court record (Alvin Kamande Njenga & Another v
R High Court at Nairobi Miscellaneous Criminal Application No. 282
of2011; s. 137H, CPC). Where the agreement involves the reduction of
a charge to a lesser included offence, the court must, upon accepting the
plea agreement, convict the accused of that lesser offence (s. 137H(2),
CPC).
85. Where a court rejects a plea agreement, it must record the reasons for
the rejection and inform the parties. The plea agreement then becomes
null and void and proceedings giving rise to it become inadmissible in a
subsequent trial or in any future trial relating to the same facts. Where a
plea agreement has been rejected and a plea of not guilty consequently
entered, the prosecutor must institute fresh proceedings before another
judge, unless the accused waives the right to have the trial proceed
before another court. If a plea agreement has been rejected, then there
can be no further plea agreement negotiations in relation to the same
facts and, further, no party can appeal or apply for a review of an order
rejecting a plea agreement (s. 137J,CPC).

86. An accused person may withdraw a plea of guilty resulting from a plea
agreement for any reason before the court accepts the plea. The accused
may also withdraw a plea of guilty after the court has accepted the plea
agreement and entered a conviction but before sentencing. In this
instance the accused must provide the court with a fair and just reason
for requesting withdrawal (s. 137K,CPC).
87. A sentence passed by the court following a plea agreement is final, and
no appeal lies from it except as to the extent or legality of the sentence
imposed (David Irungu Muriithi v R Court of Appeal Criminal Appeal
No. 379 of 2009). However, a conviction and sentence obtained
pursuant to a plea agreement can be set aside on account of fraud or
misrepresentation (s. 137L,CPC).
Procedure for Persons of Unsound Mind
88. All persons are presumed to be of sound mind until the contrary is
proved (s. 11, Penal Code). When a person of unsound mind is charged,
the court should proceed as follows:
i) The court must determine whether the accused is of sound mind
by referring him or her to a psychiatrist. Thereafter, if the court is
satisfied that the accused is of sound mind, the court must require
the person to take plea.
ii) If the court finds the accused to be of unsound mind and
consequently incapable of understanding and following the
proceedings, the court should proceed as follows (ss.
162&280(1), CPC):
a. Postpone the trial;
b. Order either that the accused be held in custody in a location
where he is safe and will not be a danger to himself or others,
or that the accused be released on bail; and

c. If the person is held in safe custody, report the case for the
order of the President.1
89. When making an order for an accused to be held in safe custody, the
court should bear in mind the need to protect the accused and other
persons.
90. Where an accused person subsequently becomes capable of making his

defence, the medical officer must forward a certificate to that effect to
the Department of Public Prosecutions (DPP) who must then inform the
court and indicate whether the Republic intends to continue with the
case. The court must then order the production of the accused and either
discharge the person if the prosecution does not wish to proceed or
continue taking the plea (s. 164,CPC).
Plea of Autrefois Acquit or Autrefois Convict
91. A person must not be tried for an offence in respect to an act or

omission for which he or she has previously been acquitted or convicted
by a competent court (art. 50(2)(o), CoK; s. 138, CPC; Nicholas
Kipsigei Ngetich & 6 Others v R High Court at Nakuru Criminal Case
No. 123 of 2010). However, a person may subsequently be tried for
another offence that he or she could have been charged with in the
former trial under section 135 of the CPC (s. 139, CPC). An accused
person may also be charged with respect to an act whose consequences
had not occurred or were not known at the time of the previous trial (s.
140, CPC). The plea of autrefois acquit or convict does not apply to
instances where the accused was tried by a court that was not competent
(s. 141,CPC).
1 See Karisa Masha v R Court of Appeal at Mombasa Criminal Appeal No. 78 of 2014; while
itrelatestosection162 of the CPC, it is instructive as the procedure provided in s.280 of the
CPC is similar to 162.
92. If the accused pleads that he or she has previously been convicted or
acquitted of the same offence, the court is required to try that plea. If the
plea of a previous conviction or acquittal is not established, the accused
is required to plead to the charge (s. 207(5),CPC).
93. A previous conviction should be proved through a certified record of

the court, a certificate signed by the officer in charge of the prison in
which the accused had been detained, or a warrant of commitment to
prison (s. 142, CPC).
Change of Plea
94. An accused person may change a plea of guilty to not guilty at any time
before a sentence is imposed (John Muendo Musau v R Court of Appeal
at Nairobi Criminal Appeal No. 365 of 2011; Munguti v R High Court
at Nairobi Criminal Appeal No. 1815 of 1984; Boniface Kioko v R
Court of Appeal at Nairobi Criminal Appeal Nos. 12 &112 of 1982). In
John Musau, the court reiterated the obligation to register a plea of not
guilty when an accused changes the plea or when the accused makes
statements in mitigation that counter the guilty plea.
95. An accused may also change a plea of not guilty to a plea of guilty
(Boniface Kioko v R Court of Appeal at Nairobi Criminal Appeal No.
12 &112 of 1982). The court should be careful to ensure that the
accused understands the decision to change the plea just as the court
would if the accused had entered a plea of guilty from the outset.
Disposal of Exhibits after Plea
96. Where the charge relates to perishable, dangerous, noxious or bulky

exhibits, it is appropriate for the goods to be produced in court at the
first appearance or soon thereafter. Such exhibits include foodstuff,
chemicals, flammable petroleum products, and livestock.

97. These kinds of exhibits should be formally produced in court and an
order made for release. Failure to produce exhibits that are the subject
matter of the charge may be fatal, as the prosecution may not be able to
prove its case beyond reasonable doubt without the exhibits. In John
Bosco Kariuki v R High Court at Nairobi Criminal Appeal No. 272 of
2004, for example, the appellant was acquitted because the motor
vehicle claimed to have been stolen was not produced at trial.
98. If it is not feasible to keep exhibits, then photographs of the exhibits are
admissible. In John Mbugua v R, (High Court at Nairobi Miscellaneous
Criminal Application No. 69 of 2014), the court ordered the release of a
motor vehicle that had been held at a police station as an exhibit and
allowed the production of photographic evidence.
VII. Release on Bail or Bond Pending Trial
99. Accused persons have the right to bail except where there are
compelling reasons for denial of bail.1
100. An accused person need not make a formal application for bail; it
should therefore be granted as a matter of right unless the prosecution
raises an objection to release that is based on compelling reasons (art.
49(1)(h), CoK).
101. A court’s decision as to whether to grant or deny bail should be guided

by Article 49 of the Constitution, sections 123 and 123A of the CPC,
and the Bail and Bond Policy Guidelines, 2015.
102. Determining whether to release the accused on bail must be

distinguished from the determination of the person’s guilt. Thus, the
court should take care not to be influenced by statements of witnesses or
any evidence that may have come to its attention.2
1 See art. 49(1(h), CoK.

2 For instance, documents similar to committal bundles for the abolished committal
proceedings are sometimes placed in the court files in murder cases prior to the hearing.

Compelling Reasons
103. A compelling reason to deny release in this context is one that is

weighty and persuades the court that the accused should not be released
(R v Danfornd Kabage Mwangi High Court at Nyeri Criminal Case No.
8 of 2016).
104. The prosecution has the burden of proving that there are compelling
reasons to deny release (R v Danson Mgunya & Another High Court at
Mombasa Criminal Case No. 26 of 2008). To deny bail, the prosecution
must provide cogent evidence and not mere allegations .In Job
Kenyanya Musoni v R (High Court at Nairobi Criminal Application 399
of 2012), the court allowed a bail application and held that mere
allegations that the accused was a flight risk did not suffice. The
prosecution ought to have substantiated its claim.
105. Compelling reasons may include the likelihood that the accused will1:
i) Fail to attend court (s. 123A (2)(a), CPC). In Job Kenyanya
Musoni v R (High Court at Nairobi Criminal Application 399
of2012), the court stated that the key consideration when
deciding the issue of bail is whether the accused will attend the
trial or whether there is a likelihood of absconding. Reiterating
this position, the court, in R v Salim Said Nassoro & 2
Others(High Court at Nairobi Misc. Criminal Application No.
351 of 2016), stated that the seriousness of the offence, per se, is
not a ground for denying bail. An accused, a foreigner charged
with a terrorism offence, who had no ties in Kenya and who
failed to provide a Kenyan surety, was considered a flight risk in
Oluseye Oledaji Shittu v R (High Court at Nairobi Misc.
Criminal Application No. 130 of 2016).
1 See also para. 4.26, Bail and Bond Policy Guidelines.

ii) Commit, or abet the commission of, a serious offence. In R v
Fredrick Ole Leliman & 4 Others (High Court at Nairobi
Criminal Case No. 57 of 2016), the accused persons had been
charged with four counts of murder. The first deceased was an
advocate acting on behalf of the second deceased and prior to his
death had filed a report at the Independent Policing Oversight
Authority alleging that he had been harassed by the first
applicant. The court denied the accused persons bail because it
held that there was a real likelihood that they would commit
further offences if released. In R v David Miningwo (High Court
at Eldoret Criminal Case No. 44 of 2012), the accused had been
charged with murdering his wife, and one of the witnesses was
his eight-year-old daughter. The court denied bail, holding that,
under the circumstances, there was a likelihood that the accused
would harm the witness. The decision to deny an accused bail on
this ground ought to be exercised with caution as it may amount
to an assumption of guilt.
iii) Endanger the safety of victims, individuals or the public. In R v
Richard David Alden (High Court at Nairobi Criminal Case
No.48 of 2016), the court denied a claim that that an accused
should be detained because the case was highly publicized and
therefore releasing the accused would cause a breach of peace
and public order. The court held that the prosecution’s claims
were speculative and that it had not provided evidence
demonstrating the likelihood of unrest.
iv) Interfere with witnesses or evidence. In R v Richard David Alden
(High Court at Nairobi Criminal Case No.48 of 2016), the court
overturned the Magistrate Court’s order detaining the accused
and released him on bail. The High Court held that there must be
evidence of actual interference or a likelihood of interference.
The prosecution had argued that the employer/employee
relationship between the accused and two of the witnesses
suggested a
likelihood of interference with witnesses. The court, however, held that a mere
relationship between the accused and the witness, especially one that was not
filial, did not, standing alone, prove likelihood of interference. In K v R (High
Court at Kabarnet Misc. Criminal Application No. 67 of 2017), the court held
that the fact that the accused was the father of the complainant, a child, created
a likelihood of interference. The court therefore upheld the suspension of bail,
which was to be reinstated once the complainant had testified. In R v Fredrick
Ole Leliman & 4 Others (High Court at Nairobi Criminal Case No. 57 of 2016),
the court denied the accused persons bail on murder charges on the basis that
there was a real likelihood of interference with witnesses. The court noted that
the deceased persons were found dead after attending a trial involving one of
the accused persons. Further, all the accused persons wielded influence because
they were administrative police officers, and resided in the same area as the
witnesses. The court also noted that some witnesses had been placed under
witness protection and those who had not had expressed fear of imminent
danger.
v) Endanger national security or public safety. In R v Diana
Suleiman Said & Another (High Court at Mombasa
Miscellaneous Criminal Application No. 55 of 2014), the
accused was denied release because he had been charged with
twelve counts of murder during attacks in Lamu County. The
attacks were still ongoing at the time of his hearing, and the court
held that releasing him would pose a threat to public safety. In R
v Ahmad Abolafathi Mohamed & Another (High Court at
Nairobi Criminal Revision No. 373 of 2012), the court denied the
respondents bail in view of intelligence reports that linked 85kg
of unrecovered explosive materials to the respondents. The court
held that the threat to national security posed a compelling reason
to detain the accused.

vi) Protection of the accused (s.123A(2)(b), CPC).In Mahadi Swaleh
Mahadi v R (High Court at Mombasa Criminal Case No. 23 of
2014), the court took judicial notice of instances where persons
charged with terrorism-related crimes had died under mysterious
circumstances upon being released on bond. In view of this, the
court denied the accused bail for his protection.
106. The fact that the accused has been supplied with witness statements
does not warrant the denial of bail, unless there is evidence of a real
likelihood of the accused interfering with witnesses (R v Peter Muia
Mawia High Court at Machakos Criminal Case No. 48 of 2015). Bail
should not, therefore, be denied on weak grounds but on real and cogent
grounds that meet the high standard set in the Constitution. Allegations
of witness interference must be supported by evidence (R v Anthony
Mgendi Mbungu & Another High Court at Embu Criminal Case No. 34
of 2015). The court in R v Joktan Mayende & 3 Others (High Court at
Bungoma Criminal Case No. 55 of 2009) indicated that intimidation of
any kind aimed at influencing or compromising a witness amounts to
interference with witnesses.
107. If compelling evidence arises after the accused has been released or
granted bail, the court may properly review its earlier order and detain
the accused (R v Daniel Ndegwa Wachira High Court at Nyeri Criminal
Case No. 12 of 2015).
Bail in Minor Offences
108. A court may not detain an accused person who is charged with an
offence that is punishable by a fine only or by imprisonment for not
more than six months (art. 49(2), CoK). Read together with Article
49(1)(h), a person charged with an offence envisaged by Article 49(2)
can have reasonable conditions attached to the release on bail.

Some of the reasonable conditions include requiring that the accused
maintain good behaviour, attend court when required, provide security
in the form of a bond or surety, and refrain from interfering with
witnesses. The court may also impose restrictions on traveling out of
jurisdiction.
109. Courts must ensure bail conditions are reasonable and not excessive, as
this would lead to de facto imprisonment and amount to a violation of
Article 49(2). What is reasonable should be determined in light of the
facts and circumstances of each case (R v Taiko Kitende Muinya High
Court at Nairobi Criminal Case No. 65 of 2010).
110. Offenders charged with minor traffic offences must not be detained but
dealt with according to Article 49(2) of the CoK. Minor traffic offences
must be fast tracked (Guideline 4, Guidelines on Handling of Traffic
Matters).
Bail Considerations for Children

111. Considerations of bail in cases involving children must be guided by the
best interests of the child (art. 53(2), CoK; s. 4(2), Children Act; para.
4.4(j) Bail and Bond Guidelines; J M K & 9 Others v R High Court at
Garissa Criminal Appeal No. 24 of 2014).
112. Children should only be denied bail as a last resort, and when it is
denied, the trial should be expedited (art. 53(1)(f), CoK).
113. Children’s officers must be involved to provide information that may
guide the court in making decisions affecting children.
114. If the child is not released on bail, the court should order the remand of
the child in a children’s remand home or, if there is none within
reasonable distance, make any other order for the safe custody of the
child. The period for remand should not exceed six months if the
offence is punishable by death and not exceed three months for any
other offence (r. 10, Child Offenders Rules).The court must ensure that
the remand home is suitable for child taking into account the child’s age
and sex.
Sureties and Securities
115. To secure the attendance of an accused who is released on bail, the court
may require the accused to provide one or more sureties (s. 131, CPC).
116. The suitability of the surety is determined by the court through an

examination on oath. Factors to be considered by the court include(para.
4.40, Bail and Bond Policy Guidelines; R v James Kiarie Mutungei
High Court at Kajiado Criminal Revision 1 of 2017):
i) The surety’s financial ability to meet the obligations of the terms
of the bail;
ii) Character of the surety;
iii) Nature of the accused’s relationship with the surety;
iv) The surety’s residence
117. Any other factor that may have a bearing on the surety’s compliance
with bail terms.
118. The court must be satisfied that a proposed surety understands the
obligations of a surety and is willing to assume the role. During this
process of approving the surety, the prosecution should be involved
(para.4.40, Bail and Bond Policy Guidelines).
119. Examining the suitability of a surety is a judicial process and must be

put on record. In R v James Kiarie Mutungei (High Court at Kajiado
Criminal Revision 1 of 2017), the court held that the trial court must
examine the surety and that examination must appear on record. The
court noted that the record from the trial court provided no indication
that an examination had taken place. The court also held that the
prosecution ought to have been involved in the verification of
information provided by the accused and the surety.

120. Upon approval of a surety, the court should explain clearly that, should
the accused abscond or breach the bail terms, the surety would pay a
penalty or forfeit the bail or bond amount. A surety may apply to the
court to be discharged (s. 128(1), CPC). When this application is made
in the absence of the accused, the court should issue a warrant of arrest
against an accused (s. 128(2), CPC). The court should then order the
accused to provide other sufficient sureties. If the accused fails to do so,
he or she will be remanded into custody (s. 128(3), CPC).
121. Similarly, where a surety dies before the bond is forfeited, the court
should discharge the person’s estate and may require the accused to
provide another surety (s. 129, CPC).
122. Where an accused is required to provide a security so as to be released

on bond, the court must be furnished with a security document such as a
title deed, motor vehicle log book, or an insurance bond. In addition to
the security document, the court may require a valuation report
revealing the value of the property being offered as a security, especially
where the security is for a substantial amount.
123. Upon acceptance of a title deed or motor vehicle log book as a security
document, the court should make an order to restrain the transfer of any
interests in the secured property. The order should be served upon the
land registrar or the registrar of motor vehicles, as the case maybe.
124. If the accused absconds, the surety must be ordered to attend court to
pay a penalty or show cause as to why the penalty should not be paid
(s.131(1), CPC).Should the surety fail to pay the penalty, the court may
make an order for the attachment of the surety’s movable property or, if
the surety is deceased, the estate (s. 131(2), CPC).

CHAPTER THREE:
THE TRIAL PROCESS
GENERAL MATTERS RELATING TOTRIAL

I. Public Trial
1. As a general rule, criminal trials must be held in public (art. 50(1), CoK;
s. 77(1), CPC), although there are limited circumstances in which closed
proceedings are allowed (art. 50(8), CoK). The court must be convinced
that there is no alternative measure that would protect the interest in
question other than excluding the public. Sometimes only certain classes
of person need be excluded. It is undesirable to have the whole trial in
camera; where possible, and where the circumstances of the case so
demand, part of a trial may be held in private and part of it in public. 1 A
trial does not cease to be public because not everyone who wishes to be
present is able to do so.2
2. Article 50(8) of the Constitution recognizes the following grounds upon

which a court can exclude the public from atrial:
i) To protect witnesses or vulnerable persons (r. 2(2),Sexual
Offences Rules of Court, 2014): In some cases, it may be
necessary to hold a trial in camera for the safety or privacy of
victims, witnesses or accused persons. In Application for Orders
of Witness Protection(High Court at Nairobi Misc Case No. 30
of 2014), the court allowed witnesses to testify in camera as the
accused persons were alleged to be members of a dangerous gang
and, together with their accomplices, had allegedly issued threats
against anyone who would testify during their trial. In R v Amos
Gichuhi Kimeria (High Court at Nakuru Criminal Appeal No. 49
of 2012), in an application to exclude the public from hearings,
the court reiterated the right to a public trial but noted that the
negative media coverage made the accused person vulnerable.
1 Guardian News and Media Ltd v E Incedal & M Rarmoul-Bouhadjir [2014] EWCA Crim
1861 Court of Appeal (Criminal Division).
2 R ex p. O’Connor v Aldershot Magistrates Court [2016] EWHC 2792 (QB Divisional Court).

While the application to exclude was not allowed, the court
ordered the media to report the proceedings accurately without
inflammatory conclusions. The court further ordered that media
houses that violated the order or any member of the public that
threatened the accused would be excluded from the proceedings.
The law does not require that the trial of a child is held in private,
but the court will bear in mind the requirement of respecting the
best interests of the child as the paramount consideration (R v Ali
Hassan High Court at Nairobi Criminal Case No. 11 of 2013).
ii) To protect morality: The court has discretion to exclude the
public if it is satisfied that the evidence being adduced would
offend morals. Not all cases involving such evidence will require
the exclusion of all members of the public. For instance, the
court may exclude children from a trial in which obscene
evidence is to be presented.
iii) To protect public order: where criminal trials are likely to cause
disruptions of public order, the public may be excluded. In R v
Amos Gichuhi Kimeria (High Court at Nakuru Criminal Appeal
No. 49 of 2012), for example, the court directed that the cases
should be reported in manner that does not ‘draw conclusions
that are likely to incite or influence public outrage against the
[accused] or his counsel’ and stated that, if the orders were
violated, the media houses would be excluded from the trial.
iv) To protect national security: A trial may be held in camera in
criminal proceedings involving evidence that would compromise
national security.
3. As noted, a public trial is central to the rule of law and the discretion to
hold a trial in camera must be used with caution.

II. Attendance of Parties
Attendance of the Accused Person
4. The accused person has a right to be present throughout the trial

(art.50(1) (2)(f), CoK). The court may issue a summons to ensure the
attendance of an accused person (s. 91, CPC). Where an accused or
appellant who is in custody is not produced for trial by the authorities,
the court should issue a Production Order directing the authority to
produce the accused or appellant in court on a date specified in the
Order (s. 116,CPC).
5. The court may waive the presence of an accused if, after receiving a
summons to appear for a misdemeanour charge, the accused either
pleads guilty in writing or is represented by an advocate (s. 99(1),CPC).
The court may, however, direct that the accused attend any subsequent
proceedings. If the offence is punishable only with a fine or no more
than three months imprisonment, the court has no discretion: presence
must be waived if the accused pleads guilty or is legally represented
6. A warrant of arrest may be issued for an accused person who was

served with a summons to appear but failed to do so (s. 101, CPC). Such
a warrant may also be issued at any time before the time appointed in
the summons (s. 100, CPC).
7. An accused’s failure to appear for a hearing is treated differently

depending on whether the case is a misdemeanour or a felony. If the
accused is charged with a misdemeanour, the court may proceed with
the hearing as if the accused were present (s. 206(1), CPC). If the
accused is charged with a felony, the court must issue a warrant of arrest
for the accused to be brought before the court (s. 206(4), CPC). Where
an accused charged with a misdemeanour is tried and convicted in the
accused’s absence, the conviction may be set aside if the court is
satisfied that there were legitimate reasons for the failure to appear that
were beyond the accused’s control and that the accused had a viable
defence (s. 206(4), CPC). The court may, however, proceed in the
absence of the accused if the accused’s conduct makes it impossible for
the trial to be conducted in his or her presence (art. 50(2)(f), CoK). In
Daniel Karuma alias Njaluo v R(Court of Appeal at Nairobi Criminal
Appeal No. 157 of 2014), for example, the Court of Appeal affirmed the
trial court’s decision to exclude the accused from the proceedings due to
his disruptive behaviour, which included making loud noises, banging a
metal door, turning his back to the court, and cursing.
8. In Aggrey Mbai Injaga v R(Court of Appeal at Nairobi Criminal Appeal

No.150 of 2013),the Court of Appeal held that a trial court may proceed
with the trial in the absence of an accused person who declined to
participate and left the courtroom of his own volition. In the United
Kingdom case, Regina v Jones ([2002] UK HL 5), the House of Lords
held that a trial court could try, in absentia, accused persons who had
absconded after being released on bail.
9. However, the discretion to proceed in the absence of the accused must

be exercised with caution. The court must satisfy itself that there are
sufficient grounds to conclude that the person has absconded and is
unwilling to participate in the trial (R v Solomon Locham High Court at
Kapenguria Revision of Criminal Case No. 718 of 2013). Further,
possible measures to procure the attendance of the accused must have
been exhausted.
The Complainant’s Attendance
10. When an accused person appears for a hearing, but the complainant,
who had notice of the time and place appointed for the hearing, fails to
appear, the court has the discretion to acquit the accused (s. 202, CPC).
This power to acquit must be exercised judicially.

11. The word ‘complainant’ refers to either the Republic or the person who
filed the complaint. Specifically, in section 202 the word ‘complainant’
has been interpreted to mean the Republic in whose name all criminal
prosecutions are brought and not the victim of the crime, who is merely
the chief witness on behalf of the Republic (Roy Richard Elirema &
Another v R Court of Appeal at Mombasa Criminal Appeal No. 67 of
2002). Accordingly, the accused cannot be acquitted under section 202
when the prosecutor is in court even though the case cannot proceed
because the person making the complaint and other witnesses are absent
(R v Mwaura Ikego (1979) KLR209).
12. If necessary, a victim can be provided with reasonable out of pocket and
travel expenses to attend trial. (s. 394, CPC; r. 2,Criminal Procedure
(Remuneration of Witnesses and Assessors) Rules).
13. The court may, for reasons it considers to be proper, adjourn the hearing
of the case until some other date and on such terms as it deems fit (s.
202, CPC). If the complainant still fails to appear in court after an
adjournment, the court has the discretion to dismiss the charge with or
without costs (s. 206(1),CPC).
14. The power to dismiss a charge or acquit the accused person following
the failure of the complainant to attend court should be exercised with
caution. The court should only exercise such power where it is evident
that the complainant’s absence is deliberate or repeated (R v Mwaura
Ikego High Court at Kisumu Criminal Appeal No. 46 & 47 of 1979; R v
Mike Ole Nkoruma & 2 Others High Court at Homa Bay Criminal
Appeal No. 93 of 2014).
III. Expeditious Conduct of Trial
15. A trial must be concluded without unreasonable delay (art. 50(2)(e),

CoK). The court’s decisions throughout the trial should be exercised in
a manner that upholds this right. Court proceedings should be carefully

planned and organized with the intention of avoiding unnecessary
delays in the processing of cases. Expeditious determination or conduct
of criminal trials is an accused person’s right and is in the public interest
and in the interests of justice (Eliphaz Riungu v R Misc. Criminal
Application No. 472 of 1996). The requirement to dispose of cases
expeditiously should be taken into account when setting the hearing
dates.
16. Whether a trial has been concluded without unreasonable delay is

determined on a case by case basis (Julius Kamau Mbugua v R Court of
Appeal at Nairobi Criminal Appeal No. 50 of 2008, [2010] eKLR 19).
However, it should be borne in mind that a hasty trial carries with it the
risk of prejudicing an accused person and thus resulting in an unfair trial
(Joseph Ndungu Kagiri v R High Court at Nyeri Criminal Case No.62
of 2012, where the trial of unrepresented accused proceeded only six
days after they were arraigned).
17. Courts are obligated to conclude expeditiously cases that involve

vulnerable persons such as children, the elderly, and persons with
intellectual disabilities (s. 38(4), Persons With Disabilities Act
(PWDA)). Such vulnerable persons may have unique needs or
limitations. For example, they may have difficulty recalling information
over a long period of time or may not be able to endure an unduly long
trial. The Children Act (CA), as well, requires that trials of children be
held without unnecessary delays (s. 186(c), CA; r. 12, Child Offenders
Rules;1 Kazungu Mkunzo & Swaleh Kambi Chai v R Court of Appeal at
Mombasa Criminal Appeal No. 239 of2004).
1 In view of the old Constitution’s requirement to conclude within ‘reasonable time‘ the time
limits for trials of child offenders set by rules 12(2)-(4) of the Child Offender Rules were
declared unconstitutional (as well as ultra vires the Act): Kazungu Kasiwa Mkunzo v R
Criminal Appeal at Mombasa No. 239 of 2004.

18. The Anti-Corruption Court is required to hold a trial on a daily basis
until its conclusion as far as it is practicable to do so (s. 4, Anti-
Corruption and Economic Crimes Act). Where this is not practicable,
the court may direct that the trial proceeds daily within designated
‘block dates’ that have been agreed upon by the parties (Practice
Directions for the Anti- Corruption and Economic Crimes Division of
the High Court). In fixing such dates, the gravity, urgency, complexity
of the case, and considerations of national interest should be taken into
account.
19. With respect to election offences, the court is required, as far as
practicable, to proceed on a daily basis until completion of the trial (s.
23, Election Offences Act).
IV. Adjournment of Hearing
20. The court’s discretion to grant or refuse an adjournment (ss. 205& 283,
CPC) has to be exercised judicially depending on the circumstances of
each case (FUM v R Court of Appeal at Nyeri Criminal Appeal No.139
of 2010; R v Mwaura Ikego High Court at Kisumu Criminal Appeal No.
46 & 47 of 1979; Francis Otieno Joseph v R Misc. Criminal Application
No. 19 of 2015).
21. Adjournments are available both to the prosecution and to the defence
but neither the prosecution nor the defence is entitled to indefinite
adjournments, as this would undermine the right to trial within a
reasonable time. In FUM v R (Court of Appeal at Nyeri Criminal
Appeal No. 139 of 2010), the court upheld the decision of the trial judge
who denied an application for an adjournment by an accused person
who had already requested numerous adjournments and who appeared
unwilling to proceed. Similarly, in Aggrey Mbai Injaga v R (Court of
Appeal at Nairobi Criminal Appeal No.150 of 2013), the Court of
Appeal affirmed the trial court’s decision to deny a request for an
adjournment by an accused person who had been granted four
adjournments previously. In
Wycliffe Kisanya Lusigi v R (Court of Appeal in Eldoret Criminal
Appeal No. 64 0f 2005), the prosecution had obtained many
adjournments and had taken five years to present five witnesses. The
Court of Appeal allowed the appeal, and observed that trial courts must
refrain from granting unwarranted adjournments. Having previously
stated that it would not allow any further adjournments, the court in R v
John Gachathi Gitau (High Court at Nairobi Criminal Case No. 15 of
2011) denied an application by the prosecution for another adjournment
to obtain a death certificate. The court stated that another adjournment
was unwarranted, and that it would have been acceptable for the
prosecution to present an affidavit from the relevant government officer
and a burial permit in lieu of the death certificate.
22. On the other hand, adjournments ought not to be denied in warranted

cases. (Mugema v R [1967] EA 676; R v Mwaura Ikego High Court at
Kisumu Criminal Appeal No. 46 & 47 of 1979) - in which the judge
commented that the prosecution had not requested adjournments
previously, that the accused were on bail, and that case could be
adjourned until the next day; Stephen Odede v Court Martial at Kahawa
Garisson & Another (High Court at Nairobi Petition 149 of 2016) - in
which the court noted that the accused should not be required to proceed
without having the chance to prepare his defence when counsel for the
accused, not the accused himself, was responsible for the delay.
23. The court must balance the right to adequate time for preparation of the
defence and the right to a trial within a reasonable time (R v Misheck
Muyuri High Court at Meru Criminal Appeal No. 204 of 2005). There is
no requirement that each party have an equal number of adjournments
(Patrick Kihara Mwangi v R High Court at Naivasha Criminal Appeal
No. 64 of 2015). Where a case has been adjourned to a date fixed by the
court in the presence of the parties, the hearing date ought not to be
altered without the involvement of all the parties (Sammy Macharia
Ruhi v R High Court at Nairobi Criminal Appeal No. 428 of 1985).

Mention of Cases
24. Section 205 of the CPC requires that a case should not be adjourned or
longer than thirty days and, in respect of an accused person on remand,
fifteen days (s. 205, CPC). As a result, courts have established a
practice of mentioning cases every fortnight when an accused person is
in custody or every thirty days for those released on bail.
25. The purpose of mentioning a case is to enable the court to keep track of
the case, to ensure that accused persons are not detained in custody for
longer than necessary, and to assess the condition of the accused person.
Mentions provide an opportunity for accused persons, particularly those
in custody, to raise grievances or complaints and for the court to make
necessary orders. During mentions, courts make orders for further
remand of the accused persons until the next mention or hearing date.
Courts should ensure that accused persons are in attendance for mention
of their cases.
Part-heard Cases
26. Once a trial begins, the judge or magistrate should hear the case to
conclusion (Abdi Adan Mohamed v R Court of Appeal at Mombasa
Criminal Appeal No. 1 of 2017). However, where a judge or magistrate
ceases to exercise jurisdiction before the case is finalised, the case may
be taken over by another judge or magistrate(ss.200 & 201(2),CPC).In
such a case, a succeeding judge or magistrate may proceed as follows:
i) If a judgment had been written and signed by the predecessor but
not delivered, the succeeding magistrate should deliver
it(ss.200(1)(a) & 201(2),CPC),
ii) If a judgment had been delivered, pass a sentence or make any
other appropriate order (ss. 200(2)&201(2),CPC)
iii) Start the trial afresh (ss. 200(1)(b)&201(2)), CPC),or

iv) Proceed with the trial from where the predecessor had reached
(ss. 200(1)(b)&201(2),CPC).
27. In Charles Ogero Bosire v R(Court of Appeal at Kisumu Criminal

Appeal No. 152 of 2011), it was held that a case should be heard de
novo where the judge or magistrate is unable to understand the evidence
as recorded. In Peter Karobia Ndegwa v R (Court of Appeal at Nakuru
Criminal Appeal No. 125 of 1984), the succeeding magistrate took over
the case when evidence had been tendered halfway. The Court of
Appeal held that the hearing should have been started de novo because
the witnesses were available, and the trial had only recently
commenced.
28. Where the succeeding judge or magistrate opts to continue the trial and
the predecessor had already recorded part of the evidence, the accused
person has the right to have a witness re-summoned and re-heard. The
judge or magistrate must inform the accused of this right (ss. 200(3)&
201(2), CPC). The right to re-summon witnesses is consistent with the
right to a fair trial and is intended to give the succeeding magistrate the
opportunity to personally evaluate the demeanour and credibility of
witnesses (Abdi Adan Mohamed v R Court of Appeal at Mombasa
Criminal Appeal No. 1 of 2017). This right, however, must be exercised
in good faith and should not be demanded when it is futile to do so
because, for example, the witness is deceased or who, despite all efforts,
cannot be located (Abdi Adan Mohamed v R Court of Appeal at
Mombasa Criminal Appeal No. 1 of 2017). The prosecution has the
burden of proving that a witness is not available to be re-summoned.
Abdi Adan Mohamed v R stated that section 200 of the CPC should be
invoked sparingly, holding that a magistrate who had heard five of the
six trial witnesses should have returned to complete the trial.

V. Termination of Cases
Termination by the Director of Public Prosecution
29. Article 157(6)(c) of the Constitution empowers the DPP to discontinue,

at any stage before judgment is delivered, any criminal proceedings
instituted either by the DPP or by another person or authority. In the
latter case, the DPP must first take over the criminal proceedings with
the consent of the person or authority (arts. 157(6)(b) & (c), CoK).
30. The DPP is required to obtain the court’s permission before

discontinuing prosecution (art. 157(8), CoK). In R v Enock Wekesa &
Another(High Court at Kitale Misc. Criminal Revision No. 267 of
2010), the court reiterated that this requirement applies to all cases.
When exercising such powers, the DPP is required to give due regard to
the public interest, the interests in the administration of justice, and the
need to prevent and avoid abuse of legal process (art. 157(11, CoK;
Helmuth Rame v R High Court at Nairobi Misc. Application No. 530 of
2012). The court is required to interrogate the reasons given by the
prosecutor to determine whether the application meets the threshold set
out in Article 157(11). Withdrawal should not be permitted if it is
oppressive to the accused person, if the DPP is acting maliciously or in
bad faith, or is otherwise abusing court process (R v Muneh Wanjiku
Ikigu High Court at Kiambu Criminal Case No. 1 of 2016). In Ikigu, the
prosecution had conducted the trial for four years and ten months,
during which the accused was in custody. The prosecution had been
unable to trace witnesses and sought to withdraw the case. The court
held that there was no reasonable likelihood that the witnesses would be
traced, and therefore acquitted the accused.
31. In the magistrates’ courts, the prosecutor, with the court’s permission,
can withdraw proceedings at any time before judgment (arts. 157(6)(c)
&157(8), CoK;s.87,CPC).If the case is discontinued after the close

of the prosecution’s case, the accused person is acquitted (art. 157(7),
CoK; s. 87(b),CPC). If discontinued before the accused has had the
opportunity to present a defence, the accused must be discharged.
However, the discharge does not bar the DPP from bringing subsequent
proceedings against the accused on the same facts (s. 87(a), CPC).
32. In both the magistrates’ courts and the High Court, the DPP, with the
permission of the court, may discontinue the proceedings by entering a
nolle prosequi either orally or in writing (s. 82(1),CPC; arts. 157(6)(c)
& (8), CoK). Upon entering a nolle prosequi, the accused is discharged.
If in custody, the accused is released, and if on bail, the recognizances
are discharged or released (s. 82(1), CPC). Where the accused is not
present when the nolle prosequi is entered, a notice must be served on
the accused. If detained, the notice must be served on the person in
charge of the prison (s. 82(2), CPC).
33. The entry of a nolle prosequi is not a bar to subsequent proceedings

against the accused on the same facts (s. 82(1), CPC). However, Article
157(7) of the Constitution provides that if proceedings are discontinued
after the close of the prosecution’s case the accused must be acquitted.
Withdrawal of Complaint by Complainant
34. Under section 204 of the CPC, the complainant may withdraw the
complaint before the court passes a final order in the case. The court has
discretion as to whether to allow or reject the withdrawal. In exercising
this discretion, the court must be satisfied that there are sufficient
grounds for permitting such a withdrawal (R v Malek Abdulla
Mohamed High Court at Kisumu No. 113 of 1978; Ceretta Medardo v R
High Court at Malindi Criminal Appeal No. 73 of 2004, [2004] 2 KLR
433).
35. In R v Faith Wangoi (High Court at Kajiado Criminal Misc No. 1 of

2015), the court held that if a victim requests that a case be withdrawn,
the victim must seek withdrawal from the prosecutor.
Alternative Dispute Resolution Mechanisms in Criminal Cases
36. Section 176 of the CPC allows the court to promote reconciliation or to
encourage and facilitate the amicable settlement of proceedings on
terms of payment, compensation or other terms approved by the court.
Article 159(2)(c) of the Constitution places a responsibility on the
courts to promote alternative forms of dispute resolution, including
reconciliation. The power under section 176 is restricted to common
assault and other offences of a personal or private nature that do not
amount to a felony and do not include any aggravating factors (Ceretta
Medardo v R High Court at Malindi Criminal Appeal No. 73 of 2004,
[2004] 2 KLR 433). Where section 176 is invoked, the court may stay
or terminate proceedings. Reconciliation of parties serves the broader
objective of reducing backlog and, where possible and appropriate,
courts should encourage it (Shen Zhangua v R Misc. High Court at
Nairobi Criminal Application No. 396 of 2006).
37. Pursuant to Article 157 of the Constitution, the role of the DPP in
criminal proceedings is maintained even where alternative dispute
resolution mechanisms are invoked (art. 157(6)(b) & (c), CoK). In Mary
Kinya Rukwaru v Office of the Director of Public Prosecutions &
Another (High Court at Nairobi Petition No. 285 of 2016), the court
directed that while the court may allow alternative dispute resolution
mechanisms, the DPP must concur and the parties must agree. In
Rukwaru, the court rejected an agreement by the parties to terminate
criminal charges because the DPP did not concur with the decision. The
DPP’s participation is necessary, the court held, because it has the
responsibility to consider the public interest (art. 157, CoK).

Death of Accused
38. If the accused dies before the conclusion of the trial, the criminal
proceedings are terminated. The court must be provided with the
Certificate of Death or any other acceptable evidence of the death of the
accused.
VI. Case Management
39. Before a trial begins, the court should hold a pre-trial conference to
address preliminary matters and make necessary arrangements for the
trial. Pre-trial conferences limit unnecessary adjournments,
interlocutory applications, and promote determination of cases without
undue delay. Upon the entry of a plea of not guilty, a pre-trial
conference should be held as soon as possible.
40. At the pre-trial conference, or at the beginning of the trial, if a pre-trial

conference is not held, the court should address the following issues in
preparation for the trial:
i) Disclosure of evidence
ii) Protection of vulnerable witnesses
iii) The number of witnesses to be called
iv) Whether expert witnesses will be called
v) Use of an interpreter
41. If for any reason a party wishes to submit that the presiding judge or
magistrate should recuse himself or herself, it should be done at this
stage.

VII. Disclosure of Evidence
Disclosure by the Prosecution
42. Accused persons have the right to be informed in advance of the

evidence that the prosecution intends to rely on (art. 50(2)(f), CoK). The
accused person is also entitled to reasonable access to that evidence (art.
50(2)(j), CoK) for purposes of preparation of his or her defence
(Thomas Patrick Gilbert Cholmondeley v R Court of Appeal at Nairobi
Criminal Appeal No. 116 of 2007; George Ngodhe Juma & 2 Others v
Attorney-General High Court at Nairobi Misc. Criminal Application
No. 345 of 2001). This includes access to the charge sheet and the
witness statements. The prosecution must disclose all the evidence in its
possession regarding the case, including evidence that the prosecution
does not intend to rely upon.
43. The prosecutor has a duty to disclose evidence at the pre-trial stage and
this duty continues throughout the trial (art. 50(2)(j), CoK; Hussein
Khalid & 16 Others v Attorney-General & 2 Others High Court at
Nairobi Petition Number 324 of 2013; Thomas Patrick Gilbert
Cholmondeley v R Court of Appeal at Nairobi Criminal Appeal No. 116
of 2007).
44. The interests of justice may sometimes demand non-disclosure of

specific evidence at the pre-trial stage. Where the prosecution has good
reason for not disclosing evidence in the pre-trial stage, it must obtain
leave of court to temporarily withhold the evidence until the hearing.
However, the evidence would have to be produced at the hearing stage
as an accused is entitled to disclosure of full evidence (Thomas Patrick
Gilbert Cholmondeley v R Court of Appeal at Nairobi Criminal Appeal
No.116 of 2007).Whenever a disclosure is made during trial, an accused
person must be given adequate time and facilities to prepare a defence,
including adjourning the hearing if necessary (Dennis Edmond Apaa &
2 Others v Ethics and Anti-Corruption Commission & Another High
Court at Nairobi Petition No. 317 of 2012). In Felix Mwova Vaasya v R
(High Court at Machakos Misc Crim App No. 48 of 2016), the court
held that providing the accused person with copies of statements by
witnesses only a day before the trial did not give the accused sufficient
time to prepare his defence.
Disclosure by the Accused Person
45. Generally, the accused person does not have a duty to disclose his or her
evidence to the prosecution in advance (Thomas Patrick Gilbert
Cholmondeley v R Court of Appeal at Nairobi Criminal Appeal No. 116
of 2007). However, section 9(1)(e) of the Victim Protection Act (VPA)
entitles the victim to disclosure of the evidence that both the prosecution
and the defence intend to rely on. In R v IP Veronicah Gitahi & Another
(High Court at Mombasa Criminal Case No. 41 of 2014 (unreported)),
the court relied on section 9(1)(e) to require the accused persons to
disclose the defence witnesses and their statements to the victim.
46. An accused who wishes to rely on an alibi defence is, however, required
to disclose it at the earliest opportunity (Athuman Salim Athuman v R
Court of Appeal at Mombasa Criminal Appeal No. 44 of 2015; Karanja
v R Court of Appeal at Kisumu Criminal Appeal No. 65 of 1983).
Recusal of the Presiding Officer

47. In a matter where there may be perceived or actual bias on the part of a
judge or magistrate, the matter should be heard by another court or
presiding officer. The test as to whether the trial judge or magistrate
should recuse him or herself is not whether an actual bias exists, but
instead whether the circumstances could raise a reasonable perception
that the ends of justice would not be met if the judge or magistrate were
to continue to hear the case (John Brown Shilenje v R High Court at
Nairobi Criminal Application No. 180 of 1980; Barnaba Tenai v R High
Court at Eldoret Misc. Application No.82 of 2013). Mere claims that the

accused person may not have an impartial and fair trial do not suffice;
the court should be satisfied that the accused person’s apprehension is
based on reasonable grounds (R v Raphael Muoki Kalungu High Court
at Nairobi Criminal Case No. 77 of 2014; Kinyatti v R Court of Appeal
at Nairobi Criminal Appeal No. 60 of 1983).1
48. Whether recusal is justified depends on the circumstances of the case. In

Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others(Supreme
Court Petition No. 4 of 2012), the Supreme Court noted that the
circumstances in which recusal may be ordered are not fixed. The
primary consideration, it held, is whether the participation of the judge
or magistrate compromises the ‘perception of fairness, of conviction, of
moral authority to hear the matter.’ Further, the court noted that the
purpose of recusal is to ensure that the rights to justice and due process
are both satisfied and are seen to have been satisfied.
49. A magistrate or judge may be disqualified on his or her own motion

(Kinyatti v R Court of Appeal at Nairobi Criminal Appeal No. 60 of
1983; R v Raphael Muoki Kalungu High Court at Nairobi Criminal
Case No. 77 of 2014) or on application or by order of a higher court.
50. In cases where the judge or magistrate has an interest or is intimately

known or related to the parties, the judge or magistrate ought to
disqualify himself or herself (Jasbir Singh Rai & 3Others v Tarlochan
Singh Rai & 4 Others Supreme Court Petition No.4 of 2012). This also
applies where one of the advocates is the judge’s or magistrate’s close
relative.
51. Where an accused person seeks a recusal of the judge or magistrate, the
burden is on the accused to show that circumstances exist that would
make a reasonable person believe that a fair and impartial trial cannot
1 See also R v Hashmi [1968] KLR 656; Masha & Others v R [1971] EA 201; Makinda &
Another v R [1979] KLR 134;R v Samson Ochieng Nyambura & Others, High Court at
Kisumu Criminal Application No.39 of 1991 (unreported); R v Kiprop Koech, High Court
at Nakuru Criminal Application No. 280 of 1992 (unreported).
be held before that judge or magistrate (John Brown Shilenje v R High
Court at Nairobi Criminal Application No. 180 of 1980; Kinyatti v R
Court of Appeal at Nairobi Criminal Appeal No. 60 of 1983).
52. The judge or magistrate should record the reasons for recusal or refusal.
(art. 10(2)(c), CoK).
VIII. Witnesses
Swearing of Witnesses
53. Under section 151 of the CPC, every witness in a criminal matter must
be examined on oath or affirmation. For example, in Samwel Muriithi
Mwangi v R (Court of Appeal at Nyeri Criminal Appeal No.39 of
2005), the court held that the appellant was prejudiced because he was
convicted and sentenced based on unsworn evidence. Every court
before which a witness appears has full power and authority to
administer an oath (s.14, Oaths and Statutory Declarations Act). A
judgment, however, may not be dismissed merely because a witness has
been sworn informally (s. 328, CPC).
54. If a witness stands down, but resumes giving evidence later, it is good
practice for the court to remind them that they are under oath when
proceedings resume (Samuel Mwangi Gitahi & Another v R High Court
at Nyeri Criminal Appeal No. 178 of 2010).
Credibility of Witnesses
55. The court is entitled to consider the demeanour of a witness in assessing

their trustworthiness, reliability, and integrity (Ndungu Kimanyi v R
(1979) KLR 282 and Kiilu v R (2005) 1 KLR 174). In assessing the
demeanour, the court should be sensitive to cultural differences, such as
the lack of eye contact, which, in some cultures may be construed as
evidence of untrustworthiness but in other cultures may be construed as
a sign of respect.

56. Section 199 of the CPC requires that the magistrate record his or her
remarks (if any) regarding the demeanour of witnesses whilst under
examination (Rebecca Mwikali Nabutola & 2 Others v R High Court at
Nairobi Criminal Appeal No. 232 of 2012). However, this does not
permit the court to form a view as to the credibility of the witness at that
stage; the determination as to credibility should be made in view of the
totality of the evidence (Gregory Muli Masau v R High Court at Nairobi
Criminal Appeal No. 549 & 550 of 1979, [1980] KLR 54(HC)).
Refractory Witnesses
57. A refractory witness is an uncooperative witness who: refuses to be

sworn; or having been sworn refuses to answer questions; or refuses to
produce any document or other evidence required of them; or refuses to
sign a deposition which they made (s. 152(1),CPC).
58. If a witness refuses to cooperate, the court may adjourn the proceedings
for a period not exceeding eight days during which the witness may be
committed to prison unless the witness consents to do what is required
(s. 152(1), CPC). This may be repeated until the witness complies (s.
152(2), CPC). The committal to prison under section 152 of the CPC
does not preclude the witness from any other form of punishment for
which he or she may liable (s. 152(3),CPC).
59. The court may proceed with the case while a refractory witness remains
in custody (s. 152(2),CPC).
60. The court should take into consideration a refractory witness’s refusal to
cooperate when evaluating the probability and reliability of the evidence
(Daniel Odhiambo Koyo v R Court of Appeal at Kisumu Criminal

Hostile Witnesses
61. A witness who contradicts his or her former statements, whether oral or
written, is termed a hostile witness (s. 163(1)(c), Evidence Act; Abel
Monari Nyanamba & Another v R Court of Appeal at Nairobi Criminal
62. A party who calls a witness may apply for the witness to be declared
hostile and request to cross-examine that witness (s. 161, Evidence Act).
The intention of the cross-examination is to demonstrate that the
witness is not reliable (Patrick Macharia v R High Court at Nairobi
Criminal Appeal No.1277 of 2001).The court should be satisfied that
the witness is deliberately being dishonest.
63. The evidence of a hostile witness should be treated with caution (Daniel
Odhiambo Koyo v R CourtofAppealatKisumuCriminalAppealNo.182 of
2010; Patrick Macharia v R High Court at Nairobi Criminal Appeal No.
1277 of 2001). Thus, a conviction cannot be supported solely by the
evidence of a hostile witness (Abel Monari Nyamamba & Another v R
Commission for Examination of Witness
64. When in the course of trial, it becomes evident to the court ‘that the
examination of a witness is necessary for the ends of justice but the
attendance of such witness cannot be obtained without unreasonable
delay, expense or inconvenience in the circumstances of the case, the
court may issue a commission to any court within the local limits of
whose jurisdiction the witness resides to take the evidence of such
witness’ (s. 154(1), CPC).
65. When a commission for the examination of a witness has been issued,
the parties may examine the witness in two ways. They may either send
a list of questions that have been reviewed and approved by the trial
court to the court commissioned to examine the witness. These

questions are referred to as interrogatories. The commissioned court
will then examine the witness upon these interrogatories. Alternatively,
the parties may choose to appear, either in person or through an
advocate, before the commissioned court and examine the witness (s.
155, CPC).
66. Sections 154 -157 of CPC on the issuance of a commission do not apply
outside of Kenya (Thuita Mwangi & 2 Others v R High Court at
Nairobi Criminal Revision Case No. 202 of2015).
67. Where the witness is overseas, a request to examine the witness may be
made by a ‘Competent Authority’ to the country in which the person
resides (ss. 7(1)&14(1), Mutual Legal Assistance (MLA)). The
‘Competent Authority’ is defined as the Attorney-General, any criminal
investigation agency established by law, or any other person designated
as such by the Attorney-General by notice in the Gazette (s.2,MLA).The
Director of Public Prosecutions was designated a Competent Authority
by Gazette Notice 1847 of February 7th 2013 (Gazette Vol. CXV No.
22). Any law enforcement agency, prosecution, or judicial authority
competent under Kenyan law may make a request to the Competent
Authority for mutual legal assistance (s. 7(2),MLA).
Vulnerable Witnesses
68. Vulnerable witnesses in court proceedings are persons who require

support and special measures to effectively participate in the court
process.
69. A vulnerable victim is defined as one who may need support or special
measures due to age, gender, disability or other special characteristics
that may be prescribed by regulations under the Victim Protection Act
(s. 2, VPA). At the time of publishing the Bench Book regulations under
the Victim Protection Act have not been made.

70. The court of its own motion or on application by any party may declare
witnesses vulnerable because of: physical, intellectual, or psychological
impairment;age;dependencyontheaccused;trauma;disability;cultural or
religious differences; gender; language; race; the nature of the offence
committed against them; or health status (s. 17, VPA). With respect to
trials under the Sexual Offences Act (SOA), a witness may be declared
vulnerable on the basis of the possibility of intimidation, the
relationship of the witness to any party to the proceedings, the nature of
the subject matter of the evidence, or any other factor the court
considers relevant (s. 31(2), SOA).
71. The court should determine whether a witness is vulnerable under the
VPA during the pre-trial conference, or at the commencement of trial if
a conference is not held, in order to ensure that necessary support and
protection mechanisms are put into place. For instance, where
intermediaries are required, or witnesses need to be placed under the
witness protection scheme, orders should be made prior to trial to
prevent unnecessary delay of the trial. However, applications or orders
for protective and support measures for vulnerable witnesses can be
made at any time during the trial (See for instance Rule 9(b), Sexual
Offences Rules of Court).
Persons with Disabilities
72. Persons with disability are individuals who bear ‘a physical, sensory,
mental or other impairment, including any visual, hearing, learning or
physical incapability, which impacts adversely on social, economic or
environmental participation’ (s. 2, PWDA). The court must ensure that
persons with disabilities are treated with dignity and are addressed in a
manner that is not demeaning (art. 54(1)(a), CoK; s. 186(h),CA).

73. The court must be guided by the principle of reasonable accommodation
of persons with disabilities, which requires ‘necessary and appropriate
modification and adjustments to ensure to persons with disabilities the
enjoyment or exercise on an equal basis with others all the human rights
and fundamental freedoms’.1 The court’s obligation to ensure this
reasonable accommodation is hinged on the right to dignity (art. 28,
CoK), freedom from direct and indirect discrimination (art. 27, CoK)
and the State’s obligation to ensure access to justice (art. 48, CoK).
Certain practices, which are broadly applied, may without intention
hinder persons with disabilities from engaging meaningfully in the court
processes. For instance, requiring a person to address the court
personally without the help of an intermediary might, even if
unintentionally, affect the participation of a persons with mental
disabilities. Similarly, where special measures are not taken to
accommodate persons with disability their dignity may be undermined.
Courts must therefore seek to accommodate persons with disabilities as
much as possible.
74. Persons with disabilities are entitled to reasonable access to all places
(art. 54(1)(c), CoK). The right to access to justice encompasses physical
access to courts (art. 48, CoK; Paul Pkiach Anupa & Another v
Attorney-General & Another High Court at Nairobi Petition No. 93 of
2011). Where the physical infrastructure is an impediment, courts
should adopt measures to enhance accessibility to courtrooms (s. 21,
PWDA).
75. Courts should provide necessary facilities and assistance for persons
with disabilities to ensure their participation. Such facilities and
assistance include sign language interpreters, braille services, physical
guide assistance and intermediaries (art.54 (1), CoK; s. 38(2)(b),
PWDA; s. 3(2), Court of Appeal (Organization and Administration)
Act).
1 UN General Assembly, Convention on the Rights of Persons with Disabilities(adopted by

the General Assembly, 24 January 2007),A/RES/61/106, art. 2. Kenya ratified the
Convention on 19 May 2008.

76. Attention should be given to cases involving disabled persons to ensure
that they are dealt with expeditiously, bearing in mind their particular
disability (s. 38(4), PWDA).
Children
77. A child is any person under the age of eighteen (s.2, CA). Where the
age of the witness is unknown, the court should request an age
assessment.
78. Where a child is called as a witness in proceedings in which a child is

the accused, a child is the victim, or that involves conduct contrary to
decency or morality, the court may instruct persons who are not
members or officers of the court, or parties to the case, to be excluded
from the court (s. 75, CA; R v Ali Hassan High Court at Nairobi
Criminal Case No. 11 of 2013). However, it is not mandatory to hear all
proceedings involving children in camera; the court has the discretion to
determine when it is in the best interest of the child to do so (art. 50(8),
CoK; s. 75, CA;R v Ali Hassan High Court at Nairobi Criminal Case
No. 11 of 2013).
79. The court should adopt measures to protect a child when necessary.
These measures include allowing the child to give evidence in a witness
protection box or through an intermediary, concealing the identity of the
child, using pseudonyms, or providing testimony via videolink (s. 31(1),
SOA; s. 4(3), WPA).
80. Children who require assistance to communicate with the court must be
allowed to give evidence with the help of intermediaries (art. 50(7),
CoK). The court environment should be friendly to enable children to
participate fully without fear. Simple language that can be understood
by children giving evidence should be used; technical terms should not
be used.

Victims of Sexual Offences
81. A victim of a sexual offence is a person who has suffered physical and
emotional harm as a result of an offence of a sexual nature.
82. The court may declare a witness vulnerable if the witness is the victim
of a sexual offence (s. 31(a), SOA). A vulnerable witness may be
protected through various means including:
i) Being allowed to give evidence from behind a witness protection
box;
ii) Giving evidence through an intermediary;
iii) Conducting proceedings in camera;
iv) Prohibiting publication of information that may lead to the
identification of the witness or the witness’s family; or
v) Any other measure which the court may deem appropriate (s.
31(4), SOA; r. 6 Sexual Offences Rules of Court; R v Patrick
Mutisya Muthiani High Court at Nairobi Misc. Criminal
Application No. 207 of 2015; Joseph Kipkoech Boyon v R
Criminal Appeal No.70 of 2012 High Court at Kericho).
83. The court may allow the expedited testimony of a witness where the
interests of justice so demand (r. 3, Sexual Offences Rules of Court).
For instance, where the witness is in court, an adjournment ought not to
be granted unless the interests of justice so demand. Also, to the extent
possible, the testimony of such a witness should take place in a single
hearing.
84. Victims of sexual offences are likely to use terms used in ordinary
language as opposed to the use of legal terms, such as ‘defiled’. Trial
courts are guided to record the precise words used by the victim
(Samson Oginga Ayieyo v R Court of Appeal at Kisumu Criminal

Witness Protection
85. The Witness Protection Agency has established measures to ensure the
safety and welfare of protected persons (s. 4(1) & (2), WPA).
86. Witnesses are entitled to protection under the Witness Protection Act if
they face a potential threat or risk because of their testimony (s. 3,
WPA). Family members of the witness may also be protected (s. 3(2)(a),
WPA).
87. To ensure protection during court proceedings, the court may be

requested to hold proceedings wholly or partially in camera; use
pseudonyms; redact information that may lead to the identification of a
witness; conduct proceedings via video link; or employ measures to
obscure or distort the identity of the witness (s. 4(3), WPA; In the
Matter of Application for orders for Witness Protection High Court at
Nairobi Misc. Case No. 30 of 2014).
High Court Orders of Protection
88. The High Court may order that a new identity be created for a witness
or relatives in need of protection. This may include ordering that the
new identity be listed in the registers of births or marriages and the old
identity be listed in the register of deaths (s. 14, WPA). To make such an
order, the court must be satisfied that the witness, or a person related to
or associated with the witness, is in need of protection. The court must
also be satisfied that, pursuant to section 7 of the WPA, the person has
entered into the requisite memorandum of association with the Witness
Protection Agency on the terms of the protection and that the person is
likely to adhere to those terms (s. 16, WPA; Application for orders of
Witness Protection High Court at Naivasha Criminal Application No.45
of 2015; In the Matter of Application for orders for Witness Protection
High Court at Nairobi Misc. Case No. 30 of 2014).

IX. Taking Evidence
Language of the Trial
89. The language used in the trial must be indicated in the court record
(Swahibu Simiyu & Another v R Court of Appeal at Kisumu Criminal
Appeal No.243 of 2005). Further, the language used must be understood
by the accused and, if not, be interpreted to a language understood by
the accused (s. 198(2), CPC). If the accused is represented by counsel
and the evidence is presented in a language other than English that
counsel does not understand, the evidence must be interpreted into
English (s. 198(2), CPC).
Taking the Evidence of Children
90. Section 19 of the Oaths and Statutory Declaration Act sets out the
procedure for taking evidence from a ‘child of tender years’. Although
the Act does not define the term ‘child of tender years’, the Children
Act section 2 defines this as a child under the age of ten. The definition
in the Children’s Act, however, has been held not to apply to section 19
of the Oaths and Statutory Declaration Act (Maripett Loonkomok v R
Court of Appeal at Mombasa Criminal Appeal No. 68 of 2015; Patrick
Kathurima v R Court of Appeal at Nyeri Criminal Appeal No. 131 of
2014; Samuel Warue Karimi v R Court of Appeal at Nyeri Criminal
AppealNo.16of2014).The courts have held that a child of tender years
for purposes of this Act is one under the age of fourteen (Kibageny Arap
Kolil v R(1959) EA82; Patrick Kathurima v R Court of Appeal at Nyeri
Criminal Appeal No. 131 of 2014).
91. Where a child under the age of fourteen is called as a witness, the court
must first conduct a voir dire examination before allowing the child to
testify in order to:

i) Determine whether the child understands the nature of an oath, in
which case evidence may be received on oath.
ii) Ascertain whether, if the child does not understand the nature of
an oath, the child possesses sufficient intelligence and
understands the duty to tell the truth. If in the affirmative, the
evidence may be received though not given on oath (s. 19(1),
Oaths & Statutory Declarations Act; Maripett Loonkomok v R
Court of Appeal at Mombasa Criminal Appeal No. 68 of 2015).
92. There is no particular format for conducting and recording a voir dire. It
could be a dialogue in which the court records questions posed to the
child and the child’s answers are recorded verbatim in the first person.
Alternatively, the court may choose to omit the questions put to the
witness but record the answer verbatim in the first person (James
Mwangi Muriithi v R Court of Appeal at Nyeri No. 10 of 2014;
Maripett Loonkomok v R Court of Appeal at Mombasa Criminal
Appeal No.68 of 2015).
93. Examples of questions that may be put to the child in a voir dire
examination include:
i) the name and age of the child,
ii) the child’s school and class,
iii) whether the child attends church or mosque or other religious
institutions,
iv) whether the child knows the importance of telling the truth or the
consequences of not being truthful.
94. No corroboration is required if the evidence of the child is sworn

(Kibangeny arap Kolil v R 1959 EA 92). Unsworn evidence of a victim
who is a child of tender years must be corroborated by other material
evidence implicating the accused person for a conviction to be secured
(Oloo v R (2009) KLR).

95. However, in cases involving sexual offences, if the victim’s evidence is
the only evidence available, the court can convict on the basis of that
evidence provided that the court is satisfied that the victim is truthful (s.
124, Evidence Act). The reasons for the court’s satisfaction must be
recorded in the proceedings (Isaac Nyoro Kimita v R Court of Appeal at
Nairobi Criminal Appeal No. 187 of 2009; Julius Kiunga M’birithia v R
High Court at Meru Criminal Appeal No. 111 of 2011).
96. The evidence of a child, sworn or unsworn, received under section 19 of

the Oaths and Statutory Declarations Act is subject to cross-
examination pursuant to the right to fair trial, which encompasses the
right to adduce and challenge the evidence produced against the accused
(art. 50(2)(k), CoK).
Taking the Evidence of Persons with Mental Disabilities
97. Section 125(2) of the Evidence Act recognizes that generally a person
suffering from a mental disorder is a competent witness unless such
person, because of the mental illness, is prevented from understanding
the questions put to him or her and giving rational answers to the
questions.
98. When persons with mental disabilities are giving evidence, it is good
practice for them to be supported by an intermediary, unless their
condition does not require such assistance. The court should also
observe the conduct of the witness to determine whether, with the
support of an intermediary, the person understands the questions put to
them and whether the witness’s response is understood. In David
Ndumba v R (Court of Appeal at Nyeri Criminal Appeal No. 272 of
2012) the court noted that the trial court had rightly made observations
as to whether the complainant, who had mental disabilities, understood
the questions and gave rational responses.

Taking Evidence through Intermediaries
99. Article 50(7) of the Constitution recognizes the use of intermediaries.

They are essential in ensuring due process and equal access to justice by
vulnerable persons. Possible intermediaries include a parent, relative,
psychologist, counsellor, guardian, children’s officer or social worker
(s. 2, SOA).
100. An intermediary is a medium through which the accused person or

complainant communicates to the court (art. 50(7), CoK; ss. 31(4) &
31(7), SOA). The intermediary may, for instance, point out that a
question is too complex for a person with an intellectual disability. In
such a case, the intermediary may offer suggestions on how to frame it
better. The intermediary does not take the place of the vulnerable
witness but simply communicates what the witness wishes to say.
Further, the intermediary must not instruct the witness on what evidence
to give (r. 7(10), Sexual Offences Rules of Court). Since the
intermediary acts as a mouthpiece for the vulnerable witness, the
implication is that an intermediary can also be an independent witness
giving his or her own version of the evidence in respect to the same case
(MM v R Court of Appeal at Nairobi Criminal Appeal No. 41 of 2013).
Evidence from an intermediary who is also a witness should be taken
before the person acts as an intermediary.
101. In addition to facilitating communication, an intermediary may provide

other forms of support such as requesting for a break when the
vulnerable witness needs one. An intermediary may also assist a
vulnerable witness, such as one with a psychosocial disability, to
overcome anxiety.
102. Both the complainant and the accused person can be assisted by an
intermediary (art. 50(7), CoK). The use of an intermediary may be at the
request of the prosecutor, witness, or on the court’s own motion (s.
31(4) (c), SOA; rr. 7(1) & 7(2), Sexual Offences Rules of Court;
Prevention of Torture Act, s. 16(5)).
103. The appointment of an intermediary should be done before the
testimony of the intended witness (MM v R Court of Appeal at Nairobi
Criminal Appeal No. 41 of 2013). In MM v R, the court held that before
appointing an intermediary, the court must establish and put on record
the vulnerability of the witness and ascertain the ‘expertise, possession
of special knowledge or relationship’ of the prospective intermediary.
Further, before acting as an intermediary, the person must take an
appropriate oath or affirmation to communicate the vulnerable witness’s
evidence correctly. The court also stated that the trial court must
provide guidance as to the extent of the intermediary’s participation in
the proceedings.
Expert Evidence
104. Where the court is required to form an opinion on matters specified in

section 48 of the Evidence Act, the court may receive evidence from
experts who are ‘specially skilled in such foreign law, science or art, or
in questions as to identity, or genuineness of handwriting or fingerprint
or other impressions’ (Maina Thiongo v R High Court at Nyeri
Criminal Appeal No. 83 of 2015). Expert witnesses should satisfy the
court that they are specially skilled (Samson Matoke Machoka v R
Court of Appeal at Kisumu Criminal Appeal No. 291 of 2012; Mutonyi
v R Court of Appeal at Nairobi Criminal Appeal No. 92 of 1981; [1983]
KLR).
105. The opinion evidence given by an expert is not binding on the trial
court. In Samson Tela Akute v R(High Court at Nairobi Criminal
Appeal No. 844 of 2004), the court held that a magistrate had
abandoned his duty to make an independent finding when he relied
wholly on the opinion of the expert.

106. Where the court receives conflicting expert evidence, the court is
required to assess the evidence and form its own opinion. In doing so,
the court must state the reasons informing its opinion (Kenya Ports
Authority v Modern Holdings [E.A.] Limited Court of Appeal at
Mombasa Civil Appeal No. 108 of 2016).
Electronic and Digital Evidence
107. In any legal proceedings, electronic messages and digital material are
admissible as evidence (s. 78A(1)&106B(1), Evidence Act). The fact
that such electronic and digital evidence is not in its original form does
not by itself render the evidence inadmissible (s. 78A(2), Evidence Act).
The weight accorded to electronic and digital evidence depends on its
reliability. Reliability, in turn, depends on how the evidence was
generated, stored, communicated and maintained (s. 78A(3)(a) & (b),
Evidence Act). Further, the identification of the originator of the
evidence impacts on the weight attached to the electronic and digital
evidence (s. 78A(3)(c), Evidence Act). When determining the weight of
the evidence, the court may also be informed by any other relevant
factors (s. 78A(3)(c), Evidence Act).
108. ‘Computer outputs’ are defined as ‘any information contained in an

electronic record which is printed on paper, stored, recorded or copied
on optical or electro-magnetic media produced by a computer’ (s.
106B(1), Evidence Act).
109. The conditions for admissibility of computer outputs are set out in
section 106B(2) of the Evidence Act (R v Mark Lloyd Steveson High
Court at Kiambu Criminal Revision 1 of 2016). When producing
computer outputs as evidence, a certificate confirming compliance with
the conditions in section 106B(2) of the Evidence Act is required (s.
106B(4)(c), Evidence Act). The certificate must also identify the
electronic record and provide particulars of any device involved in the

production of that electronic record (s. 106B(2)(a) & (b), Evidence Act;
R v Mark Lloyd Steveson High Court at Kiambu Criminal Revision 1 of
2016;R v Barisa Wayu Mataguda High Court at Mombasa Criminal
Case No.6 of 2008). The certificate must be signed by a person in a
responsible position relating to the operation of the device or
management of the relevant activities (s. 106B(4)(d), Evidence Act).
Teleconferencing and Video Conferencing
110. A court may receive oral evidence through teleconferencing (s. 63A,
Evidence Act). In Livingstone Maina Ngare v R High Court at Nairobi
Criminal Revision No. 88 of 2011 the court allowed witnesses to give
evidence through videolink.
111. There are special circumstances where public policy and the interests of
justice may dictate that a witness does not have to appear in person and,
thus, video conferencing would be the best alternative. Special
circumstances might involve instances where there are vulnerable
witnesses who might be intimidated by the hearing, where the witnesses
fear for their lives, or where securing the personal attendance of such
witness will unduly delay the proceedings.
112. Admission of electronic evidence is a matter that needs to be

determined in each trial. Under section 63A of the Evidence Act, a party
must submit an application to the court requesting that evidence be
provided through video or teleconferencing. If possible, the decision to
allow video or teleconferencing evidence should be done at the pre-trial
conference to enable the court to make the necessary arrangements,
such as provision of the video conferencing equipment.
113. Where the court allows video conferencing, it must put in place
measures to ensure that the videoconferencing session is as similar as
possible to the usual practice when evidence is given in open court. The
court should also ensure that there are procedures in place to assist with
the
administering of oath, production of exhibits, and the non-interference
of the witness at the remote site. The examination and cross
examination of a witness at the remote site should follow as closely as
possible the practice adopted when a witness is in the courtroom.
Exhibits
114. Exhibits marked for identification must be formally produced for them
to be considered evidence. In R v Amani David Dena (High Court at
Mombasa Criminal Case No. 3 of 1999), the court said that exhibits
should be produced by either the Officer who took them into his
custody or the Investigating Officer. Once marked for evidence, the
exhibits must then be produced; it is during the production that their
authenticity and relevance are established.
115. The court should ensure that the record of exhibits is prepared
simultaneously and accurately during the trial (Joshua Karianjahi
Waiganjo v R High Court at Naivasha Criminal Appeal No.141 of
2015).
116. Exhibits should not be released until the right of appeal has been
exhausted (Simon Okoth Odhiambo v R High Court at Nairobi Criminal
Appeal No. 223 of 2003). In Simon Okoth Odhiambo the court held that
it was wrong for the trial court to have ordered the release of documents
even before it had delivered judgment. It is good practice for
photographic evidence to be obtained in a bid to preserve evidence;
courts should encourage photographic evidence particularly where the
other evidence cannot be stored on the court premises.
117. It is necessary to produce exhibits physically in court. However, there

are instances where it may be impossible to do so. Such instances, as
pointed out in Andrea Nahashon Mwarisha v R (Court of Appeal
Criminal Appeal No.50 of 2013), include exhibits that ‘are immovable,
perishable or on transit, a tool of trade…those which may pose
logistical or health challenges, for instance, a dead body’. In R v John
Nganga
Mbugua High Court at Nairobi Misc. Criminal Application No. 69 of
2014, the court allowed an application to release an income-generating
motor vehicle and ordered that photographic evidence of that exhibit be
obtained.
118. Production of narcotics and psychotropic substances as exhibits should

comply with section 74 of the Narcotic Drugs and Psychotropic
Substance (Control) Act, which requires an analyst to weigh the
substances in the presence of the accused and the advocate representing
the accused. During trial, a sample of the substance and the analyst’s
certificate are to be tendered as evidence. However, in Moses Banda
Daniel v R (Court of Appeal at Mombasa Criminal Appeal No.62 of
2015) the court held that this procedure is more relevant in cases
involving large consignments of drugs, and it was unrealistic to subject
the drugs in question, which were a small quantity valued at Kshs. 2300,
to this rigorous procedure.
Confession
119. A confession means words from which inference of guilt of the maker
may be made (s. 25, Evidence Act). In R v Mark Lloyd Steveson (High
Court at Kiambu Crim. Revision No. 1 of 2016) the court highlighted a
distinction between self-incriminating statements or conduct made after
the commission of a crime and similar statements or conduct made
during the commission of a crime. The former may amount to
confessions while the latter do not. The court explained that, for
instance, statements heard by an investigating officer which amount to
hate speech, for which the person is charged, cannot be termed as a
confession.
120. An accused has the right not to be compelled to make any confession or
admission that could be used in evidence against him or her (art. 49(1)
(d), CoK).Generally, confessions made by an accused person are not
admissible in Kenya unless they are made strictly in accordance with
the law. The statement must be made either in court before a judge or
a magistrate, or made to a police officer (other than the investigating
officer) with a rank above Inspector of Police in the presence of a third
party of the person’s choice (s. 25A(1), Evidence Act).
121. Where the confession is not made in court, there cording officer must
ensure that the accused person:
i) chooses his or her preferred language of communication;
ii) is provided with an interpreter free of charge where he or she
does not speak Kiswahili or English;
iii) is not subjected to any form of coercion, duress, threat, torture or
any other form of cruel, inhuman or degrading treatment or
punishment;
iv) is informed of the right to have legal representation of his or her
own choice; and
v) nominates a third party to be present during the confession (r. 4,
Evidence (Out of Court Confessions) Rules, 2009).
122. A confession obtained from a person arrested outside Kenya, for the
purposes of being arraigned in a Kenya, must be obtained in a manner
that substantially conforms to the law in Kenya. The Kenyan Court will
be the final determinant of the admission of such evidence (r. 12,
Evidence (Out of Court Confessions) Rules, 2009).
123. At the conclusion of the recording, the accused must certify that the
recorded confession is made of his or her free will and that he or she has
been granted an opportunity to make clarifications, if any (r. 8, Evidence
(Out of Court Confessions) Rules, 2009).
124. Confessions obtained in contravention of the safeguards set out in

sections 25 to 32 of the Evidence Act and under the Evidence (Out of
Court Confessions) Rules are inadmissible (Caroline Wanjiku Wanjiru
& Another v R High Court at Nairobi Criminal Appeal No. 87 of 2012).
Similarly, confessions obtained in violation of the accused’s rights

must be excluded if the admission of that evidence would render the
trial unfair, or undermine the administration of justice. In R vElly Waga
Omondi (High Court at Nairobi Criminal Case No. 24 of 2012), a
confession allegedly obtained through torture was held inadmissible.
The court also reiterated that where it is alleged that a confession has
been obtained illegally, the prosecution bears the burden of proving that
it was obtained in compliance with the law.
125. To satisfy itself that a confession complies with the Evidence Act and
the Evidence (Out of Court Confessions) Rules, the court should
conduct a voir dire to determine whether the confession was obtained
voluntarily. Where an accused retracts a confession, the prosecution
bears the burden of proving that the laws regarding confessions were
complied with. In R v Elly Waga Omondi (High Court at Nairobi
Criminal Case No. 24 of 2012), the court held that the recording officer
violated the rules governing confessions because a third party was not
present when the confession was taken and because the officer had
failed to prove compliance with the law.
126. The safeguards to ensure that confessions are obtained voluntarily apply
to confessions received out of court as well as those received in court.
In Kanini Muli v R (Court of Appeal at Nairobi Criminal Appeal No.
238 of 2007), the court was not satisfied that the confession made in
court during an inquest was voluntary. The accused person claimed to
have made the confession following threats from clan elders. The court
held that confessions taken in court are not exempt from section 26 of
the Evidence Act, which renders a confession inadmissible if it was
obtained by a person in authority through inducement, threat, or
promise relating to the charges.

127. Evidence demonstrating that a confession was not obtained voluntarily
should still be received even if the court had already held that the
confession was admissible (Kanini Muli v R Court of Appeal at Nairobi
X. Participation of Victims During Proceedings
128. A victim is any natural person who suffers injury, loss, or damages as a
consequence of an offence (s.2, VPA). A victim includes both the
primary victim and the family victim (s. 329A, CPC). A victim is
required to establish their personal interest in the proceedings in order to
participate (Mary Kinya Rukwaru v Raghunathan Santosh & Another
High Court at Nairobi Criminal Application No. 169 of 2014).
129. When dealing with victims, courts must adhere to the general principles
set out in section 4 of the VPA in order to accord adequate support to
the victim and to treat the victim with dignity.
130. Courts should allow victims to express their views before any decision
that affects them is made (s. 4(2)(b), VPA). For instance, decisions on
whether to release the accused on bail, sentencing, withdrawal of the
prosecutions, and whether to grant an adjournment affect victims.
Victims may express their views and concerns during the trial at
appropriate stages determined by the court (s. 9(2)(a), VPA; Sentencing
Policy Guidelines pp. 22.27–22.30; I.P. Veronica Gitahi & Another v R
Court of Appeal at Mombasa Criminal Appeal No. 23 of 2016).
131. Victims may be heard personally or through the public prosecutor or

intermediary (art. 50(7), CoK; I.P. Veronica Gitahi & Another v R Court
of Appeal at Mombasa Criminal Appeal No. 23 of 2016).
132. In addition, victims may participate indirectly in a criminal trial through

private legal counsel who hold a ‘watching brief’ on their behalf (s.
9(1)(a), VPA; I.P. Veronica Gitahi & Another v R Court of Appeal at
Mombasa Criminal Appeal No. 23 of 2016).

133. Victims have a ‘right to privacy-from the media, unreasonable intrusion
from health professionals, of confidentiality of their communication
with victim support service providers or from any other person, and
confidentiality’ (s.8, VPA). The court should protect victims from undue
intrusion into their personal affairs in the course of the proceedings. The
court may hold proceedings in camera where necessary to protect the
privacy of the victims (s. 31(4)(c), SOA).
134. Further, victims should be treated with respect and dignity (s. 4, VPA).
The court, for example, should take into account the vulnerabilities of
the victim.
135. Courts should also create an environment that is conducive for the
victims to testify freely and without intimidation.
136. The court should consider the views and concerns of the victims (s. 9(2)
(a), VPA), including during sentencing (s. 12(1), VPA) The court,
however, is not obliged to accept those views and concerns. And the
court must ensure that the views are presented in a way that is neither
prejudicial to the rights of the accused nor inconsistent with a fair trial
(s. 9(2)(b), VPA).
XI. Criminal Responsibility of a Child
137. The Penal Code states that a person under the age of eight cannot be
held criminally responsible for any act or omission (s. 14(1), PC).
138. A person under the age of twelve cannot be held criminally responsible
for any act or omission, unless it is proved that the person had capacity
to know that the act or omission was wrong (s. 14(2), PC).
139. Section 14(3) of the Penal Code sets out an unrebuttable presumption
that a male under twelve is incapable of having any carnal knowledge
(R v E M High Court at Embu Criminal Revision Case No. 14 of 2015).

Therefore, a boy under 12 cannot be convicted of any offence, such as
rape or defilement, that requires proof of penile penetration. However,
he could be convicted of a lesser offence, such as indecent assault.
XI. The Hearing
Conduct of the Prosecution Case
140. The prosecution must prove the guilt of the accused beyond reasonable
doubt (Sawe v R Court of Appeal at Nairobi Criminal Appeal No. 2 of
2002; DPP v Woolmington [1935] AC 462). The expression, ‘burden of
proof’, entails two different concepts: ‘legal burden of proof’ and
‘evidential burden’ (Peter Juma & Others v R High Court at Bungoma
CriminalAppealNo.144of2011). Generally, the legal burden of proving
guilt is borne by the prosecution and it never shifts to the accused. In
certain instances however, the law places the evidential burden on the
accused to explain specific matters within his or her knowledge, such as
when the defence of insanity is raised, where the doctrine of recent
possession applies (David Mutune Nzongo v R Court of Appeal at
Nairobi Criminal Appeal No.536 of 2010), or the accused raises an alibi
defence (Wilson Wanjala Mkendeshwo v R Court of Appeal at Nakuru
Criminal Appeal No. 97 of 2002). Even when the evidential burden is
placed on the accused, it is incumbent upon the prosecution to discharge
the legal burden of proof, taking the evidence as a whole (s. 111,
Evidence Act).
141. The accused’s decision to remain silent should not give rise to any
inference as to guilt, which must always be proved by the prosecution.
Reasonable doubt may result from gaps in the prosecution’s evidence.
Therefore, an accused person may remain silent and still be entitled to
an acquittal. In Dickson Nyakundi v R (High Court at Nakuru Criminal
Appeal No.29 of 2014), the High Court disagreed with the trial court,

which convicted the accused person on the basis that ‘the accused’s
silence had not created reasonable doubt’. The conviction was quashed
as the prosecution had not proved guilt beyond reasonable doubt.
142. Related to the right to silence is the right to refuse to give self-
incriminating evidence. However, this latter right does not protect the
accused person from forensic examinations, such as DNA testing and
finger printing. For example, in Boniface Kyalo Mwololo v R (Court of
Appeal at Nairobi Criminal Application No. 1 of 2016) the court held
that where a person is charged with a sexual offence, a court may direct
an appropriate forensic sample for purpose of forensic and other
scientific testing, including a DNA test (r. 5, Sexual Offences (Medical
Treatment) Regulations).
Opening Speech
143. The prosecution may make an opening address when it opens the case
against the accused person (s. 300, CPC). The opening address sets out
facts which the prosecution seeks to prove and ought not to contain any
reference to evidence whose admissibility is open to challenge
(Kanyoro Kamau v R [1965] EA 501). Section 300 of the CPC is
merely directory, and the failure of the prosecution to start its case with
an opening address is not fatal (Kenga Chea Thoya v R Court of Appeal
at Mombasa Criminal Appeal No. 375 of 2006).
144. However, it is good practice for the prosecution to deliver a clear and
succinct opening statement that presents a good overview of the case
and provides focus for the trial. Courts should not treat matters raised in
the opening statement as evidence.

Choice of Witnesses
145. The prosecution has a duty to call all witnesses necessary to establish
the truth, even though the evidence may be inconsistent (Bukenya &
Others v Uganda [1972] EA 549). The prosecution need not call all
witnesses who may have relevant factual information (s. 143, Evidence
Act). In Kossam Ukiru v R Court of Appeal at Kisumu Criminal Appeal
No.266 of 2011,for example, the court held that the prosecution should
exercise its discretion in deciding the witnesses that are relevant to
prove the guilt of the accused. In Oluoch v R (1985) KLR 549, the court
noted that a fact may be proved by a single witness. But an
identification that is supported by a single witness must be treated with
the greatest care.
146. In John Waweru Njoka v R Court of Appeal at Nyeri Criminal Appeal

No. 115 of 2001 (2005) KLR 175 and Bare Mohamed v R(High Court at
Garissa Criminal Appeal No. 106 of 2014), the courts, however, noted
that where the prosecution evidence is insufficient to support a
conviction and a material witness is not called, the court may infer that
the evidence of that witness would not have favoured the prosecution.
Order of Witnesses
147. The prosecution determines the order in which the prosecution

witnesses are to appear (Roy Richard Elirema & Another v R Court of
Appeal in Mombasa Appeal No. 67 of 2002). There is no law requiring
witnesses to be called in any particular order. However, it is desirable to
have the complainant or a key witness give evidence first and lay the
basis for the prosecution case. The matter may proceed even without the
evidence of the complainant.

Examination in Chief
148. The DPP starts by presenting witnesses in the examination in chief. The
witnesses testify on the facts that the prosecution intends to rely on. At
this stage, leading questions are not allowed except in the formal
introductory part of the testimony, like the witness’s name (s. 150,
CPC). Leading questions are questions that suggest the desired answer
or assume the existence of disputed facts about which the witness has
been called to testify.
Cross examination by Defence
149. Upon giving the evidence-in-chief, the witness is cross-examined by the

accused person or the defence advocate (s. 145(2), Evidence Act). The
right of the accused or the accused’s advocate to cross-examine
witnesses called by the prosecution is guaranteed by the Constitution
(art. 50(2)(k), CoK). A denial of this right will vitiate a conviction
(Simon Githaka Malombe v R Court of Appeal at Nyeri Criminal
Appeal No. 314 of 2010). In a joint trial, all accused persons have the
right to hear all evidence and cross-examine all witnesses (Stephen v R
(1973) EA22).
150. Where an accused person is not represented by an advocate, the court

must, at the close of examination, enquire whether the accused wishes
to put any questions to the witness, and the court must record the
answer (s. 208(3), CPC; Jairus Mukolwe Ochieng v R Court of Appeal
at Nairobi Criminal Appeal No.217 of 2007; Simon Githaka Malombe v
R Court of Appeal at Nyeri Criminal Appeal No. 314 of 2010).
151. Leading questions are allowed in cross examination.

Re-examination
152. After cross-examination, the witness may be asked further questions (s.
145(3), Evidence Act). Re-examination must be confined to matters that
arose in cross-examination. New matters can only be introduced with
leave of the court.
153. Once the prosecution has called all its witnesses, it closes its case. The
prosecution may also request for an adjournment to call further
witnesses. Where the court denies such an application, it must note that
fact on the record.
Questions from the Court
154. The court may put any question to the witnesses that are necessary for
the just decision of the case. The court’s questions should clarify issues
and not fill gaps in the evidence; they should be posed cautiously so as
not to lead evidence.
Prima Facie Case or No Case to Answer
155. Upon the close of the prosecution’s case, the court should invite the
accused person to make submissions if he or she wishes. The court is
then required to make a determination as to whether a prima facie case
has been established by the prosecution. If it finds that a prima facie
case has been made out against the accused person, the hearing of the
defence case then commences (ss. 211&306,CPC).
156. A prima facie case is ‘one on which a reasonable tribunal, properly

directing its mind to the law and the evidence, could convict if no
explanation is offered by the defence’ (Ramanlal Trambaklal Bhatt v R
[1957] EA 332; Anthony Njue Njeru v R Court of Appeal at Nairobi

157. If the court concludes that a prima facie case has been made, it should
not give reasons for that finding, because it may appear as if the court
has made up its mind even before hearing the defence (Eustace Kibera
Karimi v R High Court at Nairobi Criminal Appeal No. 911 of 1978;
Festo Wandera Mukando v R[1980] KLR 103;Anthony Njue Njeru v R
158. If a prima facie case is not established at the close of the prosecution
case, the court must acquit the accused person (ss. 210 & 306(1), CPC).
R v Wachira [1975] EA 262 noted that a court should only acquit at that
stage ‘if there is no evidence of a material ingredient of the offence or if
the prosecution has been so discredited and the evidence of their
witnesses so incredible and untrustworthy that no reasonable tribunal,
properly directing itself, could safely convict’. The court should pay
attention to the evidence before putting an accused on their defence;
there must be a legal basis for doing so (Murimi v R 1967 EA 542, R v
Wachira, above and R v Kidasa [1973] EA 368).
Conduct of Defence Case
159. Upon finding that the accused has a case to answer, the court must
inform the accused person of the following rights (ss. 306(2) & 211,
CPC; Hawo Ibrahim v R Court of Appeal at Nyeri Criminal Appeal No.
46 of 2014):
i) To address the court personally or through an advocate
ii) To give sworn or unsworn evidence
iii) To call witnesses
iv) To remain silent (art. 50 2(i), CoK).
160. The court must explain to the accused person that, if he or she opts to
give evidence under oath from the witness box, he or she would be
cross-examined. If the accused person opts to make an unsworn
statement from the dock, he or she would not be cross-examined but
may be
asked questions by the court (s. 211, CPC). If the accused person elects
not to give evidence, make an unsworn statement or adduce evidence,
the prosecutor may sum up the prosecution case against the accused (s.
306(3), CPC). The accused’s response in electing how to proceed must
be recorded (John Waweru Njoka v R Court of Appeal at Nyeri
Criminal Appeal No. 115 of 2001 (2005) KLR 175). Where the accused
gives an unsworn statement, the statement should be recorded in full by
the court.
161. No adverse inference should be drawn by the court if the accused

person opts to give unsworn evidence (Amber May v R Court of Appeal
at Nairobi Criminal Appeal No. 24 of 1979; Winston s/o Mbaza v R
[1961] EA 274; Johnson Muiruri v R [1983] KLR 445; Odongo v R
[1983] KLR 301). Further, the court should not prompt the accused
person to either add or subtract from an unsworn statement. Generally,
an unsworn statement has limited probative value because its veracity
has not been tested through cross examination (Mercy Kajuju & 4
Others v R High Court at Meru Criminal Case No. 186 of 2006).
However, the statement is not worthless and should be taken into
consideration in relation to the whole evidence.
Defence Witnesses
162. The accused retains his or her right to call witnesses. The accused
person must be availed adequate time to prepare a defence in
accordance with Article 50(2)(c) of the Constitution. If the accused
person is the only witness, then he or she is called as a witness upon the
finding of the case to answer (s. 160,CPC).
163. Where the accused elects to call other witnesses, the accused should give
evidence first, followed by the witnesses who should remain outside the
court as the accused gives evidence. This is important in order to

maintain the reliability of the evidence. The defence is subject to the
same rules as the prosecution in terms of examination in chief, cross
examination, and re-examination.
Close of the Defence Case
164. Where the defence closes its case prematurely, for example because of
denial of an adjournment to call further witnesses, or for want of
attendance of witnesses or for other reason, the court should note that
fact on the record.
Evidence in Reply
165. If the accused provides evidence in his or her defence that introduces
new matters that the prosecution, having exercised due diligence, could
not have reasonably foreseen, the court may allow the prosecution to
adduce evidence in rebuttal (ss. 212&309,CPC).
XIII. Calling of Witnesses by the Court
166. The court may, at any stage of the trial or other proceedings, call any
person as a witness or examine any person in attendance though not
summoned as a witness, if the court considers such a person’s evidence
essential for a just decision. The court can also recall and re-examine
any person (s. 150, CPC). In Juma Ali v R ([1964] EA 486), the court
cautioned that this power must be exercised judicially and reasonably,
and not in a way likely to cause prejudice to the accused. Therefore,
when the court calls its own witness, it must give both the prosecutor
and the accused person an opportunity to cross-examine the witness,
and it may accordingly adjourn to allow the parties more time to prepare
for the cross examination (s. 150,CPC).

167. The court may recall a prosecution witness for further cross-
examination even after the close of the defence case (s. 150, CPC). In
Murimi v R ([1967] EA 542), the Court of Appeal for East Africa held
that this provision should not be used to empower the trial court,
immediately after the prosecution has closed its case, to call a witness in
order to establish the case against the accused, except possibly when the
evidence is of a purely formal nature. The court should examine
whether it is indeed essential to recall a witness (Omar Abdulla Awadh
Maalim v R [1964] EA 672).
168. In appropriate cases, section 150 of the CPC can also be invoked by the
prosecution to rebut evidence. In Stephen Mburu Kinyua v R (High
Court at Kiambu Crim. Revision No. 4 of 2016) the court held that the
prosecution can only call rebuttal witnesses when the following
conditions are satisfied:
i) Such evidence must have arisen suddenly to the extent that no
human ingenuity or reasonable diligence could reasonably have
anticipated, or foreseen the possibility of its being adduced by the
defence;
ii) The evidence must have probative value, particularly regarding
the process of assessing the innocence or culpability of the
accused;
iii) It must relate to a significant issue arising from the defence case
for the first time;
iv) The prosecution must demonstrate that:
a. the calling of evidence in rebuttal is not a ploy to reopen its
case in order to cure perceived defects or shortcomings in the
prosecution case.
b. the rebuttal evidence is not being called to merely confirm or
reinforce the prosecution’s case, or to respond to
contradictory evidence adduced by the defence.

c. the rebuttal evidence is not being called on a collateral issue
related to the credibility of a witness.
d. granting permission to adduce the evidence will not violate
the constitutional obligation to ensure a fair and expeditious
trial without unduly jeopardizing the rights of the accused.
XIV. Inability to Raise a Defence Due to Mental Disability
169. If during the trial, the court has reason to believe that an accused person
has mental disabilities that impede his or her capacity to raise a defence,
the court must proceed as follows (s. 162(2), CPC):
i) Determine whether the person is of unsound mind and, if so, the
extent of the disability.
ii) If satisfied that the mental disabilities make the accused person
incapable of making a defence, the court must postpone the
proceedings.
iii) The court may release the accused person on bail on condition
that there is sufficient security to ensure the safety of the accused
person and other persons and to secure court attendance or
appearance before any other officer ordered by the court.
iv) If bail is unsuitable, the court must give an order as to where the
accused person should be detained for safe custody.
v) Submit the court record, or copy thereof, to the Cabinet Secretary
responsible for the Kenya Prison Service for consideration by the
President (Karisa Masha v R Court of Appeal at Mombasa
Criminal Appeal No. 78 of 2014; Nyama Mwajowa v R Court of
Appeal at Mombasa Criminal Appeal No. 46 of 2015; D M v R
Court of Appeal at Malindi Criminal Appeal No. 62 of 2014).
170. An accused person found to be of unsound mind may be detained in a

mental hospital or any other suitable place of custody, through an order
made by the President and addressed to the court. The accused will be

detained until the President makes any other order or until the court
orders him to be brought back to court (s. 162(5), CPC; D M v R Court
of Appeal at Malindi Criminal Appeal No. 62 of 2014).
171. To ensure that such an accused person is not detained indefinitely, it is

good practice for the court to set a mention date to monitor the status of
the accused person.
172. If, in the course of the detention, a medical officer finds that the accused
can make a defence, the officer is obligated to forward a certificate
confirming the same to the Director of Public Prosecutions. The Office
of the DPP is then required to inform the court whether it intends to
proceed with the prosecution (ss. 163(1) & (2), CPC; D M v R Court of
Appeal at Malindi Criminal Appeal No. 62 of 2014; Nyawa Mwajowa v
R Court of Appeal at Mombasa Criminal Appeal No. 46 of 2015). The
court may either have the person removed from the place of custody and
resume trial or order a discharge (s. 163(3), CPC). The discharge does
not bar later proceedings (s. 163(3), CPC).
XV. Visit to Locus in Quo
173. The court may visit the scene of a crime only if necessary to understand
the evidence given; it may not visit in order to form its own opinion
(Nzioka v R [1973] EA 91). A visit should not be held in order to obtain
additional evidence, but only to clarify doubts that may have arisen
during trial. Such doubts include, for example, the nature of the terrain.
In Yang Weimin & 3 Others v R (High Court at Nairobi Criminal
Appeal No. 556, 557, 558 & 559 of 2006), the Court of Appeal held that
the trial court had erred in visiting the locus in quo to ascertain facts that
had not been set out during in-court proceedings.
174. A court may view the locus at any time during a trial, but a viewing
must take place in the presence of the accused, defence counsel (if any),
the prosecutor, and any witnesses that may be required or purposes of
any
demonstration or explanation. The court must be mindful to maintain,
and be seen to maintain, its neutrality during such visits. For instance,
the judge or magistrate should make use of independent transport to the
scene, as travelling with one party to the scene may raise doubt as to the
impartiality of the court.
175. Upon arrival at the scene, the party that made an application for the visit
addresses the court first, followed by the other party. Where the visit is
conducted on the court’s motion, the court addresses the parties on the
purpose of the visits and asks questions. The accused must be given an
opportunity to cross-examine on matters raised. The court should tell
the parties what observations it has made. The court record of the visit
must include the parties present, what took place during the visit, the
observations made, and whether any additional matter has come to light
(Kuyate v R [1967] EA 815; Stephen v R [1973] EA22).
XVI. Final Submissions
176. At the close of the case, both the prosecutor and the accused are entitled
to present submissions to the court on both the evidence and the law
(ss.213,310&311CPC).The prosecution has a right to reply where the
defence calls evidence by a witness other than the accused, and where
the DPP personally appears as advocate for the prosecution (s. 161
CPC).
177. Written submissions should only be accepted with the express consent
of the accused. In Henry Odhiambo Otieno v R(Court of Appeal at
Kisumu, Criminal Appeal No. 83 of 2005) the court held that in light of
sections 210 and 213 of the Criminal Procedure Code and the right to
public trial under section 77(2) of the repealed Constitution of Kenya,
written submissions, in the absence of express consent of the accused,
rendered the proceedings null and void. In John Mugisha v R (High

Court at Nairobi Criminal Appeal No. 162 of 2013), the court noted that
the practice of written submissions is acceptable so long as the accused
has consented.
178. If the accused consents to written submissions, the court, upon receiving
the submissions, should further enquire whether the parties also wish to
make any oral submissions. These oral submissions should form part of
the court record. When written submissions have been submitted, it is
good practice for the parties to highlight important points contained in
the submissions.

CHAPTER FOUR:
JUDGMENT, ORDERS AND SENTENCING

I. The Judgment
Introduction
1. After hearing a case in its entirety, the court must render a reasoned,
written determination on the guilt or innocence of the accused.
2. Judgment can be pronounced either immediately upon termination of

the trial or at a subsequent time (ss. 168(1) & 322, CPC). If the court
intends to pass judgment at some subsequent time, it must give notice of
the date and time to the parties and their advocates, if any (s. 168(1),
CPC). While the CPC does not prescribe a period within which
judgment should be pronounced, the right to a speedy trial demands that
the trial court issue a judgment without unreasonable delay, especially if
the accused is detained.
3. The accused should be present during the pronouncement of the

judgment unless either personal attendance has been dispensed with
during trial and the sentence is a fine, or the accused is acquitted (s.
168(2), CPC). However, the absence of a party at the delivery of the
judgement or failure to notify the accused person of the date of delivery
of judgment does not invalidate the judgment (s. 168(3), CPC). In
Joseph Kamau Githu v DPP(High Court at Nakuru Criminal Appeal No.
34 of 2013), the accused had repeatedly failed to attend court when
judgment was scheduled to be delivered and warrants of arrest had been
issued against him. The trial court subsequently delivered the judgment
in his absence, and the Court of Appeal, relying on section 168(3) of the
CPC, held that the accused’s absence did not invalidate the judgment.
4. The substance of the judgment must be explained in open court (s.

168(1), CPC). The whole judgment should be read out in open court if
either party requests.

5. If the accused applies for a copy of the judgment, he or she is entitled to
one without delay (s. 170, CPC). An accused is also entitled to a
translation of the judgment in their own language upon request, if
practicable. Any person affected by a judgment or order passed by a
superior court is entitled, on application and payment, to a copy of the
judgment, order, deposition or other part of the record. The court may,
for special reasons, provide them free of charge (s. 392, CPC).
Determination
6. Every accused person has the right to a fair trial, which includes the
right to be presumed innocent until the contrary is proved (art. 50(2)(a),
CoK). For the court to convict an accused, the prosecution must prove
beyond reasonable doubt that the accused is guilty (Stephen Nguli
Mulili v R Court of Appeal at Nairobi Criminal Appeal No. 90 of 2013;
Miller v Ministry of Pensions [1947] 2 All ER 372; DPP v
Woolmington (1935) UKHL 1).
7. To arrive at its determination, the court should analyse and weigh the
prosecution and defence evidence in its totality. The court should not
look at the prosecution and the defence cases separately, but as a whole,
while bearing in mind the burden on the prosecution. In Okethi Okale &
Others v R ([1965] EA 555), the court held that the failure to consider
the defence case is contrary to natural justice. Reiterating this position,
the Court in Karura v R (Court of Appeal at Nairobi Criminal Appeal
No. 170 of 1984) proceeded to consider the defence case which ought to
have been considered by the trial court.
8. The court must not convict on the basis of mere inferences or conjecture
without credible evidence proving the guilt of the accused person. In R
v Danson Mgunya (Court of Appeal at Mombasa Criminal Appeal No.
21 of 2016), the appellate court rejected the prosecution’s claim that the
trial court ought to have drawn an inference that the accused shot and

killed the deceased, even though there was no evidence that the gun
belonged to the accused. The court in Joan Chebichii Sawe v R (Court
of Appeal at Nairobi Criminal Appeal No. 2 of 2002) drew a careful
distinction between circumstantial evidence and suspicion: even strong
suspicion by itself cannot justify conviction. It cited R v Kipkering arap
Koske & Another ((1949) EACA 135) stating that ‘to justify the
inference of guilt, the inculpatory facts must be incompatible with the
innocence of the accused, and incapable of explanation upon any other
reasonable hypothesis than that of his guilt’.
Contents of the Judgment
9. Section 169 of the CPC sets out the contents of a judgment. Every
judgment must be written by or under the direction of the presiding
judge or magistrate, who must sign at the last page. The judgment will
then be dated at the time of delivery by the presiding officer or any
other person who delivers the judgment in open court. When the
judgment is delivered, a person who is convicted must be informed of
the right of appeal, and the time frame for appealing, which starts to run
immediately.
10. The court in Peter Mwangi Waithaka v R(Court of Appeal at Nairobi

Criminal Appeal No. 3 of 2013) emphasised that the court is required to
sign and date the judgment. The judgment should include:
i) name of the accused.
ii) the charge or charges.
iii) a summary of the evidence adduced by both prosecution and
defence.
iv) the point or points for determination.
v) the decision made on each point.
vi) the reasons for the decisions clearly set out.
vii) in the case of conviction:

a. specify each offence and relevant section of the law, of
which the accused is convicted.
b. punishment imposed for each count for which the accused is
convicted (s. 169(2), CPC).
viii) in the case of acquittal (s. 169(3), CPC):
a. state any offence of which he/she is acquitted.
b. an order to set accused at liberty.
11. The pages of the order should be numbered consecutively.
12. In the case of a child dealt with in the Children’s Court, the words
‘conviction’ and ‘sentence’ must not be used. The court should refer to
a ‘finding of guilt’, and a consequent ‘order’ (s. 189, Children Act
(CA)).
13. While the court is obligated to comply with section 169 of the CPC,
non-compliance does not automatically invalidate a conviction, and a
determination is premised upon the merits of each case. The
consideration is whether, in all the circumstances, non-compliance has
caused injustice.
14. In R v George Onyango Anyang & Another (High Court at Siaya

Criminal Appeal No. 53 of 2016), the trial court considered the
evidence and made a general conclusion rather than setting out the
points for determination as required by section 169(1) of the CPC. The
appellate court noted this failure, but then proceeded to evaluate the
evidence and consider the points for determination. Having done this, it
acquitted the appellants.
15. Failure to indicate the specific count that each accused was convicted of
was held to be incurable in Nyanamba v R (Court of Appeal at Kisumu
Criminal Appeal No. 121 of 1983), where the two accused had been
charged jointly with two counts of robbery and one separate count
against each accused. The conviction was quashed because the omission
had caused injustice.
16. If a joint trial involves more than one accused, the court must consider
the evidence against each separately and arrive at a separate decision for
each of them (Morris Gitonga Njeru v R High Court at Embu Criminal
Appeal No.16 of 2013; Munyole v R Court of Appeal at Kisumu
17. The judgment must be written in either English or Kiswahili (s. 169(1),
CPC; s. 34, High Court (Organization and Administration) Act); s. 33,
Court Of Appeal (Organization and Administration) Act);s. 198, CPC).
18. The judgment should not contain derogatory language. In Didacus

Ollack Diego v R (High Court at Nairobi Criminal Appeal No. 1079 of
1983) the court reiterated the caution given in Okeno v R ([1972] EA
32): ‘a dispassionate approach and clear finding of fact, are more
indicative of judicial approach, and do not lay the magistrate open to a
charge of possible bias’. The court may express strong condemnation of
the conduct of the accused, but it must be careful not to be abusive or,
for example, imply that the conduct is what might be expected of those
belonging to a particular race, religion etc.
Conviction for Offences Other Than Those Charged
19. If the evidence tendered does not disclose the offence charged, but
instead proves commission of a lesser offence, the court may convict
the accused person for the proved lesser offence (s. 179, CPC; Robert
Mutungi Muumbi v R Court of Appeal at Malindi Criminal Appeal No.
5 of 2013). This is true even if the charging papers did not include the
lesser offence. For example, if an accused is charged with murder and
the prosecutor proved all elements except malice aforethought, the
accused can be convicted of manslaughter (R v Nicholas Ngugi Bangwa
High Court at Nairobi Criminal Case No. 49 of 2011). Similarly, a
person charged with robbery can be convicted of stealing if it is proved
that the person fraudulently and without right took an object, but it is
not proved

that the person used or threatened to use actual violence. Paul Njagi
Mugambi v R (Court of Appeal at Nairobi Criminal Appeal No. 75 of
1979).
20. The substituted offence must be both lesser than and cognate with the
offencecharged.Theterm‘cognate’referstooffencesthatare‘relatedor
alike; of the same genus or species’ (Robert Mutungi Muumbi v R
Court of Appeal at Malindi Criminal Appeal No. 5 of 2013). For
example, an accused charged with defilement can be convicted of
sexual assault (John Irungu v R Court of Appeal at Mombasa Criminal
Appeal No. 20 of 2016). In Lawrence Omondi Otieno v R (Court of
Appeal at Kisumu Criminal Appeal No. 368 of 2006), the court held
that causing grievous bodily harm was cognate with robbery with
violence. The offence of affray was held not to be cognate to the
offence of assault in Janet Nyoroka v R (High Court at Meru Criminal
Appeal No. 73 of 2009). It held that affray requires proof of
involvement in a fight in a public place, which is not an element of
assault.
21. If the facts support a conviction for attempt but not the completed
offence, an accused charged with committing an offence may be
convicted of having attempted to commit it even if attempt was not
included in the charges (s. 180, CPC).
II. Sentencing
General Principles in Sentencing
22. When sentencing, courts are guided by the Sentencing Policy

Guidelines (p. 3) to observe the following principles:
i) Proportionality: The sentence imposed must match the offence
committed. In Susan Peter Ebei v R (High Court at Kabarnet
Criminal Appeal No. 79 of 2017), the court reiterated this
principle and held that a sentence of four years imprisonment
was not proportionate to theft of one sheep. The court, in Baraka
Kazungu Mangi v R (High Court at Malindi Criminal Appeal
No. 9 of 2016), held that life imprisonment for an accused
convicted of trafficking cannabis worth Kshs. 540 was not
proportionate to the offence.
ii) Equality/uniformity/parity/consistency/impartiality: The principle
of equality demands equal treatment of offenders during
sentencing. Thus, offenders who have committed the same
offences in similar circumstances should serve similar sentences.
Guided by this principle, the court, in R v Jackson Maina Wangui
&Another(High Court at Nairobi Criminal Case No.35 of 2012),
highlighted that it had taken note of authorities on the offence of
manslaughter, to determine the appropriate sentence in the case
before it.
iii) Accountability/transparency: The reasoning informing the
sentence imposed must be evident in the judgment. Section 169
of the Criminal Procedure Code requires the court to provide the
reasons for its decision.
iv) Inclusiveness: Apart from hearing the offender in mitigation, the
court may consider victim impact statements (s. 12(1), Victim
Protection Act (VPA)). Victims have a right to submit
information for consideration during sentencing (s. 20(2)(1)(b),
VPA; I P Veronica Gitahi & Another v R Court of Appeal at
Mombasa Criminal Appeal No. 23 of 2016). The sentencing
hearing set out in the Sentencing Policy Guidelines (para. 23)
provides a process through which the court can involve the
offender and the victim in sentencing. During the hearing, the
court also receives information from the prosecution, probation
and children officers (where need be) to reach a well-reasoned
decision.
v) Respect for human rights and fundamental freedoms: The court
must ensure that the sentences imposed do not violate human
rights and fundamental freedoms. Sentences should not be cruel,
inhuman, or degrading (art. 29(f), CoK). Other rights include the
right of children not to be detained except as a measure of last
resort (art. 53(1)(f), CoK). Imposing a custodial sentence on a
child is, therefore, a violation of child rights in a case where a
non- custodial sentence is available. Further, any detention
imposed on a child must be as short as possible (art. 53(1)(f),
CoK). The court therefore declared section 25(2) of the Penal
Code, which requires children convicted of capital offences to be
held in custody at the presidential pleasure, unconstitutional (AO
& 6 Others v Attorney- General & Another High Court at
Nairobi Petition No. 570 of 2015). This Bench Book sets out
human rights and fundamental principles relating to all the stages
of the criminal trial; the court is guided to adhere to them.
vi) Adherence to domestic and international law with due regard to
recognised international and regional standards on sentencing.
23. The sentences imposed should be geared towards achieving the

following objectives set out in the Sentencing Policy Guidelines
(para.4.1):
i) Retribution.
ii) Deterrence.
iii) Rehabilitation.
iv) Restorative justice.
v) Incapacitating the offender.
vi) Denouncing the offence, on behalf of the community.
General Rules on Sentencing
24. Generally, a maximum sentence should not be imposed on a first

offender unless there are aggravating circumstances (Arissol v R [1957]
EA 447; Charo Ngumbao Gugudu v R Court of Appeal at Mombasa
Criminal Appeal No.358 of 2008;James Ng’ang’a Njau v R Court of

Appeal at Nairobi Criminal Appeal No. 28 of 2015). Paragraph 23.7 of
the Sentencing Policy Guidelines sets out a non-exhaustive list of
aggravating circumstances.
25. For each count on which an accused is convicted, there must be a

separate sentence. Omnibus sentences are illegal (Musa Majole v R
[1956] EACA 576; Kiarie v R [1980] KLR52).
26. If the subordinate court convicts an accused of an offence and, after

obtaining information on his or her character and antecedents, it
believes that a more severe punishment should be imposed than it has
authority to inflict, it may transfer the accused to the High Court for
sentencing (s. 221, CPC; Katungo Mbuki v R [1962] EA682).
27. When passing a sentence, the court should only take into account
matters that are relevant to the case. If the court considers irrelevant
matters, it commits an error of law. In Clement Kiptarus Kipkurui v
R(Court of Appeal at Nakuru Criminal Appeal No. 183 of 2008), the
Court of Appeal held that the trial court had not only failed to take some
relevant considerations into account, but in observing that the offence in
question was ‘prevalent’ and imposing a deterrent sentence, it had taken
into account an irrelevant consideration.
28. If two or more people have been convicted of the same offence, there
should be no disparity in the sentences imposed without good reasons.
If the court does impose disparate sentences, it should state its reasons
on the record. (Walter Marando v R Court of Appeal at Kisumu
Criminal Appeal No. 16 of 1980; Luka Kingori Kithinji & Another v R
Court of Appeal at Nyeri Criminal Appeal No. 130 of 2010).
29. The convicted person has the right to the benefit of the least severe
punishment if the prescribed punishment for the offence committed has
changed between the time the offence was committed and at the time of
sentencing (art. 50(2)(p), CoK; Joseph Lolo v R Court of Appeal at
Kisumu Criminal Appeal No. 241 of 2012).

30. Where a penalty is prescribed, unless the contrary is expressed, the
penalty must be construed as the maximum sentence (s.66,
Interpretation and General Provisions Act).
31. Thus, the phrase ‘shall be liable to’ contained in many sentencing
sections of the PC does not prescribe a minimum and mandatory
sentence. Instead, it specifies the maximum sentence that can be
imposed. The court has the discretion to impose a sentence up to, but
not beyond, the maximum. (Daniel Kyalo Muema v R Court of Appeal
at Nairobi Criminal Appeal No. 479 of 2007, citing s. 66(2), PC;
Caroline Auma Majabu v R Court of Appeal at Mombasa Criminal
32. If the law prescribes a maximum sentence, the court must not impose a
sentence above that maximum (Kasongo v R High Court at Nairobi
Criminal Appeal No. 1573 of 1984; Abdikadir Hussein Mberwa v R
High Court at Garissa Criminal Appeal No. 43 of 2014).
33. If the offence specifies a minimum sentence, the court must not impose
any sentence below that minimum (Rotich v R[1983] KLR 541; David
Kundu Simiyu v R Court of Appeal at Eldoret Criminal Appeal No. 8 of
2008). A mandatory sentence cannot be challenged as harsh or
excessive because the court has no discretion to impose a different
sentence (Johnson Muiruri v R [1983] KLR 445; Joseph Njuguna
Mwaura & Others v R Court of Appeal at Nakuru Criminal Appeal No.
5 of 2008). These cases, however, were decided prior to the
implementation of the 2010 Constitution, and may be subject to a
challenges under various articles of the Constitution, including the
prohibition against cruel, inhumane or degrading treatment (art. 29(f),
CoK), a violation of the limitations imposed on fundamental rights and
freedoms (art. 24, CoK), or a violation of the independence of the
judiciary (art. 160(1), CoK).

Forms of Sentences
34. The following sentences can be imposed (subject to the rules for
children set for in Section VII):
i) death
ii) imprisonment
iii) suspended sentence
iv) fine
v) forfeiture
vi) payment of compensation
vii) security to keep peace and be on good behaviour
viii) absolute and conditional discharges
ix) probation
x) community service, or
xi) any other sentences that may be set out by other laws (s. 24(i),
PC), such as suspension of a certificate of competency in traffic
offences (s.39, PC); restitution (s.178, CPC); or police
supervision (s. 344A, CPC).
Death Sentence
35. The death sentence is prescribed for murder (s. 203, PC), treason (s. 40,
PC), robbery with violence (s. 296(2), PC) and attempted robbery with
violence(s.297(2), PC).In Charles Mulandi Mbula v R (Court of Appeal
at Nairobi Criminal Appeal No. 123 of 2010), the court confirmed that
the death penalty was a proper sentence for attempted robbery with
violence as expressly provided for in section 297(2) of the Penal Code.
Section 389 of the Penal Code, which relates to sentencing offenders
convicted of attempted offences with no sentences expressly prescribed
by statute, did not apply.

36. In Francis Karioki Muruatetu & Another v R (Supreme Court Petition
No. 15 & 16 of 2015), the court declared the mandatory death sentence
unconstitutional and remitted the petitioners’ cases to the High Court
for resentencing. The decision specifically relates to the mandatory
death sentence but affirms the validity of the death penalty as a
discretionary sentence. The remission of the cases to the High Court for
sentencing in the Muruatetu case applied strictly to the two petitioners.
The Supreme Court ordered that a committee be established to develop
a framework for the resentencing of all persons who were sentenced
under the mandatory death penalty provision. The Muruatetu case
related to murder, but the court’s reasoning, especially as concerns the
wide range of circumstances of convicted persons, applies with equal or
greater force to robbery with violence.
37. The death penalty may not to be imposed upon a child offender or an
offender who committed the offence while a child (s. 25, PC). Section
25(2) of the Penal Code, which requires a child convicted of murder to
be detained at the President’s pleasure was held unconstitutional (A O
& 6 Others v Attorney-General & Another High Court at Nairobi
38. Expectant mothers cannot receive the death penalty and, instead, are to
be sentenced to life imprisonment (s. 211, PC).
39. If an offender is convicted on several counts of capital offences for

which the court chooses to impose the death penalty, the court must
pass sentence on each count and direct that the offender serve out the
first sentence while the others are held in abeyance (Peter Njagi
Muchangi & 3 Others v R Court of Appeal at Nyeri Criminal Appeal
No.613 of 2010; Stephen Muiruri & 2 Others v R Court of Appeal at
Nairobi Criminal Appeal No. 47 of 1979, (1980) KLR70).

40. Similarly, if the accused is convicted of a capital offence as well as non-
capital offences, the court must sentence the accused on each count for
which he or she has been convicted. It should then order that the capital
sentence be imposed while the sentences for the non-capital offences
are held in abeyance (Hamisi Mungale Burehe v R Court of Appeal at
41. Whilst the death penalty is still a lawful sentence, no one has been
executed since 1987.
III. Imprisonment
42. If the maximum sentence provided is life imprisonment, the court has
discretion to impose a shorter term of imprisonment (s. 26(2), PC;
s. 66(1), Interpretation and General Provisions Act). In M K v R(Court
of Appeal at Nairobi Criminal Appeal No. 248 of 2014), the court
substituted a term of twenty years imprisonment for a sentence of life
imprisonment for an offender convicted of incest. The court noted that
the trial court had erred when it construed the words ‘shall be liable to
life imprisonment’ in section 20(1) of the Sexual Offences Act to mean
that a life sentence was mandatory.
43. Except when a minimum sentence is required, the court has discretion
to determine the term of imprisonment in light of the relevant factors
and circumstances of the case (Cecilia Mwelu Kyalo v R Court of
Appeal at Nairobi Criminal Appeal No. 166 of 2008; Nelson Ambani
Mbakaya v R Court of Appeal at Mombasa Criminal Appeal No. 1 of
2016). The Sentencing Policy Guidelines provide guidance on reaching
the appropriate term of imprisonment (para. 23.3 - 23.10, Sentencing
Policy Guidelines).
44. Section 26(3) of the Penal Code states that, unless the statute requires a
minimum sentence, the court has the option of imposing a fine, in
addition to or instead of, a prison term. In keeping with this provision,

the court, in Arthur Muya Muriuki v R (High Court at Nyeri Criminal
Appeal No. 31 of 2010) reduced a sentence of four years to one and a
half years with the option of a fine of Kshs. 25000 for the offence of
arson.
45. The sentence imposed by the trial court begins on the date on which it is
pronounced (s. 333(2), CPC). The court must take into account the time
already served in custody before sentencing (s. 333(2), CPC; para. 7.10,
Sentencing Policy Guidelines). In Bethwel Wilson Kibor v R(Court of
Appeal at Eldoret Criminal Appeal No. 78 of 2009), the offender was
convicted of manslaughter and sentenced to five years imprisonment.
The trial court did not indicate whether it had taken into account the
nine years that the offender had already served in custody. Guided by
section 333(2) of the CPC, the appellate court reduced the sentence to
time served. Section 333(2) does not specify how the court is to ‘take
into account’ the time in custody.
46. Section 14 of the CPC provides that multiple sentences should run
consecutively unless the court directs otherwise. Nevertheless, the court
ought to specify whether the multiple sentences are to run concurrently
or consecutively. The general rule is that sentences relating to offences
committed in the same transaction should be served concurrently (Peter
Mbugua Kabui v R Court of Appeal at Nairobi Criminal Appeal No. 66
of 2015; BMN v R Court of Appeal at Nyeri Criminal Appeal No. 97 of
2013).
47. Upon imposing a prison term, the court must issue a warrant ordering
that the sentence be carried out in Kenya. The warrant gives the officer
in charge of the prison the authority to carry out the sentence (s. 333(1),
CPC).
48. Upon sentencing, the court no longer has jurisdiction over the case.
However, it bears a supervisory role over prisons. The resident
magistrate in any district is a visiting justice of the prisons in that
district
(s. 72(2), Prisons Act (PA)). This role extends to inspecting the prison,
assessing the living conditions and receiving complaints from prisoners.
The magistrate is also required to determine whether the prisons comply
with the Prisons Act, the rules made thereunder, and the prison standing
orders. Should there be any irregularities, the magistrate is required to
draw the attention of the officer in charge to them (s. 72(4), PA).
Non-Custodial Sentences
49. The primary objective of non-custodial sentences is rehabilitation of

offenders. By serving these sentences, offenders take responsibility for
their actions and, at the same time, remain in the community, which
provides an environment conducive to rehabilitation. Some non-
custodial sentences such as paying compensation and restitution deliver
restorative justice to the specific victims
50. The following considerations, which are setout in the Sentencing Policy
Guidelines (para. 7.18 and 7.19) should be taken into account:
i) Gravity of the offence.
ii) Criminal history of the offender.
iii) Age of the offender.
iv) Character of the offender.
v) Protection of the community.
vi) Offender’s responsibility to third parties.
Suspended Sentences
51. If a court imposes a sentence of imprisonment for any offence for a term
not exceeding two years, it can suspend the sentence for a specified
period (s. 15(1), CPC). In R v Lina Mkunde David Kiritta (High Court
at Nairobi Criminal Revision No.62 of 2008), the court held that the
suspension of sentences was intended for offenders who have
committed

relatively minor offences. It, therefore, reversed a suspended sentence
imposed on an offender convicted of trafficking heroin of a market
value of Kshs. 2,000,000.
52. If the offender is convicted of any offence during the specified period,
the suspended sentence takes effect, and the sentence for the subsequent
offence runs consecutively to the suspended sentence (s. 15(3), CPC;
para. 15, Sentencing Policy Guidelines).
Fines
53. If imprisonment is provided as a penalty for an offence and a fine is not

specified, a fine may be imposed on a person convicted of the offence,
instead of or in addition to imprisonment (s. 26(3) PC). This does not
apply if the sentence of imprisonment is expressed as a minimum. If the
offence is punishable by a fine or a term of imprisonment, the court has
discretion to impose such a fine or imprisonment (s. 28(1)(b), PC).
54. If the law sets a fine as a sentence for a specific offence, the maximum
amount will usually be specified, but if the law is silent on the amount,
the court has discretion as to the amount (s. 28(1)(a), PC). The amount,
however, must not be excessive.
55. In the absence of aggravating factors or circumstances that militate

against the imposition of a fine, the court should consider imposing a
fine (para. 11.5, Sentencing Policy Guidelines). In Khali Abdiaziz
Mohammud & Others v R(High Court at Nairobi Criminal Appeal No.
325 of 2007, 326 of 2007), for example, the Court of Appeal substituted
the trial court’s sentence of one-year imprisonment for a fine for first-
time offenders convicted of being in the country illegally.
56. When the court decides to impose a fine, it should ensure that there is a
reasonable correlation between the fine and the offence. The court
should also take into account the ability of the offender to pay. In R v
Benjamin Ogweno Koyier (High Court at Nairobi Criminal Case No.

75 of 1978), [1978] KLR 158), the court noted that it was pointless to
impose a fine that the offender could not pay. The real test, however, is
whether, given all the circumstances of the case, it would be in the
interests of justice to impose a fine as opposed to imprisonment.
57. When an offender starts to pay the fine within a given period, the court
should allow payment in instalments, provided that the offender submits
a bond to ensure the payment (s. 336(3), CPC). To enforce payment, the
schedule of payment should be included as part of the court record, and
mention dates should be set to monitor payment (para. 11.6-11.8,
Sentencing Policy Guidelines).
58. When imposing a fine, the court should specify a term of imprisonment
to be served in default of payment. The term of imprisonment must be
within the scale below (s. 28(2), PC):
Amount Maximum
Period
Not exceeding Sh. 500 14 days
Exceeding Sh. 500 but not exceeding Sh. 500 One month
Exceeding Sh. 2500 but not exceeding Sh. 15000 Three months
Exceeding Sh. 15000 but not exceeding Sh. 50000 Six months
Exceeding Sh. 50000 12 months
59. If the offender does not pay the fine or pays it late, the offender must
serve either the default imprisonment term or the balance of the term,
taking into account any instalments of the fine already paid (s. 28(1)(c),
PC). A sentence of imprisonment in default of a fine cannot be served
concurrently with any other sentence of imprisonment (s. 37, PC; John
Chege Mwangi v R High Court at Nairobi Criminal Appeal No. 267 of
2007; R v Ofurrya [1970] EA 78). Imprisonment in default of a fine
ends once the fine has been paid. In such a case, the amount payable is
reduced to take into account the period of imprisonment already served.

60. The court can issue warrants for distress and for sale of an offender’s
moveable and immovable property to satisfy a fine. Such an order
should not be made if the offender has served the whole term of
imprisonment in default, except for special reasons. These reasons must
be recorded in writing (s. 28(1)(c)(ii) Proviso, PC). As at the time of
printing this Bench Book, there is no authority explaining what special
reasons might be.
Forfeiture
61. Forfeiture may serve several purposes. One purpose is to restore

property to the rightful owner. Further, through forfeiture, the convicted
person is deprived of the benefits of the crime. The court may not order
forfeiture unless the law expressly provided for it (Munyo Muu [1957]
EA 891). The Proceeds of Crime and Anti-Money Laundering Act, for
example, grants the court this power. A court that imposes forfeiture
should specify the provision under which it is made.
62. Statutes provide for forfeiture either in mandatory or in discretionary

terms. For example, forfeiture under the Customs and Excise Act is
mandatory. The same is true of Section 22 of the Animal Diseases Act
on forfeiture of animals with which an offence has been committed, and
section 19 of the Narcotics and Psychotropic Substances Act. Section
105 of the Wildlife Conservation and Management Act gives the court a
discretion as to whether to order forfeiture.
63. Under section 389A of the Criminal Procedure Code, covering

discretionary forfeiture where the law providing the power does not
specify the procedure for forfeiture, the court should first order service
of a notice on the owner of the property. The notice must give time and
place, state that it will order forfeiture unless good cause for not
ordering forfeiture is shown. If the owner of the goods cannot be found,
the notice should be published in a newspaper, or in any other suitable
mode of

service deemed fit by the court (s. 389A (1), CPC). In Justus Kiprono
Langat v R (High Court at Kajiado Criminal Misc. Application No.48
of 2016) the court held that it was unlawful for the trial court to have
made an order of forfeiture without giving the offender to proceedings
relating to the forfeiture an opportunity to be heard.
64. Forfeiture should not be ordered for property belonging to an innocent

owner who was neither aware, nor had reason to believe, that the
property was used in connection with the offence and who exercised
reasonable diligence to prevent it from being so used (s. 389A(2), CPC).
If the property in question is partly owned by such an innocent party, the
court may order the forfeiture and sale of the property from which fair
share of the proceeds of sale would be given to the part owner (s.
389A(2), CPC).
Payment of Compensation
65. Under section 24(g) of the Penal Code, payment of compensation is one
of the discretionary punishments that a court may inflict upon a
convicted offender (para. 10, Sentencing Policy Guidelines). Under
section 175A of the Criminal Procedure Code, the court may make an
order for compensation if it finds that the convicted person has civil
liability to anyone as a result of the offence committed.
66. Section 23 of the Victim Protection Act provides that victims have ‘a
right’ to compensation or restitution for the losses they suffer as a result
of the offence committed. The compensation may cover personal injury,
economic harm or medical expenses (s. 23(2), VPA).
67. An award of compensation covers what would be recovered as damages

in civil proceedings (s. 175(2), CPC). In Ezekiel Mjomba Katu v
R(High Court at Voi Criminal Appeal No. 52 of 2014) the court set
aside the award of Kshs. 100,000 compensation, as the trial court had
not demonstrated how the liability accrued. In Musili Muthui Mutemi v
R
(High Court at Garissa Criminal Revision No. 5 of 2013) the court set
aside an award for compensation for destroyed crops for want of proof
of ownership of the crops.
68. The amount awarded is recoverable as a judgment debt in civil

proceedings (s. 175(6), CPC; s. 23(4), VPA). Such an order for
compensation, however, should not be made if the court considers that it
would be prejudicial to the convicted person because: the evidence was
too complicated to sufficiently determine the amount of damages; the
evidence was not sufficient to establish either that damages were
incurred or the amount of those damages; rules existed that limited the
application of damages; or for any other reason.1 In such a case, the
victim is left to seek civil remedies unless barred by limitation of time.
Further, the CPC provides that the amount awarded must be within the
usual civil jurisdiction of the court.
69. An order of compensation against a convicted offender is not a bar to

civil proceedings against the offender (s. 25, VPA). But any
compensation awarded would be deducted from any award in a
subsequent civil case (s. 175(7), CPC).
Security for Keeping the Peace
70. A person convicted of an offence, other than an offence punishable by

death, may, in addition to, or instead of, any other sentence, be ordered
to enter into a recognizance, with or without sureties, to keep the peace
and be of good behaviour for a period to be fixed by the court (s. 33,
PC). Such a person may be imprisoned pending the entering into a
recognizance, but this period of imprisonment should not exceed one
year.
1 See Sentencing Policy Guidelines, paras. 10.7-10.11 for further guidance on compensation
orders.

71. Security for keeping the peace under section 33 of the Penal Code must
be distinguished from a similar order provided for in sections 43 to 61A
of the Criminal Procedure Code for suspected persons or habitual
offenders. The latter, which is an order made prior to conviction, was
declared unconstitutional in Anthony Njenga Mbuti & 5 Others v
Attorney-General & 3 Others (High Court at Nairobi Constitutional
Absolute and Conditional Discharge
72. The court may discharge the offender unconditionally if, after having
considered all the circumstances of the case, including the nature of the
offence and the character of the offender, it finds that it is inappropriate
to inflict punishment and, further, that an order of probation would not
be suitable, (s.35 (1), PC). Section 191(1)(a) of the Children Act
recognizes this sentence as one of the orders that can be imposed on a
child found guilty of an offence.
73. The accused person may also be discharged with the condition not to
commit any offence within a period fixed by the order but which must
not exceed 12 months. When imposing this order, the court must
explain to the offender, in ‘ordinary language’, that committing any
other offence within the specified period would render them liable to be
sentenced for the original offence (s. 35(2), PC). This contrasts with the
suspended sentence (s. 15, CPC) where the offender knows from the
beginning the consequences of re-offending.
74. In R v Maxwel Musundi (High Court at Busia Criminal Appeal No.17

of 2016) the court noted that this sentence is meant for offenders who
have committed minor offences. It, therefore, held that the trial court
had erred in discharging an offender who had been convicted for the
offence of escape from lawful custody. Similarly, in Paul Mutuku
Munyoki v R (High Court at Nairobi Criminal Appeal No.56 of 2006)
the court set

aside the discharge of the appellant who had been convicted of grievous
bodily harm. Holding that the discharge was not proportionate to the
offence, the court substituted the discharge with ten years
imprisonment.
75. The Court may order an offender who has been discharged to pay
compensation and all or any part of the costs incidental to the
prosecution (s. 35(3), PC).
Probation1
76. Probation aims to reform and rehabilitate the offender. Once a charge
has been proved, the court may convict the person and impose a
probation order or may place the person on probation without
convicting the person (s. 4(1),Probation of Offenders Act (POA)). The
latter approach may, for instance, be used in accordance with Section
191(1)(c) of the Children Act, which does recognise probation as one of
the orders that can be made against children when the court finds they
are guilty.
77. Before a probation order is imposed, it must be shown that the offender
is remorseful and willing to reform (Elijah Munee Ndundu & Another v
R High Court at Nairobi Criminal (Revision) No. 18 of 1978).
78. A probation officer’s report has to be given to the court before a

probation order is made. This report should provide personal
information about the offender, which the court is required to take into
account when making its decision (s. 4(2), POA). Relevant personal
information includes age, character, health, mental condition, family
background, and antecedents. The word antecedents in this context
means whether the offender has any criminal record. The probation
report guides the court but is not binding (Haron Mandela Naibei v R
High Court at Bungoma Criminal Appeal No. 116 of 2013).
1 See part 9, Sentencing Policy Guidelines for further guidance on probation orders.
79. The offender may be required to enter into a recognisance with or
without sureties and must comply with all the terms of the probation
order (s. 4(1), POA).
80. A probation order may include conditions that contribute towards

reformation of the offender, such as undergoing counselling or
abstaining from alcohol (s. 5(1), POA).
81. If an offender breaches the terms of the probation order, the offender
should be brought before the court that issued the order. If the offender
admits to the violation, or the court, having inquired into the matter and
given the offender the opportunity to make a statement and call
witnesses, finds that a violation occurred, it may impose a fine (s. 8(3)
(a), POA). Alternatively, the court may revoke the probation order and
impose any sentence that it could have imposed at the time of
conviction (s. 8(3)(a)(i) & (ii), POA).
82. If the offender commits a subsequent offence during the term of the
probation order, the court may impose sentences for both the previous
and subsequent offences (s. 7(4), POA). If the offender was placed on
probation without a conviction having been recorded (s. 4(1), POA), the
court may proceed to convict and sentence the offender.
Community Service Orders
83. Community service under the Community Service Orders Act (CSOA)
comprises unpaid public work within a community for the benefit of
that community. Community service may be imposed for a period not
exceeding the term of imprisonment for which the court would have
sentenced the offender. Section 3(2)(b) of the CSOA provides a non-
exhaustive list of public work.
84. Community service orders are limited to offenders whose offences

either would result in sentences of three years or less, or to offenders
who may be subject to a higher sentence, but the court determines that

the circumstances of the case justify a sentence of three years or less (s.
3, CSOA). Community service orders must be distinguished from
probation orders, which are not subject to this limitation (s. 4, POA).
85. Community service orders emphasise restorative justice, which requires

the offender to take responsibility by serving the community within
which the offence was committed. As a member of that community, the
victim benefits from the work done by the offender. Because it is a non-
custodial sentence, the offender is less likely to lose his or her job and,
therefore, less likely to commit crimes upon release.
86. The community service order must indicate the specific place in which
the service will occur and the conditions the offender must observe
(Jonathan Kasaine Mbutu & Another v R High Court at Machakos
Criminal Revision No. 336 of 2014). The probation officer, who serves
as the community service officer (s. 12, CSOA), must be served with a
copy of the order (s.3 (7), CSOA). The probation officer must then give
a copy of the order to the supervising officer, who is the person
appointed to supervise the offender on a day to day basis. A supervising
officer is an employee of the institution in which the offender will carry
out the community service. Examples of institutions in which offenders
serve community service are the Kenya Forest Service, schools,
hospitals, and Probation and Aftercare Services. However, for one-day
community service orders, offenders may also be supervised by
probation officers, community volunteers, or anyone else appointed by
the Probation and Aftercare Services.
87. Before imposing community service, a proper inquiry into the

offender’s circumstances must be made and recorded. The factors that
the court should take into account in determining whether to impose
community service include:
i) whether the offender has a fixed residence,

ii) whether the offender has obligations, such as taking care of
children, the elderly, or people with disabilities (R v Florence
Chelagat High Court at Kabarnet Criminal Appeal No. 128 of
2017 and Margaret Wanjiku Muthoni v R High Court at Nairobi
Criminal Appeal No. 60 of2005),
iii) whether and where the offender is employed, his or her working
hours, and the nature of the offender’s skills,
iv) whether the offender is a first offender,
v) the age of the offender,
vi) the distance to the nearest community service institution from the
offender’s home,
vii) the status of the offender and the nature of work available, and
viii) the health of the offender.
88. These factors are important because they help determine whether the
offender can successfully serve a sentence. For instance, if the
workstation is too far, or if the offender has demanding caretaking
obligations, the offender may not be able to meet the requirements of a
community service order.
89. In appropriate cases, the court can impose the community service order
in addition to another order. For instance, the court may order
community service as well as compensation (s. 31, PC). The court may
also impose community service on condition of good behaviour (s. 33,
PC).
90. Before imposing community service, the court should determine

whether the offender is willing to perform community service. The
court should also carefully explain to the offender what community
service entails, the aims and objectives of community service, the
obligations of the offender under the order, and the consequences of
failure to comply with the order (s. 3(8), CSOA).

91. Before it can impose a community service order, the court must be
satisfied that there is an institution available and willing to supervise the
offender (s. 3(5), CSOA; para. 8.7, Sentencing Policy Guidelines). The
probation officers coordinate with the institutions that are assigned to
supervise offenders and advise the court on the availability of suitable
placements. Upon receiving a copy of the community service order, the
designated institution gives the offender duties and keeps records of the
offender’s performance.
92. Community service orders can be reviewed and varied by a court either
on the application of the probation officer, by request of the offender
made the through the probation officer, or by request of the offender
directly (s. 6, CSOA).
93. If an offender breaches a community service order, the court must hold
a hearing in which the offender has the opportunity to speak. Following
the hearing, the court may either caution the offender to comply with
the order, amend the order, or revoke the order and impose any other
sentence available under the law (s. 5, CSOA).
94. The court receives feedback on the implementation of the community

service orders in its jurisdiction through the Community Service Orders
Case Committees, which are chaired by judicial officers (paras. 8.8-
8.10, Sentencing Policy Guidelines).
Restitution
95. If a person is convicted for offences that are related to appropriating

property (s.178, CPC), the court must order the offender to pay
restitution for the property to the owner or the owner’s representative
(s.178, CPC; part 17, Sentencing Policy Guidelines).An order of
restitution may be made summarily if the property is traceable and can
be easily transferred back to the owner (s. 178(2), CPC). In Kagiri v R
(Court of Appeal at Mombasa Criminal Appeal No.18 of 1988), the
court held that the
various transactions that had taken place concerning the negotiable
instrument in question made it necessary to have its value determined in
a civil suit. It therefore set aside the order of restitution.
96. The court may order that money taken from the offender be given to a
person who had purchased the property in good faith not knowing it had
been stolen and who had subsequently been ordered to restore it to the
rightful owner (s. 178(3), CPC).
97. A person aggrieved by an order of restitution, other than the offender,

may appeal to the High Court (s. 178(4), CPC).
IV. Sentencing Hearing
98. Sentencing Policy Guidelines require courts to hold sentencing hearings

in which they receive submissions that would have an impact on the
sentence (para. 23.1, Sentencing Policy Guidelines). Sections 216 and
329 of the CPC empower the convicting court to hear evidence before
sentencing that it thinks necessary to determine the appropriate sentence
or order. Such evidence may, for example, be contained in probation
reports, community service reports, or general social enquiry reports
from the probation officers. The offender may also present mitigating
evidence to the court. The court ought to establish the history, character,
and antecedents of the person convicted, as well as all matters relevant
to punishment, before imposing a sentence. While requesting such
additional information is discretionary (R v Nasanairi Nsubuga (1950)
17 EACA 130), it is desirable to do so.
99. During the sentencing hearing, the court receives submissions from the
prosecution, the convicted person, the victim (voluntarily), the
probation officer and, where relevant, the children’s officer.

The Prosecution
100. The prosecution is required to give a factual statement about the

offender. The statement should include whether the offender has any
previous convictions and, if so, provide details of the crime committed,
the date of conviction, the sentence imposed, and when the offender was
last released from prison. The prosecution should not allege or imply
that the offender has committed offences for which he or she has not
been convicted. Similarly, the court should not allow any prejudicial
statements meant only to influence the court to award a more severe
sentence (Karanja v R[1985] KLR 348; Ruhi v R [1985] KLR 373).
Indeed, if the prosecution knows anything in favour of the offender, it
should bring it to the attention of the court. This information does not
have to be given under oath.
101. If the prosecution alleges a previous conviction, the court should ask the
offender whether he or she admits or denies the allegation, and note the
response in the record (Thathi v R [1983] KLR 354). If the offender
denies a previous conviction, the prosecution must prove the conviction
by any of the methods set out in section 142 of the CPC. In addition to
proof of the conviction, the offender has to be identified as the same
person who was convicted. This is usually done through fingerprint
analysis. If a fingerprint identification is made by the person who took
the fingerprints of the offender, it is prima facie evidence of the facts set
out in the prior conviction. For the prosecution to prove the existence of
a conviction outside Kenya, it must provide a certificate of a police
officer in the country of conviction, a copy of the sentence or order of
conviction, the fingerprints or photographs of the person convicted, and
evidence that the fingerprints are those of the offender.

The Convicted Person
102. After submissions from the prosecutor, the convicted person should be
given an opportunity to deny or qualify the information presented and to
state additional facts in mitigation. When the offender denies or disputes
something alleged by the prosecution, the court should conduct a
hearing to determine the truth of the allegation. The prosecution must
produce evidence on oath, which should be subjected to cross-
examination. The offender may also present evidence that contradicts
that of the prosecution.
103. Mitigation enables the offender to submit evidence that may reduce the
severity of the sentence. A non-exhaustive list of mitigating
circumstances is set out in the Sentencing Policy Guidelines (para. 23.8,
Sentencing Policy Guidelines). The court may inquire into the facts
relied upon by the offender in mitigation.
104. The court should explain to the offender his or her right to make a
statement or submit evidence in mitigation.
105. Under Article 133 of the Constitution, the President, acting on the
advice of the Advisory Committee on the Power of Mercy, may pardon
an offender, postpone the execution of the punishment indefinitely or
for a specified period, substitute a less severe punishment for that
imposed, or remit whole or part of the sentence. Any offender, even one
sentenced to death, may petition the President for mercy (s. 21(2) (b),
Power of Mercy Act (POMA)). The mitigation statement, as part of the
court record, may be valuable when considering whether to exercise the
prerogative of mercy. It may also be relevant in an appeal at which the
conviction for a capital offence may be reduced to a non-capital
offence. In Joseph Kaberia Kahinga &11 Others v Attorney-General
(High Court at Nairobi Petition No.618 of 2010) the court held that

mitigation is linked to the right to an appeal or review in a higher court
as the mitigating statements give the appeal court a holistic view of the
case.
The Victim
106. Courts should allow victims to express their views before any decision
that affects them, such as sentencing, is made (ss. 4(2)(b) & 9(2)(b),
VPA; para. 22.29, Sentencing Policy Guidelines). Victims are
specifically entitled to submit information for consideration during
sentencing (s. 20(1)(b), VPA). Victims can submit their views and
concerns in person or through a legal representative (s. 9(3), VPA).
107. Victim impact statements may also be submitted and considered at

sentencing (s. 12(1), VPA). These are statements that inform the court
of the harm suffered by the victims as a result of the offence (s. 329A,
CPC). The court is allowed to receive such statements if it considers
them appropriate (para. 22.28, Sentencing Policy Guidelines). Victim
impact statements are not mandatory and must not be received or
considered by the court if the victim objects (s. 329(d), CPC).
V. Determination of the Sentence
108. The Sentencing Policy Guidelines require courts to take a two-step

approach to determining the sentence (pg. 5). First, the court must
decide whether a custodial or non-custodial sentence is appropriate.
Custodial sentences should be reserved for instances when the
objectives of sentencing would not be achieved through non-custodial
sentences. Paragraph 7.19 of the Sentencing Policy Guidelines sets out
the considerations to be taken into account when deciding whether to
impose a custodial or a non-custodial sentence

109. Second, within the category of custodial or non-custodial sentence, the
court must determine the length of the custodial sentence, or the type
and duration of the non-custodial sentence and the conditions that will
accompany it. This decision involves a balancing of mitigating and
aggravating factors as detailed in paragraph 23.9 of the Sentencing
Policy Guidelines.
VI. Sentencing Offenders Found ‘Guilty but Insane’
110. If a court finds that an accused is guilty of the act or omission alleged
but was insane at the time the offence occurred, the court must proceed
as follows:
i) Order the offender to be held in custody in such place and
manner it so directs (s. 166(2), CPC), and
ii) Report the case to the President for an order of commitment (s.
166(2), CPC)
111. The accused is then detained in a ‘mental hospital, prison or other

suitable place of safe custody,’ as ordered by the President (s. 166(3),
CPC). Courts have found difficulty with this provision, as later
paragraphs show.
112. Three years after the order of detention, the officer in charge of the
designated place of custody is required to write a report on the
condition, history, and circumstances of the detained person for
consideration by the President through the Cabinet Secretary responsible
for matters relating to correctional services. Subsequently, a report is
required every two years (s. 166(4), CPC). The report provides
information necessary to determine whether to discharge or require the
detained person to remain under supervision (s. 166(5), CPC). While
not required by law, it is good practice for the court to set a mention
date for the case within a year of the detention order to monitor the
progress of the case.

113. In R v Samson Otieno Munyoro (High Court at Kisumu Criminal Case
No. 6 of 2011 (Unreported)), the trial court raised concerns about the
constitutionality of section 166 of the CPC and requested further
briefing on the matter. Similarly, as noted above, decisions in B K J v R
(High Court at Meru Criminal Appeal No. 16 of 2015) and Hassan
Hussein Yusuf v R (High Court at Meru Criminal Appeal No. 59 of
2014), have held that detention at the President’s pleasure under section
167 of the CPC is unconstitutional. In HM v R (High Court Meru
HCCRA No.17 of 2017) the court held that an indefinite detention,
possibly longer than the minimum sentence for the offence with which
the accused was charged, was both excessive and an infringement of
dignity. The sentence was reduced to one of time served. A similar
decision was reached in Joseph Melikino Katuta v R ([2017] eKLR
High Court at Voi Criminal Appeal No. 12 of 2016).
Sentencing Offenders Who Cannot Understand Proceedings
114. Section 167 of the CPC stipulates a sentence for an offender who is not
insane but cannot be made to understand the proceedings, and against
whom there is enough evidence to convict. Such an offender is detained
at the President’s pleasure. This indeterminate detention was however
held to be unconstitutional in B K J v R (High Court at Meru Criminal
Appeal No. 16 of 2015) and Hassan Hussein Yusuf v R(High Court at
Meru Criminal Appeal No. 59 of2014).
VII. Determining Orders for Children
115. For children found guilty in the Children’s Court, the word ‘sentence’
must not be used in referring to orders made (s.189, CA). The
paramount consideration by the court must be the best interests of the
child (art.53(2), CoK; s. 4(2), CA; para.20.13, Sentencing Policy
Guidelines).

The overall objectives of orders for children are reformation, social
integration, and restorative justice (para. 20.10, Sentencing Policy
Guidelines).
116. The orders appropriate for children found guilty of a crime are set out in
section 191 of the Children Act (Mwata Mwachinga Mwazige v R
Court of Appeal at Mombasa Criminal Appeal No.377 of 2012). Section
191(1)(l) gives the court the discretion to make any other lawful order it
deems fit.
117. The following orders must never be imposed upon children:

i) Imprisonment (s. 190(1), CA), or
ii) Death Penalty (s. 190(2), CA; Peter Nakale Lugulai v R High
Court at Nakuru Criminal Appeal No. 363 of 2002).
118. Children under the age of ten years must not be sent to rehabilitation
schools (s. 190(3), CA). Courts should only use custodial orders as a
matter of last resort (art. 53(1)(f), CoK; para. 20.11, Sentencing Policy
Guidelines).
VIII. Sentencing Adults Who Committed Offences While Minors
119. When sentencing people who committed offences while they were
minors, courts must consider that fact. Since the offence was committed
while the offender was a minor, the penal sanction is a response to
conduct of the offender when a child. The penal sanction imposed must
therefore not be the same as what would have been imposed had the
offence been committed by an adult.
120. While some of the sentences in section 191 of the Children Act cannot
be imposed upon an adult, the court’s decision should be consistent with
the spirit of sections 190 and 191 of the Children Act. These sections
focus on rehabilitation and embrace aspects of restorative justice, such
as compensation and counselling.

121. Section 25(2) of the Penal Code, which requires that an offender
convicted of a capital offence while a child be detained at the
President’s pleasure, was declared unconstitutional by the High Court
(AO & 6Others v Attorney-General& Another High Court at Nairobi
IX. Sentencing Sexual Offenders
122. The Sexual Offences Act provides mandatory minimum sentences for
most of the offences. If the statute requires the imposition of a
mandatory minimum, the court does not have discretion and must mete
out the prescribed sentence (para. 7.17, Sentencing Policy Guidelines;
David Kundu Simiyu v R Court of Appeal at Eldoret Criminal Appeal
No. 8 of 2008). However, in Francis Karioki Muruatetu & Another v R
Supreme Court Petition No.15 &1 6 of 2015 the Supreme Court decided
the mandatory nature of the death sentence for the offence of murder
because it denied the courts their discretion in sentencing. A similar
argument may be raised in regard to minimum sentences
123. For some offences under the Sexual Offences Act, the sentence is
determined by the age of the victim. Evidence of the age of the victim
must therefore be adduced (DWM v R Court of Appeal at Nyeri
Criminal Appeal No. 12 of 2014). A birth certificate, school documents,
a baptismal card, or similar record, may be admitted to prove age (r. 4,
Sexual Offences Rules of Court). In the absence of documentary
evidence, other evidence may be provided. A medical assessment may
also be sought.
124. If the age of a victim differs from the age requirements of the charged
offence, the court can substitute the charged offence for an offence that
reflects the proven age of the victim, and then convict for that offence.

The substitution can only be for a lesser and cognate offence (s. 179,
CPC; Francis Kahindi Mwaiha v R Court of Appeal at Mombasa
125. Further, if a person is charged with defiling a girl under fourteen years
under the Criminal Procedure Code, and the court finds the person not
guilty of that offence but that there is sufficient evidence to find him
guilty of an offence under the Sexual Offences Act, the court can
convict the person of the latter offence (s.186, CPC). Before doing this,
however, it must be proven that the victim was under the age of
fourteen.
X. Sentencing Categories of Offenders Requiring Further
Consideration
126. When considering custodial sentences or community service orders for

offenders who are elderly, terminally ill, or who have disabilities, the
court should take into account the state of the offender and the proposed
sentence to ensure that the sentence does not amount to inhuman
treatment (para. 20.25, Sentencing Policy Guidelines).
127. When sentencing female offenders, the court should also take into
account gender-related factors such as caretaking obligations, whether
they are pregnant, or lactating (paras. 20.39-20.40, Sentencing Policy
Guidelines).
XI. Costs
128. The court has the discretion to order a person convicted of an offence to
pay reasonable costs to the prosecutor, whether private or public, in
addition to any penalty imposed (s. 171(1), CPC). Under section 175(1)
of the CPC, the court may also order that all or part of any fine be used
to cover expenses incurred in the prosecution of the case.

129. Further, the court has a discretion to order a private prosecutor to pay
reasonable costs to an accused person who has been acquitted or
discharged (s. 171(2), CPC). The costs awarded should not exceed
twenty thousand shillings for matters before the High Court (s. 171(2)
(i), CPC). In subordinate courts, the limit for awarding costs is ten
thousand shillings (s. 171(2)(i), CPC). However, costs must not be
imposed against a private prosecutor if the court considers that there
were reasonable grounds for prosecuting (s. 171(2), CPC).
130. The costs awarded must be stated clearly (s. 174(1), CPC). In Katuva
Munyao v Edward Jacob(High Court at Nairobi Criminal Revision No.
42 of 1982), the appellate court set aside the order for costs because the
trial court did not indicate the actual amount awarded.
131. Should a party fail to pay costs awarded, the court may invoke the
provisions on distress on movable or immovable property procedure in
section 334 of the CPC (s. 174(2), CPC). In default of distress, the court
may impose a sentence adhering to the scale set out in section 28 of the
Penal Code (s. 174(2), CPC). The sentence in default of payment of
costs must never exceed three months (s. 174(2), CPC).

CHAPTER FIVE:
APPEAL, REVIEW, REVISION, AND
RELATED MATTERS

I. Appeals
1. The right of a person convicted to appeal to a higher court is guaranteed

by the Constitution (art. 50(1)(q), CoK). And, because an appeal does
not constitute a new trial, the right not to be tried for an offence of
which one has been acquitted does not bar an appeal by the DPP against
an acquittal (art. 50(o), CoK; R v Danson Mgunya Court of Appeal at
2. There is no provision for a private prosecutor to appeal an acquittal by a

subordinate court to the High Court (s. 348A, CPC; Njoroge v Karanja
& Another High Court of Kenya Criminal Appeal No. 399 of 1981;
Kimani v Kahara High Court at Nairobi High Court Revision Case of
1983).
Interlocutory Appeals
3. The limit of the right of appeal to those who have been convicted
excludes any fundamental right to file an interlocutory appeal (art. 50(1)
(q), CoK). The CPC also refers only to appeals following conviction or
acquittal (ss. 347(1) & 379(1), CPC).
4. However, an interlocutory appeal may be allowed in exceptional

circumstances such as when a ruling made by a trial court violates or is
likely to violate the constitutional rights of an accused person (Thomas
Patrick Gilbert Cholmondeley v R Court of Appeal at Nairobi Criminal
Appeal No. 116 of 2007, citing s. 84(7) of the former Constitution,
equivalent of Article 22(1) of the CoK). However, the court in Sheila
Kinya Maingi v R (High Court of Kenya at Nairobi Criminal Appeal
No. 388 of 2008) held that, in criminal cases, it is good practice for an
accused who is aggrieved by a decision made during trial to await the
conclusion of the trial and, if convicted, challenge that decision in a
substantive appeal to the High Court. In deciding whether to entertain
an interlocutory appeal, courts must bear in mind that such appeals

may be used to delay the trial rather than to pursue substantive legal
concerns (John Njenga Kamau v R High Court at Nairobi Criminal
Appeal No. 63 of 2014). Nevertheless the court must strike a balance
between the constitutional rights of an accused and the possibility that
the interlocutory appeal was made to delay or frustrate the case (Sheila
Kinya Maingi v R High Court at Nairobi Criminal Appeal No. 388 of
2008).
Bail Pending Appeal
5. When an appeal is pending in the High Court, a magistrate or judge may

grant bail or stay execution of a sentence pending appeal (s. 356 & 357,
CPC; R v Antony Karanja Njeru High Court at Embu Criminal Case
No. 9 of 2016).
6. To be entitled to bail pending appeal, the applicant must satisfy the court
that the appeal has overwhelming chances of success (para. 4.30, Bail
and Bond Policy Guidelines; Samuel Macharia Njagi v R High Court at
Nyeri Criminal Appeal No. 50 of 2013; Francis Ngobu v R High Court
at Murang’a Criminal Appeal No. 264 of 2013). This phrase, which has
been used in recent cases, may suggest a heavier burden of persuasion
than earlier decisions that stated that the applicant must persuade the
court that the grounds for appeal are so meritorious that the probabilities
will favour acquittal (Somo v R (1972) EA 476). On the other hand, a
recent case that cites many previous authorities uses the expression
‘high chances of success’ (Peter Hinga Ngatho v R [2015] eKLR High
Court Nyeri, Criminal Appeal No. 2 of2015).
7. For appeals to the Court of Appeal, either the High Court or the Court
of Appeal may grant bail to an appellant pending appeal (s.357, CPC;
r. 5(2)(a), Court of Appeal Rules 2010).

8. In cases involving certain serious offences, the DPP may appeal to the
Court of Appeal, as of right, against a decision of the High Court (in its
original jurisdiction) to grant bail to an accused person (s. 379A, CPC;
R v Nuseiba Mohammed Haji Osman alias Umm Fidaa, alias Ummu
Fidaa, alias Ummulxarb Court of Appeal at Nairobi Criminal
Application No. 4 of 2016). The DPP’s right to appeal under section
379A, however, only applies in cases in which an accused has been
charged under the following Acts:
i) Penal Code, section 203 or 296(2);
ii) Prevention of Terrorism Act;
iii) Narcotic Drugs and Psychotropic Substances (Control) Act;
iv) Prevention of Organized Crimes Act;
v) Proceeds of Crime and Anti-Money Laundering Act; and
vi) Counter-Trafficking in Persons Act.
II. Appellate Jurisdiction
Appeal from a Subordinate Court to the High Court
9. The High Court, as the first appellate court, may hear appeals on both
matters of law and matters of fact (s. 347(2), CPC). For matters of fact,
it is the duty of the High Court as the first appellate court to re-evaluate
the evidence adduced at trial (Okeno v R (1972) EA 32; Felix Kinyanya
Marako v R High Court at Migori Criminal Appeal No. 102 of 2014).
10. An appeal to the High Court should be filed within 14 days from the
date of delivery of judgment. However, if an appeal is filed after the 14-
day period, the High Court may admit it if good cause is shown for the
delay. The High Court has allowed late filings where, for example, an
appellant or his or her advocate was unable to obtain a copy of the order
or judgment before the14-day deadline (s. 349, CPC; R v Ramchandra

Shankarlal Bhatt v R High Court at Kericho Criminal No. 19 of 2015;
Mary Wanja Njoroge v R High Court at Nakuru Misc. Criminal
Application No. 65 of 2014).
11. An accused convicted on a plea of guilty can only appeal against the
sentence (s. 348, CPC) and has no right to appeal against the conviction.
However, this is not an absolute bar; there may be special circumstances
that, in the interests of justice, would warrant an appeal against the
conviction, even by an accused who pleaded guilty (Nyawa Mwajowa v
R Court of Appeal at Mombasa Criminal Appeal No. 46 of 2015). For
instance, the plea of guilty may not have been truly voluntary because it
was made under duress (John Gupta Nganga Thiongo v R High Court at
Nairobi Criminal Appeal No. 669 of 1986), or without knowledge of the
severity of a mandatory sentence (Julius Mwanzia Muthiani v R Court
of Appeal at Mombasa Criminal Appeal No.92 of 1999). The accused
may have admitted facts that do not disclose an offence, or pleaded
guilty to a non-existent offence (Nyawa Mwajowa v R Court of Appeal
at Mombasa Criminal Appeal No. 46 of 2015).
Petition of Appeal
12. Appeals to the High Court are lodged in the form of a petition. The
petition must be accompanied by the judgement or the order appealed
against (s. 350(1), CPC).
13. The petition must (s. 350(2), CPC):

i) Be signed by the appellant or the appellant’s advocate if the
appellant is represented;
ii) Set out particulars of the matters of law or fact constituting the
grounds of appeal;
iii) Indicate the address to which documents may be served on the
appellant or the appellant’s advocate if the appellant is
represented.

14. To amend the petition of appeal, the appellant or appellant’s advocate
must seek leave of the court (s. 350(2)(iv), CPC; Gerald Wathiu Kiragu
v R High Court at Nyeri Criminal Appeal No.110 of 2011). An
appellant or appellant’s advocate may, however, amend the petition
without leave of the court under the following circumstances (s.
350(2)(i), CPC):
i) Within seven days of receiving the copy of the trial court record,
and
ii) The appellant or appellant’s advocate had applied for the record
of the trial court within five days of receiving the judgement or
order, and
iii) The appeal was lodged within the 14-day period but before
receiving a copy of the trial record.
15. An amendment of the petition without leave of the court under section
350(2)(i) of the CPC is made through a notice in writing to both the
Registrar of the High Court and the Director of Public Prosecutions.
Summary Rejection of Appeals
16. Generally, an appeal may be rejected summarily if a High Court judge,

after reviewing the petition, is satisfied that there are no sufficient
grounds for interfering (s. 352(1), CPC).
17. However, where a petition challenges the weight of the evidence or

claims that the sentence is excessive, the appellate court may summarily
dismiss the petition if:
i) The evidence is sufficient to support the conviction;
ii) There is no new material in the circumstances of the case which
could raise a reasonable doubt whether the conviction was right
or lead the judge to the opinion that the sentence ought to be
reduced (s. 352(2), CPC).

18. Except for the two reasons above, no appeal should be rejected
summarily (s. 352(1), CPC; Abdi Wali Hassan v R Court of Appeal at
NyeriCriminalAppealNo.49of2015;James Obiri v R Court of Appeal at
Kisumu Criminal Appeal No. 58 of 1981). Summary rejection of
appeals must be done sparingly and only when it is clear that the appeal
is brought solely on the ground either that the weight of the evidence
does not support the conviction or that the sentence is excessive (Okello
v R Court of Appeal at Kisumu Criminal Appeal No.172 of 2002;Ngera
Kamau Wahome v R Court of Appeal at Nyeri Criminal Appeal No. 61
of 2001).
19. Where an appeal is summarily rejected, the court must certify that it
reviewed the record and is satisfied that there were no sufficient
grounds for the complaint. It must also issue a notice of rejection to the
appellant or his advocate and to the Director of Public Prosecutions (s.
352(2 & 3), CPC; Abdi Wali Hassan Kher v R Court of Appeal at Nyeri
20. An aggrieved party may appeal the summary rejection of appeal. In

Moses Rafiki Kazungu v R Court of Appeal at Malindi Criminal Appeal
No. 89 of 2014, the appellant appealed against summary rejection of his
appeal, which had raised both points of law and fact, and the appellate
court quashed the summary rejection (see also Obiri v R [1981] KLR
493 Criminal Appeal at Kisumu Appeal No. 58 of1981).
Summary Granting of Appeals
21. An appeal may be summarily allowed when a High Court judge is

satisfied that the weight of the evidence does not support a conviction
and there is communication, in writing, from the Director of Public
Prosecutions confirming that the Office of the DPP does not support the
conviction (s. 352A, CPC). In Gulam Sadik v R (High Court at
Mombasa Criminal Appeal No. 198’B’ of 2001), for example, the court

ordered a new trial because the Attorney-General conceded that glaring
procedural violations had occurred. The judge should not allow the
appeal simply because the Office of the Director of Public Prosecutions
does not support the conviction, but should personally be satisfied that
this is the right course of action (Topika Ole Murumbi v R High Court
at Nakuru Criminal Appeal No. 370 of 2003).
22. Where an appeal is not summarily dismissed, the court must notify the
parties of the time and place where the appeal will be heard (s. 353,
CPC).
III. Appeals from the High Court to the Court of Appeal
23. A person can appeal against a conviction to the Court of Appeal (s.
379(1)(a), CPC), or against sentence, except when the sentence is fixed
by law (s. 379(1)(b), CPC). Leave of the Court of Appeal must be
obtained for an appeal against sentence (s. 379(1)(b), CPC). However,
the constitutionality of this provision may now be in doubt, in view of
the right to appeal in Article 50(2)(q).
24. In a first appeal to the Court of Appeal, it has jurisdiction to adjudicate

legal and factual matters (s. 379(1) & (2), CPC; r. 29(1), Court of
Appeal Rules 2010; Mabel Kavati & Another v R Court of Appeal at
Nairobi Criminal Appeal No. 509 of 2010; Okeno v R [1972] EA32).
25. The jurisdiction of the Court of Appeal in second appeals is limited to

matters of law (s. 361(1), CPC; Mohamed Famau Bakari v R Court of
Appeal at Malindi Criminal Appeal No. 64 of 2015; Naftali Mwenda
Mutua v R Court of Appeal at Nyeri Criminal Appeal No. 137 of 2014;
M’Riungu v R [1983] KLR 455; Kaingo v R (1982) KLR 213).
26. Pursuant to rule 29 of the Court of Appeal Rules, on a first appeal the
court has the power:
i) to re-appraise the evidence and to draw inferences of fact; and

ii) to take additional evidence if there is sufficient reason to do so
(Marcarios Itugu Kanyoni v R Court of Appeal at Nyeri Criminal
Application No. 5 of 2011; Brown Tunje Ndago v R Court of
Appeal at Mombasa Criminal Appeal (Application) No. 12 of
2012). A sufficient reason may exist if an appellant would suffer
a great injustice if the evidence is not taken or if the decision of
the first appellate court would have been different had the
evidence been taken (Marcarios Itugu Kanyoni v R Court of
Appeal at Nyeri Criminal Application No. 5 of 2011).
27. When additional evidence is taken by the court, it may be given orally
or by affidavit, and the court may allow the cross-examination of any
deponent. The accused’s right to challenge evidence at trial (art. 50(2)
(k), CoK) would apply to adverse evidence in appeal proceedings. The
parties to the appeal are entitled to be present when additional evidence
is taken.
28. The Court of Appeal will not interfere with the findings of fact of the
trial court or the first appellate court unless: the findings were based on
no evidence at all; the findings were based on a perversion of the
evidence; or if no court that had followed the evidence could have
reasonably reached the same conclusion as the lower court (Mohamed
Famau Bakari v R Court of Appeal at Malindi Criminal Appeal No. 64
of 2015).
29. The Director of Public Prosecutions may appeal to the Court of Appeal
if the DPP believes that an acquittal was based on an error of law or fact
(s. 348A, CPC). If the appeal succeeds, the court may substitute the
acquittal with a conviction and proceed to sentence (s. 348A, CPC). In
R v Danson Mgunya (Court of Appeal at Mombasa Criminal Appeal
No. 21 of 2016), the court held that section 348A did not violate the
principle of double jeopardy because an appeal does not ‘constitute a
new or different and distinct trial’.

30. If an accused is acquitted in a trial in the High Court that the DPP
believes involves a matter of law of exceptional public importance, the
DPP may request that the Court of Appeal determine that matter (s.
379(5), CPC). In such a case, the Court of Appeal delivers a declaratory
judgment that is binding on lower courts but does not overturn the
acquittal (s. 379(6), CPC; R v Danson Mgunya Court of Appeal at
31. The DPP may also seek the Court of Appeal’s review of a sentence
imposed by the High Court. The Court of Appeal may maintain or
enhance the sentence in the interests of justice (s. 379(5A), CPC; R v
Edward Kirui Court of Appeal at Nairobi Criminal Appeal No. 198 of
2010).
Documentation on Appeal to the Court of Appeal
Notice of Appeal
32. An appeal to the Court of Appeal is initiated by lodging a notice of

appeal (r. 59(1), Court of Appeal Rules 2010; Feisal Mohammed Ali
alias Feisal Shahbal Court of Appeal at Malindi Criminal Application
No. 2 of 2015). The notice of appeal must be lodged in the High Court
within 14 days from the date of the decision intended to be appealed
against.
Record of Appeal
33. Once a notice of appeal is lodged, the registrar of the High Court
prepares a record of appeal.
34. The record of appeal must contain copies of the following documents in
the following order (r. 62(2), Court of Appeal Rules 2010):

i) an index of all documents in the record that includes the page
numbers at which each document begins, the names of the
witnesses, and the pages of the record (including the trial judge’s
notes, the transcript, or shorthand notes) at which the witnesses’
evidence appears;
ii) the information, indictment or charge;
iii) the trial judge’s notes of the hearing, including those of the
sentencing and any post-sentencing hearings;
iv) the transcript of any shorthand notes taken at the trial;
v) a list of all trial exhibits;
vi) all documentary exhibits, photographs and plans put in at the
trial, and all depositions submitted because an intended witness
was absent.
35. The registrar of the High Court should not prepare the record of appeal
where:
i) The Notice of Appeal has not been filed within the required time
unless either:
a. the Chief Justice, the High Court, or the Court of Appeal
orders that the untimely notice be lodged; or
b. the Court of Appeal has ordered that the time for filing be
extended (r. 62(5)(a), Court of Appeal Rules 2010; R v Paul
Wainaina Boiyo alias Sheki & 5 Others High Court at
Nairobi Criminal Case No. 8 of 2014);
ii) The prescribed fee has not yet been paid (r. 62(5)(c), Court of
Appeal Rules 2010).

Memorandum of Appeal
36. Within fourteen days after service of the record of appeal on the
appellant, he or she must lodge a memorandum of appeal with the
Registrar or Deputy Registrar ‘at the place where the appeal is to be
heard’ (r. 64(1), Court of Appeal Rules 2010).
37. The Memorandum of Appeal must set out the grounds upon which the
appeal is based. For a first appeal, the grounds may raise both points of
law and points of fact. For a second appeal, the Memorandum may only
raise points of law (r. 64(2), Court of Appeal Rules 2010).
Filing a Memorandum of Appeal Out of Time
38. The Memorandum of Appeal should be concise (Henry Karanja Muiri v

R Court of Appeal at Nairobi Criminal Appeal No. 384 of 2010).
39. If a Memorandum of Appeal is not filed within the required time, the
court may either dismiss the appeal or set a hearing to address the late
filing. Once dismissed, the appeal may only be restored if the appellant
shows sufficient cause for the late filing (r. 64(5), Court of Appeal
Rules 2010). The court may, on such terms as it thinks just, extend the
time for filing the Memorandum (r. 4, Court of Appeal Rules 2010).
Withdrawal of Appeal
40. An appellant may withdraw an appeal by filing a written notice to the

Registrar (r. 68(1), Court of Appeal Rules 2010). A withdrawn appeal
may, however, be restored by leave of the court if it is satisfied that the
‘withdrawal was induced by fraud or mistake and that the interests of
justice require that the appeal be heard’ (r. 68(3), Court of Appeal Rules
2010).

Hearing of Appeal
41. The appellant and the State are entitled to attend the appeal hearing (r.
71(1), Court of Appeal Rules 2010). The appellant or the respondent,
where the state is the appellant, may opt not to attend the hearing, in
which case the party should submit a statement of the arguments in lieu
of attendance (r. 66, Court of Appeal Rules 2010). If the appellant is
represented by an advocate or has submitted a statement under rule 66
of the Court of Appeal Rules, the appellant need not attend the hearing
unless required to do so by the court (r. 71(2) & (3), Court of Appeal
Rules 2010; JCS v R Court of Appeal at Nyeri Criminal Appeal No.219
of 2011). Written statements and oral statements made at the hearing are
given equal consideration (r. 72(b), Court of Appeal Rules 2010).
42. During the hearing, the appellant is restricted to the grounds of appeal
raised in the Memorandum of Appeal or Supplementary Memorandum
unless the court permits the appellant to raise other grounds (r. 72(a),
Court of Appeal Rules 2010).
Orders on Appeal
43. If the Court of Appeal sets aside or varies the decision of the subordinate
court or of the first appellate court, it may:
i) Make any order that the subordinate court or the first appellate
court could have made; or
ii) Remit the case, together with its judgment or order, to the first
appellate court or to the subordinate court for determination with
any directions it deems necessary (s. 361(2) CPC; r. 31, Court of
Appeal Rules 2010; Robert Mutungi Muumbi v R Court of
Appeal at Malindi Criminal Appeal No. 5 of 2013).
44. With regard to an appeal against sentence, the Court of Appeal may:
i) Affirm the sentence previously imposed or impose another
sentence; or

ii) If a party to an appeal has been convicted of an offence and the
subordinate court or first appellate court could have lawfully
found him guilty of another offence, the Court of Appeal may
change the conviction to the other offence and impose an
appropriate sentence (s. 361(3), CPC; A M & 2 Others v R Court
of Appeal at Nairobi Criminal Appeal No. 19 of2007).
IV. Appeals from the Court of Appeal to the Supreme Court
45. Except for matters that involve the interpretation or application of the
Constitution, appeals to the Supreme Court must first be certified as
involving a matter of general public importance.
The Constitution refers to ‘certification’ while the Supreme Court Act

refers to ‘leave of the court’. These two terms have the ‘same legal
meaning’ (Lawrence Nduttu & 6000 Others v Kenya Breweries &
Another Supreme Court Petition No. 3 of 2012).1
46. An application for leave to appeal to the Supreme Court may be made
either to the Court of Appeal or to the Supreme Court (art. 163(4)(b),
CoK; s. 16(2)(a), Supreme Court Act 2011 (SCA)). A two-judge bench
of the Supreme Court has stated that it is good practice to approach the
Court of Appeal in the first instance (Sum Model Industries Ltd v
Industrial and Commercial Development Industries Supreme Court
Civil Application No. 1 of 2011). The Supreme Court may review a
certification by the Court of Appeal and either affirm, vary, or overturn
it (s. 16(5), SCA). The refusal to certify an application made to the
Court of Appeal may be appealed to the Supreme Court.
47. Although section 16(2)(b) of the Supreme Court Act also states that
leave to appeal to the Supreme Court may be granted if ‘substantial
injustice may have occurred or may occur if the appeal is not heard,’ the
1 Application for leave to appeal to the Supreme Court applies to both civil and criminal
matters. Decisions in civil matters are therefore instructive in criminal matters.

Supreme Court declared that this section was unconstitutional because it
conflicted with Article 163(4)(b) of the Constitution (Malcolm Bell v
Daniel Toroitich Arap Moi & Another Supreme Court Application No. 1
of 2013).
Retrial
48. When deciding whether to order a retrial, having decided to overturn a

conviction or acquittal, an appellate court should be guided by the facts
and circumstances of the case. In all cases, however, the ultimate
consideration must be whether the interests of justice demand a retrial
(Benard Lolimo Ekimat v R Court of Appeal at Eldoret Criminal
Appeal No.151 of 2004; Dennis Leskar Loishiye v R Court of Appeal at
Nairobi Criminal Appeal No. 24 of 2015).
49. A re-trial would ordinarily be ordered when it would be in the interests

of justice to do so, or where an injustice has been caused by an
irregularity or illegality during trial (Samwel Ngare Kayaa & Another v
R Court of Appeal at Mombasa Criminal Appeal No. 5 of 2011; Muiruri
v R [2000] KLR 552; Makupe v R Court of Appeal at Mombasa
50. If the conviction is overturned because the prosecution’s case was

insufficient or inadequate, a retrial is not appropriate. (Makupe v R
Court of Appeal at Mombasa Criminal Appeal No. 98 of 1983; Fatehali
Manji v R [1966] EA343).
51. Further, the court should not order a retrial if it would not be possible to
conduct a new trial because witnesses were no longer available (Roy
Richard Elirema & Another v R Court of Appeal at Mombasa Criminal
Appeal No.67 of 2002;Munyole v R Court of Appeal at Kisumu
Criminal Appeal No. 97 of 1985)

52. A retrial should not be ordered if it would violate the interests of justice.
In Benard Lolimo Ekimat v R (Court of Appeal at Eldoret Criminal
Appeal No. 151 of 2004), for example, the court held that it was not in
the interests of justice to retry the accused in view of the length of time
he had already spent in prison. In Makupe v R(Court of Appeal at
Mombasa Criminal Appeal No. 98 of 1983), the court held that a retrial
would violate the interests of justice because the appellant was not to
blame for the weaknesses of the prosecution’s case.
V. Revision
53. The High Court exercises a supervisory role over subordinate courts. As
part of that role, it may examine the records or orders of subordinate
courts and assess whether those orders are correct, legal, or proper. It
may also review the proceedings of the subordinate courts to ensure
they meet all procedural requirements (s. 362, CPC; R v Simon
Wambugu Kimani & 20 Others High Court at Garissa Criminal
Revision No. 1 of 2015). The interests of justice require that High Court
routinely exercise this supervisory authority.
54. A Chief Magistrate may call for and examine the records of a
subordinate court of a lower class (s. 363(2), CPC). If, during the
examination, the Chief Magistrate discovers that illegal orders or
sentences have been imposed, he or she must forward the records, with
remarks, to the High Court (s. 363(2), CPC).
55. If orders or proceedings in the subordinate court are found to be

incorrect, illegal, marred by impropriety or generally irregular, the High
Court may exercise its revisionary powers set out in s. 364 of the CPC
(R v Jared Wakhule Tubei & Another High Court at Bungoma Revision
Case No. 26 of 2012; Catherine Mueni Makau v R Criminal Revision
No. 2 of 2012).

56. When exercising its powers of revision, the High Court may (s. 364,
CPC):
i) Exercise its powers as an appellate court in accordance with
sections 354, 357 and 358 of the CPC. In so doing it may
increase the sentence in cases that have resulted in a conviction;
ii) In cases other than an order of acquittal, alter or reverse the order
of the subordinate court (s. 364(1), CPC; Peter Njuguna
Mburugu & 2 Others v R High Court at Nakuru Revision Case
No. 9 of 2012; R v Everlyne Wamuyu Ngumo High Court at
Embu Criminal Revision No. 138 of 2016; Abdi Noor Saidi &
Another v R High Court at Nakuru Criminal Revision No. 58 of
2010).
57. The High Court may not make an order that would prejudice an accused
without first giving the accused an opportunity to be heard either
personally or through his or her advocate (s. 364(2), CPC; R v
Mohamed Rage Shide High Court at Garissa Criminal Revision No. 9
of 2016).
Limits of the Revisionary Powers
58. When exercising the power of revision, the High Court may not:
i) Impose a punishment greater than that given by a subordinate
court (s. 364(3), CPC).
ii) Convert an acquittal to a conviction (s. 364(4), CPC; R v Samuel
Karonjo Rurigi High Court at Nairobi Criminal Revision No.147
of 2016).
59. The court may not entertain a request for are vision of a finding,
sentence, or order if the requesting party did not appeal even though he
or she was able to do so (s. 364(5), CPC;R v Mohamed Rage Shide
High Court at Garissa Criminal Revision No. 9 of 2016;Wahome v R
[1981] KLR 497).

60. When the High Court conducts a revision, it must certify its decision or
order to the court that originally issued it. If necessary, the court that
issued the original decision must then make orders that are in
accordance with the certified decision (s. 367,CPC).
VI. Petition for a New Trial
61. Article 50(6) of the Constitution gives a person convicted of a criminal

offence the right to petition the High Court for a new trial if:
i) The person’s appeal, if any, has been dismissed by the highest
court to which the person is entitled to appeal, or the person did
not appeal within the time allowed for appeal; and
ii) New and compelling evidence has become available.
62. ‘New evidence’ refers to ‘evidence which was not available at the time
of trial and which, despite exercise of due diligence, could not have
been availed at the trial’ (LT. Colonel Tom Martins Kibisu v R Supreme
Court at Nairobi Petition No. 3 of 2014).
63. ‘Compelling evidence’ implies ‘evidence that would have been

admissible at the trial, of high probative value and capable of belief, and
which, if adduced at the trial, would probably have led to a different
verdict’ (LT. Colonel Tom Martins Kibisu v R Supreme Court at Nairobi
64. If a court finds that new and compelling evidence has become available,
it must order a new trial. The court making an order for a new trial may
indicate that part of the evidence adduced at the earlier trial may be
adopted by the court if it would be difficult to secure the attendance of
the witnesses at a new trial.
65. The applicant has the burden of satisfying the conditions of Article
50(6) of the Constitution. This right conveyed by Article 50(6) has no
time limit.

CHAPTER SIX:
SPECIAL PROCEDURES

I. Introduction
1. Typically, criminal proceedings are governed by rules of procedure that

apply to all criminal matters. However, certain types of proceedings are
governed by rules that relate to them specifically. These ‘special’
procedures are discussed in this chapter.
II. Inquests
2. An inquest is a special judicial process of inquiry into sudden or

unexplained death. The law governing inquests is in sections 385-388
CPC.
Jurisdiction in Inquest Proceedings
3. Jurisdiction to conduct an inquest is vested in the Magistrates Courts.

The court nearest to where the sudden or unexplained death occurred
has jurisdiction to conduct the inquest (s. 386(1), CPC).
4. Inquests can be reviewed by the High Court. For example, in R v Chief

Magistrate Naivasha (High Court at Nakuru Judicial Review Case No.8
of 2008), the High Court issued an order of certiorari quashing an order
made by an inquest court for failing to allow the applicants to challenge
evidence on the basis of which the court then ordered they be charged
with murder.
5. The power of revision under section 362 of the CPC can be exercised
over inquest proceedings as well (In re Estate of Philip Otieno
Odhiambo (Deceased) High Court at Homa Bay Criminal Revision No.
8 of 2014).
Mandatory and Discretionary Inquests
6. An inquest must be held when someone dies while imprisoned, in the

custody of the police or a prison officer, or when a missing person is
believed to be dead (s. 387(1), CPC).

7. The Magistrate’s Court, however, has discretion to hold an inquest
when there is information that a person (ss. 386 & 387(1), CPC):
i) Has committed suicide;
ii) Has been killed by another or by accident; or
iii) Has died under circumstances raising a reasonable suspicion that
some other person has committed an offence.
8. The DPP has the discretionary authority to direct a Magistrate to hold

an inquiry or to re-open a terminated inquiry (s. 388, CPC). In Hassan
Kinako Suku (Suing in his capacity as next of kin of Ali Suku Kinango-
Deceased) v Attorney-General & Another (High Court at Mombasa
Judicial Review No.93 of 2011)), the High Court held that, although the
DPP’s authority to direct an inquest was described as discretionary, it
was the responsibility of the DPP to move the court, and therefore there
was no discretion when s. 187(1) of the CPC required that an inquest be
held. .
Procedure in Inquests
9. An inquest starts when a Magistrate Court with appropriate jurisdiction

is informed by the police that a death has occurred in any of the
circumstances set out in section 386 CPC. The information is usually
followed by a detailed report of the investigation and any supporting
evidence.
10. If the circumstances of the death fit within section 387(1) of the CPC,
the court must order an inquest. Otherwise, it may exercise its
discretion. In conducting the inquest, the court has all the powers it
would have if it were holding an inquiry into an offence (s. 387(1)
CPC). Therefore, the court is mandated to inquire into the truth of the
information presented before it and to take any additional evidence it
deems necessary.

The Finding
11. In reaching its findings, the court must bear in mind that the purpose of
an inquest is to determine the cause of death, whether a crime was
committed and, if so, whether there is sufficient evidence to prosecute
any person. Depending on the evidence before it, the court may act in
any of the following ways:
i) If the evidence discloses, in the opinion of the court, that an
offence was committed by an unknown person(s), the court
should make a record of its findings and send a copy to the
Office of the DPP (R Thro’ Cid Mwingi & In the Matter of Julius
Kilonzo Muthengi High Court at Garissa Criminal Revision No.
199 of 2013).
ii) If the evidence discloses, in the opinion of the court, that an
offence has been committed by a known person(s), the court
should, similarly, forward the finding to the DPP. Both Re Homa
Bay Chief Magistrates Court (High Court at Homa Bay Criminal
Revision No.52 of 2015) and Re Estate of Philip Otieno
Odhiambo (Deceased) (High Court at Homa Bay Criminal
Revision No. 8 of 2014), held that a court holding an inquest
under section 387(3) of the CPC may not issue warrants for
arrest based on its findings. Article157 (6)(a) of the Constitution
vests the authority to institute proceedings in the DPP.
iii) If the court concludes that no offence has been committed, then it
must record that conclusion. The opinion of the Inquest Court
must be based on a hearing and can only be recorded at the close
of the inquiry. The High Court granted an application to revise an
Inquest Court’s ruling when the Inquest Court had merely
recorded its opinion without hearing any evidence (R v Charles
M’twamwari High Court at Meru Criminal Revision No. 88 of
2006).

iv) When the court holds an inquest for a missing person believed to
be dead, the court must report the case and its findings to the
Office of the DPP. Based on its findings, the Inquest Court
should recommend whether to reduce the timeframe set out in
section 118 A of the Evidence Act for presuming that a missing
person is dead, and, if so, to what shorter period.
III. Related Processes – The National Coroners Service
12. The National Coroners Service Act (NCSA) establishes the National
Coroners Service whose role is to investigate deaths that occur while in
custody or during medical procedures as well as deaths resulting from
(ss. 24&28, NCSA):
i) violence,
ii) sudden or unnatural causes,
iii) unexplained reasons,
iv) suspected maternal deaths,
v) child abuse, and
vi) other related causes.
13. The service must conduct medical examinations of all deaths suspected
to be of a criminal nature (s. 26. NCSA). If a coroner finds that a death
was caused by a criminal offence, an investigation report must be
submitted to the DPP and Inspector-General of Police (s. 27NCSA).
IV. Orders in the Nature of Habeas Corpus
14. Habeas Corpus is a special order against unlawful restraint. It is a

procedure by which the High Court directs someone who has detained
another to produce that person and to show cause why that person may
not be set at liberty at once (s. 389 CPC). Realistically, it is usually used

when the police are holding or believed to be holding a person, but it
could be used for any situation (for example, if the person is believed to
be forcefully held because of mental illness, or failure to pay a debt).
15. Under Articles 25(d) and 51(2) of the Constitution, habeas corpus is a
fundamental right that may not be limited.
16. The High Court has the authority to issue various directions in habeas
corpus proceedings, including that any detained person be brought
before the court and that an illegally detained person be released (s. 389
CPC).
17. If the respondents no longer have physical custody, even as a result of

their voluntary act, the right to habeas corpus will be ineffective
because the respondents would not be in a position to comply with any
order that can be made in the proceedings (Masoud Salim & Another v
Director of Public Prosecutions & 3 Others High Court at Mombasa
Petition No. 7 of 2014).1
Procedure in Habeas Corpus Applications
18. The procedure in Habeas Corpus Applications is set out in the Criminal
Procedure (Directions in the Nature of Habeas Corpus) Rules, 1948.
These rules, which have not been amended since 1963, are included in
the schedule to the CPC.
19. Under Rule2, the application must be made ex parte, in the first
instance, to a High Court Judge in Chambers and must be supported by
affidavit (usually this will have to be by someone other than the person
detained). The Judge may dismiss the application summarily or make an
order that a summons be issued to the person alleged to be detaining the
prisoner.
1 Kenya has signed but not ratified the International Convention for the Protection of All
Persons from Enforced Disappearance, which requires member states to extend the criminal
law in a way that might make it easier to hold responsible those in authority when people
disappear (UN General Assembly, International Convention for the Protection of All
Persons from Enforced Disappearance, 20 December 2006).

The Rules do not specify what must be proved for the application to
succeed, but it has been suggested that what is needed is to raise a doubt
in the mind of the judge about the validity of the detention. The
petitioner must also prove that the missing person is in the custody of
the respondent in accordance with the usual rule under (s. 107, Evidence
Act; Masoud Salim & Another v Director of Public Prosecutions & 3
Others High Court at Mombasa Petition No. 7 of2014).
20. If the application does proceed, copies of the summons must be served
on the Attorney-General if the individual detained is in public custody
(r. 4, Criminal Procedure (Directions in the Nature of Habeas Corpus)
Rules, 1948).
21. At the hearing stage, the burden of proving that the custody is lawful
lies on the person seeking to justify the detention (Masoud Salim &
Another v Director of Public Prosecutions & 3 Others High Court at
Mombasa Petition No. 7 of 2014).
V. Contempt of Court
22. The law relating to contempt of court, which was previously set out in
several acts, is now consolidated and contained in the Contempt of
Court Act, No. 46 of 2016 (CCA).
23. Contempt of court under the CCA comprises both criminal and civil
contempt of court (s. 4, CCA). Criminal contempt of court is conduct
that undermines the dignity of the court, interferes with the proper
running of court proceedings, or obstructs the administration of justice
(s. 4, CCA). Civil contempt of court is constituted by willful refusal to
obey a court order or breach of an undertaking to a court.

Jurisdiction in Relation to Criminal Contempt of Court
24. All courts have original jurisdiction under the CCA to deal with
contempt of the court (the traditional phrase is ‘in the face of the court’
but the CCA uses ‘on the face’).
25. A superior court may punish for both contempt of court generally and
contempt on the face of the court (s. 5, CCA). A subordinate court may
only punish for contempt of court on the face of the court. Contempt on
the face of the court occurs when a person (s. 6, CCA):
i) assaults, threatens, intimidates, or willfully insults a judicial
officer or a witness, during a sitting or attendance in a court, or in
going to or returning from the court to whom any relevant
proceedings relate;
ii) wilfully interrupts or obstructs the proceedings of a subordinate
court; or
iii) wilfully disobeys an order or direction of a subordinate court.
26. Either a subordinate court or the DPP may make a reference or

application by motion to the High Court for criminal contempt
occurring before a subordinate court.
27. The High Court has the same authority to punish for contempt of court
that occurs in the subordinate courts as it does for contempt of court that
occurs in the High Court (s. 24, CCA).
Procedure
28. A contempt offence must be tried summarily, but the court must keep a
record of the proceedings (s. 7, CCA). The requirements of the
Constitution on fair trial (art. 50) and fair administrative action (art. 47)
must nonetheless be respected (s. 7(3), CCA).

29. No procedure is specified for contempt trial in Magistrates courts, but
when contempt of court occurs before a Superior Court, the court may
order the person detained for up to 24 hours and then must proceed in
the following manner:
i) inform the person in writing of the contempt of court charge;
ii) afford that person an opportunity to defend against the charge;
iii) take evidence that it deems necessary to reach a finding or that has
been offered by the person;
iv) determine based on the evidence whether contempt has occurred;
and
v) may make an order for the punishment or discharge of the person
(s. 25, CCA).
30. A superior court may act on its own motion or on an application by any
person (s. 26(1), CCA). In the case of contempt of a subordinate court,
the High Court may take action on a reference made to it by that court
or on a motion by the DPP (s. 26(2), CCA).
31. In exercising this power, the court must balance the freedom of
expression guaranteed in Article 33 of the Constitution on the one hand
and the duty to protect the authority of the court on the other (R v David
Makali Court of Appeal at Nairobi Criminal Application No. 4 and 5
1994).
VI. Extradition Proceedings
32. Extradition is the judicial process through which an alleged criminal or

fugitive is surrendered by one state to another having jurisdiction over
the crime charged.
33. In Kenya, the extradition process is governed by the Extradition

(Contiguous and Foreign Countries) Act and the Extradition
(Commonwealth Countries) Act. The request for the return of a person

will be made by the authorities of the requesting country through the
Attorney-General, while the DPP will apply to the court (s. 2, Office of
the Director of Prosecutions Act (‘prosecution’ includes extradition)).
34. A court conducting extradition proceedings must bear in mind the

following provisions of the law:
(i) Whether the Offence is Extraditable
35. Not all offences warrant extradition. To be an ‘extradition offence’ a

crime must be punishable under the law of the country seeking
extradition and under Kenyan law or under a law that can be applied as
an extra- territorial offence in Kenya. In addition, the offence must be
listed in the Schedules of the governing act (s. 2(1), Extradition
(Contiguous and Foreign Countries) Act; ss. 2(1) & 4(1), Extradition
(Commonwealth Countries) Act). The lists are not identical.
(ii) Statutory Grounds for Refusal to Extradite
36. Although States have the obligation to extradite or prosecute, there are
statutory barriers to extradition that require the State to refuse to
extradite. The barriers include when it appears that the offence alleged is
of a political character,1 that the accused is in reality being sought in
order that he or she may be punished for political opinions, or that the
accused is being charged on the basis of gender, race, religion, or
nationality (s. 6, Extradition (Commonwealth Countries) Act; s. 16,
Extradition (Contiguous and Foreign Countries) Act; s. 18(a), Refugee
Act). In the case of the Commonwealth Countries Act, extradition is
forbidden if the law about previous conviction or acquittal applies (s.
6(2)); in view of the constitutional prohibition on discrimination, this rule
ought to apply to extradition under the other Act also. No one is to be
extradited to a
1 Note that for the purposes of extradition law ‘no offence which may, or does, jeopardize the
safety of an aircraft, or of any person or property on board an aircraft, in flight shall be
regarded as an offence of a political nature irrespective of the motive or alleged motive for
such offence’ (s. 7(1)(b), Protection of Aircraft Act).
country where ‘there is reason to believe that the person is in danger of
being subjected to torture or cruel, inhuman or degrading treatment or
punishment’ (Prevention of Torture Act s. 21(2)), or if ‘the person’s life,
physical integrity or liberty would be threatened on account of external
aggression, occupation, foreign domination or events seriously
disturbing public order in part or the whole of that country’ (s. 18(b),
Refugee Act). There might be doubts about whether the person, if
extradited, would receive a fair trial, even beyond the issues raised in
the legislation. The court in Torroha Mohamed Torroha v R (Court of
Appeal at Nairobi Criminal Appeal No. 163 of 1988) said, ‘[i]t is
fundamental that there cannot be extradition where fair trial cannot be
guaranteed’. Article 50 on fair trial would arguably be infringed if a
Kenyan court extradited a person when there was a real risk of a
flagrant breach of the fair trial requirement with serious consequences
in terms of penalty for the accused.1
(iii) Whether there is an Extradition Treaty or Agreement between Kenya and
the Requesting State
37. The Extradition (Commonwealth Countries) Act applies to any

Commonwealth country that the DPP has designated for the purposes of
the Act (s. 3, Extradition (Commonwealth Countries) Act).2 No separate
agreement with the country is required.
38. On the other hand, an application for extradition under the Extradition
(Contiguous and Foreign Countries) Act cannot succeed unless the
requesting country has entered into an extradition agreement with
Kenya. (Gunter Grochowski v Attorney-General & Another High Court
at Nairobi Miscellaneous Criminal Application 282 of 2009).
1 The wording is taken from the cases in the UK refusing extradition, most recently
Government of Rwanda v Nteziryayo & Others [2017] EWHC 1912 (Admin).
2 It appears that a small number of Commonwealth countries have been so designated, plus
various countries that were still British colonies at the time of designation (see Extradition
(Commonwealth Countries) Act, Subsidiary Legislation).

39. Even if there is no bilateral agreement with the requesting country, or it
is a Commonwealth country that has not been designated, extradition
may still occur based on an international legal instrument that has been
ratified by Kenya and that provides for the extradition for the offence.
In Gunter Grochowski v Attorney-General & Another (High Court at
Nairobi Miscellaneous Criminal Application No. 282 of 2009), the
United Nations Convention Against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances, to which both Kenya and the requesting state,
Belgium, were parties, was the basis for extradition.1 Various other
treaties include similar provisions.
40. Under both acts, the Resident Magistrates Court has jurisdiction to hear
extradition cases (ss. 2 & 9(1), Extradition (Commonwealth Countries)
Act; ss. 2(1), (2), & 7(1), Extradition (Contiguous and Foreign
Countries) Act).
Bail
41. The court has discretion to grant bail in extradition cases. When
determining whether to grant bail, each case should be dealt with on its
own merits (R v Baktash Akasha Abdalla & 3 Others High Court at
The Court’s Task
42. The court should not act like a trial court, deciding whether the accused
is guilty (R v Wilfred Onyango Nganyi & Another High Court at
Nairobi Criminal Appeal No. 96 of 2005).
1Article 6.3 of the Convention was important: ‘If a Party which makes extradition conditional
ontheexistenceofatreatyreceivesarequestforextraditionfromanotherpartywithwhichit has no
extradition treaty, it may consider this Convention as the legal basis for extradition in
respect of any offence to which this article applies’.

43. Satisfaction that there is, prima facie, a link between the individual and
the criminal incident is sufficient (Torroha Mohamed Torroha v R Court
of Appeal Nairobi Criminal Appeal No. 163 of 1988).
VII. Proceedings under the International Crimes Act
44. Kenya is a State Party to the Statute of the International Criminal Court
(Rome Statute), which it ratified on 15th March 2005. Under Article 2(6)
of the Constitution, treaties and conventions ratified by Kenya form part
of the law of Kenya (Beatrice Wanjiku & Another v Attorney-General
& Another High Court at Nairobi Petition No. 190 of 2011). In 2008,
the International Crimes Act, 2008 (ICA) was enacted to give the Rome
Statute force of law in Kenya (s. 4,ICA).
Jurisdiction
45. The High Court has jurisdiction to try offences under the ICA. These
include genocide, crimes against humanity, war crimes, bribery of ICC
judges, and obstruction of justice in the ICC (ss. 9-17,ICA).
46. Part III of the ICA relates to requests for assistance made by the ICC to
Kenyan authorities while Part IV deals with arrest and surrender of
persons to the ICC.
47. The High Court has exclusive jurisdiction in matters falling under Part
IV, which includes issuance of arrest warrants, requests for surrender,
and bail (s. 37 ICA). In this respect, the High Court may be required to:
i) Issue or cancel warrant of arrests (ss. 30-32, ICA). In the absence
of procedural rules, the request for the issue of a warrant should
be by miscellaneous application (Walter Osapiri Barasa v Cabinet
Secretary Ministry of Interior and National Co-Ordination & 6
Others High Court at Nairobi Constitutional Petition No. 488 of
2013). The criteria for issuing a warrant of arrest are set out in
section 30 of the ICA. In Kenya Section of the International

Commission of Jurists v Attorney-General & Another (High
Court Miscellaneous Criminal Application No. 685 of 2010), the
High Court issued a provisional warrant of arrest against
president Omar Ahmad Hassan AlBashir of Sudan, who had a
pending warrant of arrest issued by the ICC under Article 91 of
the Rome Statute. However, this decision was reversed by the
Court of Appeal in early 2018 (not yet reported).
ii) Issue orders on detention or release on bail (ss. 34, 35 and 38,
ICA). Section 35 and 36 of the ICA should inform the court
when making a decision on bail. In particular, the court should
take into account recommendations made by the ICC (s. 36(2)
ICA).
iii) Determine whether a person before the court is eligible for
surrender to the ICC (s.39, ICA). When making this
determination, the court should be guided by the parameters set
out in section 39(3) of the ICA.
48. Domestic courts have the first opportunity to prosecute international

crimes, and the jurisdiction of the International Criminal Court will only
be invoked if the State is unwilling or unable to prosecute the offences
(art. 17(1), Rome Statute). Unwillingness and inability are determined
in accordance with the criteria set out in Articles 17(2) & (3) of the
Rome Statute.
VIII. Corruption Offences
49. The Anti-Corruption and Economic Crimes Act (ACECA) governs

most corruption offences in Kenya. It defines corruption as the misuse
of entrusted power for private gain; it includes such offences as bribery,
fraud, embezzlement, breach of trust, and abuse of office (s.2, ACECA).
50. The ACECA gives the Independent Ethics and Anti-Corruption

Commission the authority to investigate corruption (s. 23(4), ACECA).
Other statutes that create corruption-related offences are the Proceeds of
Crime and Anti-Money Laundering Act (POCAMLA), the Leadership
and Integrity Act, the Public Procurement and Disposal Act, (PPDA),
and the Bribery Act.
51. Although corruption offences are criminal offences and are generally
subject to the ordinary procedures in a criminal trial, the ACECA has
provisions specifically applicable to the investigation and trial of these
offences. These provisions supersede the provisions of the Criminal
Procedure Code and any other procedural law (s. 5(2), ACECA).
52. Corruption offences can only be tried by a Special Magistrate appointed

by the Chief Justice through notification in the Kenya Gazette (s. 3,
ACECA). A person qualifies to be appointed as a special magistrate if
he or she is a Chief Magistrate, a Principal Magistrate, or an advocate of
at least ten years standing. (s. 3, ACECA).
53. Upon completion of an investigation, the Ethics and Anti-Corruption

Commission (EACC) is required to submit its report to the DPP with
any recommendation for prosecution that it deems appropriate (s. 35,
ACECA). In Nicholas Muriuki Kangangi v Attorney-General (Court of
Appeal at Nairobi Civil Appeal No. 331 of 2010), the court held that the
law required the EACC’s predecessor, the Kenya Anti-Corruption
Authority, to investigate and recommend prosecution and could not
bypass the Attorney-General (who had prosecutorial powers then) to
prosecute a case.
54. A court trying a corruption offence is required, as far as it is practicable,

to hold its hearings on a daily basis until complete (s. 4(4), ACECA).
This, however, does not take away the Magistrate’s power to adjourn
the trial when justice demands.
55. A Special Magistrate may offer a pardon to any corruption suspect on

the condition that the suspect makes a full and true disclosure of the
circumstances relating to the offense that are within his or her
knowledge.

A suspect who accepts a pardon and testifies before the court cannot be
tried for the offence in respect of which he or she has been pardoned (s.
5(1), ACECA).
56. A person who commits a corruption offence, or economic crime is

liable to compensate any victim of the crime and to repay any
improperly accrued benefits (ss. 51 & 52, ACECA). A court that
convicts a person under the ACECA must order that the offender pay
compensation, return property that had improperly been acquired, or
pay the equivalent value of property that had been improperly acquired
(s. 54, ACECA).
57. Part III of the ACECA creates offences punishable under the Act. A
person convicted under the ACECA is subject to a fine of up to one
million shillings and a sentence of up to 10 years imprisonment (s.
48(1)(a), ACECA). If the convicted person received a quantifiable
benefit from his or her illegal conduct, the court must also impose a
mandatory fine (ss. 48(1)(b) & (2), ACECA).
58. The High Court has special jurisdiction to entertain civil proceedings
with respect to orders for the preservation and forfeiture of assets
suspected to be proceeds from corruption or corrupt conduct (ss. 55, 56,
& 56A, ACECA).
59. The Proceeds of Crime and Anti-Money Laundering Act provides for
both criminal and civil confiscation of the proceeds of crime and has
elaborate provisions empowering the court to issue orders relating to the
preservation, forfeiture, and confiscation of criminal proceeds.
60. Due to the trans-boundary nature of corruption offences, a court

conducting trials may be called upon to apply the Mutual Legal
Assistance Act, 2011, the extradition Acts, international instruments on
corruption to which Kenya is a party, and principles of international law.

IX. Private Prosecution
61. A private prosecution is any prosecution commenced by any person

other than someone acting on behalf of the Government. Such a
prosecution is undertaken by the Private Prosecutor in the name of the
State with leave of court (s. 88, CPC).
62. Under the former constitution the right to undertake private prosecution
was hailed as an important constitutional safeguard against partiality,
bias, corruption, and indolence on the part of the public prosecutor
(Kimani v Kahara High Court at Nairobi High Court Revision Case of
1983. See also Gouriet v Union of Post Office Workers [1978] AC 435).
In Albert Gacheru Kiarie t/a Wamaitu Productions v James Maina
Munene & 7 Others (High Court at Nairobi Petition No. 426 of 2009),
the High Court held that Article 157(6)(b) of the 2010 Constitution
specifically anticipated the use of private prosecutions. The Constitution
has a similar provision, but it also recognises the DPP as the authority
for prosecutions generally.
Procedure for Instituting Private Prosecution
63. A private prosecution may be instituted by making a complaint or by

bringing a person who has been arrested without a warrant before a
Magistrate. If the former occurs, the Magistrate is required to either
draw up a charge or cause it to be drawn up. In both cases, the charge
must be signed by the complainant and the Magistrate (s. 89, CPC).
64. Thereafter the Magistrate may either issue a summons or a warrant to

compel the attendance of the accused person before a subordinate court
having jurisdiction to try the alleged offence.
65. Once the accused person is in court, the complainant must seek
permission from the Magistrate to conduct the private prosecution (s.
88(i), CPC; Otieno Clifford Richard v R (High Court at Nairobi Misc.
Civ. Suit No. 720 of 2005).
Requirement for Leave
66. A private prosecutor must obtain the leave of the court to conduct a
private prosecution (s. 88(1), CPC; Isaac Aluoch Polo Aluochier v
Stephen Kalonzo Musyoka & 218 Others High Court at Nairobi Petition
No. 339 of 2013; Otieno Clifford Richard v R High Court at Nairobi
Misc Civ. Suit No. 720 of 2005; Shamsher Kenya Ltd v Director of
Public Prosecution & Another High Court at Nairobi Criminal Appeal
No. 93 of 2015).
67. Upon obtaining leave, a private prosecutor may conduct the prosecution
in person or by an advocate and has the power to withdraw a
prosecution (s. 87, CPC).
68. If a private prosecutor does not seek leave from the Magistrate to
prosecute, leave may be inferred if no objections were raised during the
course of the prosecution (R v Davendra Valji Halal [1978] KLR 178;
Nunes v R [1935] 16 KLR 126). Similarly, if the court allows the
private prosecutor to provide evidence, then it will be presumed that the
court gave its permission when it allowed the trial to proceed (Njoroge
v Karanja & Another High Court of Kenya Criminal Appeal No. 399 of
1981).
69. Permission to conduct a private prosecution is not given as of right. The

court must b satisfied that the complaint or charge discloses an offence.
If it does not, the court should make an order refusing to admit the
complaint or charge and record the reasons for the order (s. 89(5), CPC;
Jopley Constantine Oyieng v R Court of Appeal at Nairobi Criminal

Principles to Consider when Granting Leave
70. The court granting leave should be guided by the principles enunciated
in Floriculture International Limited & Others (High Court Misc. Civil
Application No.114 of 1997) as quoted in Isaac Aluoch Polo Aluochier
v Stephen Kalonzo Musyoka & 218 Others (High Court at Nairobi
71. The court should be satisfied that:

i) The public prosecution procedures have been exhausted;
ii) The DPP’s decision not to proceed has been clearly demonstrated;
iii) The failure or refusal by the State agencies to prosecute is
culpable and, in the circumstances, without reasonable cause, and
that there is no good reason why a prosecution should not be
undertaken or pursued;
iv) Unless the suspect is prosecuted by the court, there is a
likelihood of a failure of public and private justice; and
v) There is reason to believe that a grave social evil is being allowed to

flourish because of the inaction of the DPP, and that the private
prosecution will counteract the DPP’s in action.
72. According to section 4 of the Vexatious Proceedings Act, a person who

has been declared a vexatious litigant by the High Court cannot institute
a private prosecution without the written consent of the DPP. In all other
cases, the DPP was not required to give consent before a private
prosecution can be initiated (Kimani v Kahara High Court at Nairobi
High Court Revision Case of 1983). This provision, which was enacted
in 1958, and the cases must be read in the light of the current
Constitution and the cases discussed earlier. The situation of a vexatious
litigant would not be significantly different from any other potential
private prosecutor under the current law.

Power of the DPP to Take Over Private Prosecution Proceedings
73. The DPP has the authority to takeover and continue a private
prosecution (art. 157(6)(b), CoK). To do so, the DPP must first obtain
permission from the person who initiated the proceedings.
74. To discontinue private prosecution proceedings, the DPP has to obtain

permission from the court (art. 157(8), CoK; Isaac Aluoch Polo
Aluochier v Stephen Kalonzo Musyoka & 218 Others High Court at
Nairobi Petition No. 339 of 2013). If the application is refused, the DPP
has no right of appeal but may apply to the High Court for revision of
the order.

LIST OF CASES
A
A M M & 2 Others v R Court of Appeal Nairobi Criminal Appeal No. 19 of

2007 [2016] eKLR <http://kenyalaw.org/caselaw/cases/view/119204/>
A O O & 6 Others v Attorney-General & Another High Court at Nairobi
Petition No. 570 of 2015 [2017] eKLR
<http://kenyalaw.org/caselaw/cases/view/119204>
Abdi Noor Saidi & Another v R High Court at Nakuru Criminal Revision No.
58 of 2010 [2010] eKLR <http://kenyalaw.org/caselaw/cases/view/64165/>
Abdi Wali Hassan Kher v R Court of Appeal at Nyeri Criminal Appeal No. 49
of 2015 [2016] eKLR <http://kenyalaw.org/caselaw/cases/view/123308>
Abdikadir Hussein Mberwa v R High Court at Garissa Criminal Appeal No.
43 of 2014 [2016] eKLR <http://kenyalaw.org/caselaw/cases/view/119061>
Abel Monari Nyamamba & Others v R Court of Appeal at Nairobi Criminal
Appeal No. 86 of 1994 [1996] eKLR
Aggrey Mbai Injaga v R Court of Appeal at Nairobi Criminal Appeal No. 150
of 2013 [2014] eKLR
<http://kenyalaw.org/caselaw/cases/view/102048/index.php?id=3479>
Albert Gacheru Kiarie t/a Wamaitu Productions v James Maina Munene & 7
Others High Court at Nairobi Petition No. 426 of 2009 [2016] eKLR
Alvin Kamande Njenga & Another v R High Court at Nairobi Miscellaneous
Criminal Application 282 of 2011
Amber May v R Court of Appeal at Nairobi Criminal Appeal No. 24 of 1979
[1979] eKLR <http://kenyalaw.org/caselaw/cases/view/37610>
Andrea Nahashon Mwarisha v R Court of Appeal Criminal Appeal No. 50 of
2013 <http://kenyalaw.org/caselaw/cases/view/121499>
Anthony Njenga Mbuti & 5 Others v Attorney-General & 3 Others High
Court at Nairobi Constitutional Petition No. 45 of 2014 [2015] eKLR
<http://kenyalaw.org/caselaw/cases/view/107838/>

Anthony Njue Njeru v R Court of Appeal at Nairobi Criminal Appeal No. 77
Application for Orders of Witness Protection High Court at Nairobi Misc
Case No. 30 of 2014 [2014] eKLR
Application for orders of Witness Protection High Court at Naivasha Criminal
ApplicationNo.45of2015[2015]eKLR<http://kenyalaw.org/caselaw/cases/vie
w/119303>
Arissol v R [1957] EA 447
Arthur Muya Muriuki v R High Court at Nyeri Criminal Appeal No. 31 of
2010 [2015] eKLR <http://kenyalaw.org/caselaw/cases/view/70999>
Athuman Salim Athuman v R Court of Appeal at Mombasa Criminal Appeal
No. 44 of 2015 <http://kenyalaw.org/caselaw/cases/view/119725>
Attorney-General v Mohamud Hashi & Nine Others Appeal No. 113 of 2011
B
Baraka Kazungu Mangi v R High Court at Malindi Criminal Appeal No. 9 of

2016 [2017] eKLR
<http://kenyalaw.org/caselaw/cases/view/130992/index.php?id=3479>
Bare Mohamed v R High Court at Garissa Criminal Appeal No. 106 of 2014
Barnaba Tenai v R High Court at Eldoret Miscellaneous Application No. 82
of 2013[2014] eKLR <http://kenyalaw.org/caselaw/cases/view/100479>
Baya v R [1984] KLR 657
Benard Lolimo Ekimat v R Court of Appeal at Eldoret Criminal Appeal No.
Benjamin Kariuki Wairimu v R Court of Appeal at Nairobi Criminal
Appeal No. 217 of 2008 [2013] EKLR
Bethwel Wilson Kibor v R Court of Appeal at Eldoret Criminal Appeal No.

BMN v R Court of Appeal at Nyeri Criminal Appeal No. 97 of 2013 [2014]
eKLR <http://kenyalaw.org/caselaw/cases/view/104664>
Boniface Kioko v R Court of Appeal at Nairobi Criminal Appeal No. 12 & 112
Boniface Kyalo Mwololo v R Court of Appeal at Nairobi Criminal
Application No. 1 of 2016 [2016]
eKLR<http://kenyalaw.org/caselaw/cases/view/8299>
Brown Tunje Ndago & Another v R Court of Appeal at Mombasa
Criminal AppealNo.249of2011[2014]eKLR
Brown Tunje Ndago v R Court of Appeal at Mombasa Criminal Appeal
(Application) No. 12 of 2012
Bukenya & Others v Uganda [1972] EA 549
C
Caroline Auma Majabu v R Court of Appeal at Mombasa Criminal
Caroline Wanjiku Wanjiru & Another v R High Court at Nairobi Criminal
Appeal No. 87 of 2012 <http://kenyalaw.org/caselaw/cases/view/111235>
Catherine Mueni Makau v R Criminal Revision No. 2 of 2012 [2012] eKLR
Cecilia Mwelu Kyalo v R Court of Appeal at Nairobi Criminal Appeal No.
Ceretta Medardo v R High Court at Malindi Criminal Appeal No. 73 of 2004,
[2004] 2 KLR 433 <http://kenyalaw.org/caselaw/cases/view/37173/index.php>
Charles Mulandi Mbula v R Court of Appeal at Nairobi Criminal Appeal No.
123 of 2010 <http://kenyalaw.org/caselaw/cases/view/93914>
Charles Ogero Bosire v R Court of Appeal at Kisumu Criminal Appeal No.

Charo Ngumbao Gugudu v R Court of Appeal at Mombasa Criminal
Clay City Developers Limited v Chief Magistrate’s Court & Others High
Court at Nairobi Miscellaneous Application No. 6 of 2013 [2014] eKLR
Clement Kiptarus Kipkurui v R Court of Appeal at Nakuru Criminal Appeal
CMK v R High Court at Kisii Criminal Appeal No. 27 of 2013 [2015] eKLR
D
D M M v R Court of Appeal at Malindi Criminal Appeal No. 62 of 2014
[2016] eKLR <http://kenyalaw.org/caselaw/cases/view/124270/>
Daniel Karuma alias Njaluo v R Court of Appeal at Nairobi Criminal
Daniel Kyalo Muema v R Court of Appeal at Nairobi Criminal Appeal No.
479 of 2007 [2009] eKLR<http://kenyalaw.org/caselaw/cases/view/60785>
Daniel Odhiambo Koyo v R Court of Appeal at Kisumu Criminal Appeal No.
David Kundu Simiyu v R Court of Appeal at Eldoret Criminal Appeal No. 8 of
David Mutune Nzongo v R Court of Appeal at Nairobi Criminal Appeal No.
David Ndumba v R Court of Appeal at Nyeri Criminal Appeal No. 272 of
David Njoroge Macharia v R Court of Appeal at Nairobi Criminal Appeal No.
David Njuguna Wairimu v R Court of Appeal at Kisumu Criminal Appeal No.

Dennis Edmond Apaa & 2 Others v Ethics & Anti-Corruption Commission &
Another High Court at Nairobi Petition No. 317 of 2012 [2012] eKLR
Dennis Leskar Loishiye v R Court of Appeal at Nairobi Criminal Appeal No.
Dickson Nyakundi v R High Court at Nakuru Criminal Appeal No. 29 of 2014
Didacus Ollack Diego v R High Court at Nairobi Criminal Appeal No. 1079
of 1983 <http://kenyalaw.org/caselaw/cases/view/26470>
DMO & Another v R High Court at Nairobi High Court Petition No. 397 of
2012 [2013] eKLR
<http://kenyalaw.org/caselaw/cases/view/89136/index.html>
DPP v Woolmington [1935] AC 462 <http://www.bailii.org/uk/cases/
UKHL/1935/1.html>
Dusara & Another v R Court of Appeal at Nairobi Criminal Appeal No. 59 of
DWM v R Court of Appeal at Nyeri Criminal Appeal No. 12 of 2014 [2016]
eKLR<http://kenyalaw.org/caselaw/cases/view/118135/>
E
E S L v R High Court at Kakamega Criminal Appeal No. 316 of 2012 [2015]

Elijah Munee Ndundu & Another v R High Court at Nairobi Criminal
(Revision) Case No. 18 of 1978 [1978] eKLR
Elijah Njihia Wakianda v R Court of Appeal at Nyeri Criminal Appeal No.
Eliphaz Riungu v R High Court at Nairobi Misc. Criminal Application No.
Eustace Kibera Karimi v R High Court at Nairobi Criminal Appeal No. 911 of
Evans Kalo Callos v R Court of Appeal at Nairobi Criminal Appeal No. 360
of 2012 [2014] EKLR <http://kenyalaw.org/caselaw/cases/view/102587/>
Ezekiel Mjomba Katu v R High Court at Voi Criminal Appeal No. 52 of 2014
F
Fappyton Mutuku Ngui v R Court of Appeal at Nairobi Criminal Appeal No.

Farahat Ibrahim Ahmed & 2 Others v R High Court at Kisumu Criminal
AppealNo.68of2016[2016]eKLR<http://kenyalaw.org/caselaw/cases/vie
w/129625>
Fatehali Manji v R [1966] EA 343
Feisal Mohammed Ali alias Feisal Shahbal v R Court of Appeal at Malindi
Criminal Appeal No. 2 of 2015 [2015] eKLR
Felix Kinyanya Marako v R High Court at Migori Criminal Appeal No. 102
of 2014 [2016] eKLR <http://kenyalaw.org/caselaw/cases/view/120759/>
Felix Mwova Vaasya v R High Court of Kenya at Machakos Misc Crim
App No. 48 of 2016 [2016] eKLR
Festo Wandera Mukando v R [1980] KLR 103
Francis Kahindi Mwaiha v R Court of Appeal at Mombasa Criminal
Francis Karioki Muruatetu & Another v R Supreme Court Petition Nos. 15 &
Francis Ngobu v R High Court at Murang’a Criminal Appeal No. 264 of 2013
Francis Otieno Joseph v R Misc. Criminal Application No. 19 of 2015 [2015]
FUM v R Court of Appeal at Nyeri Criminal Appeal No. 139 of 2010 [2015]

G
George Mbugua Thiongo v R Court of Appeal Criminal Appeal Case No. 302
George Ngodhe Juma & 2 Others v Attorney-General Nairobi High Court

Misc. Criminal Application No. 345 of 2001 [2003] eKLR
<http://kenyalaw.org/caselaw/cases/view/6857 >
Gerald Wathiu Kiragu v R High Court at Nyeri Criminal Appeal No. 110 of
Godfrey Ngotho Mutiso v. R Court of Appeal at Mombasa Criminal
Government of Rwanda v Nteziryayo & Others [2017] EWHC 1912 (Admin)
<http://www.bailii.org/ew/cases/EWHC/Admin/2017/1912.html>
Gregory Muli Masau v R High Court at Nairobi Criminal Appeal No. 549 &
550 of 1979<http://kenyalaw.org/caselaw/cases/view/36658/>
Griffin v R High Court at Nairobi Criminal Appeal No. 185 of 1981 [1981]
eKLR <http://kenyalaw.org/caselaw/cases/view/6085/>
Guardian News and Media Ltd v E Incedal & M Rarmoul-Bouhadjir [2014]
EWCA Crim 1861 Court of Appeal (Criminal Division)<https://www.
judiciary.gov.uk/wp-content/uploads/2014/09/guardian-news-and-media-ltd-
reasons1.pdf>
Gulam Sadik v R High Court at Mombasa Criminal Appeal No. 198’B’ of
Gunter Grochowski v Attorney-General & Another High Court at Nairobi
Miscellaneous Criminal Application No. 282 of 2009 [2009] eKLR
H
Hamisi Mungale Burehe v R Court of Appeal at Mombasa Criminal

Haron Mandela Naibei v R High Court at Bungoma Criminal Appeal No. 116
of 2013<http://kenyalaw.org/caselaw/cases/view/100790/>
Hassan Kinako Suku (Suing in his capacity as next of kin of Ali Suku
Kinango-Deceased) v Attorney-General & Another High Court at Mombasa
Judicial Review No. 93 of 2011 [2014] eKLR
Hawo Ibrahim v R Court of Appeal at Nyeri (sitting in Meru) Criminal
Helmuth Rame v R High Court at Nairobi Misc. Application No. 530 of 2012
Henry Karanja Muiri v R Court of Appeal at Nairobi Criminal Appeal No. 384
Henry Odhiambo Otieno v R Court of Appeal at Kisumu, Criminal Appeal
No. 83 of 2005 [2006] eKLR
Hussein Khalid & 16 Others v Attorney-General & 2 Others High Court of
Kenya at Nairobi Petition No. 324 of 2013 [2014] eKLR
I
I P Veronica Gitahi & Another v R Court of Appeal at Mombasa Criminal
In the Matter of Application for orders for Witness Protection High Court
at Nairobi Misc. Case No. 30 of 2014 [2014] eKLR
Isaac Aluoch Polo Aluochier v Stephen Kalonzo Musyoka & 218 Others High
Court at Nairobi Petition No. 339 of 2013 [2013] eKLR
Isaac Nyoro Kimita v R Court of Appeal at Nairobi Criminal Appeal No. 187

J
J C S v R Court of Appeal at Nyeri Criminal Appeal No. 219 of 2011 [2016]
J M K & Others v R High Court at Garissa Criminal Appeal No. 24 of 2014
Jairus Mukolwe Ochieng v R Court of Appeal at Nairobi Criminal Appeal No.
James Mwangi Muriithi v R Court of Appeal at Nyeri No. 10 of 2014 [2016]
James Ng’ang’a Njau v R Court of Appeal at Nairobi Criminal Appeal No. 28
James Obiri v R Court of Appeal at Kisumu Criminal Appeal No. 58 of 1981
Janet Nyoroka v R High Court at Meru Criminal Appeal No. 73 of 2009
Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others Supreme
Court Petition No. 4 of 2012 [2013] eKLR
Jason Akhonya Makokha v R Court of Appeal at Kisumu Criminal Appeal
No. 131 of 2012 [2014] eKLR
Jason Akumu Yongo v R Court of Appeal at Nairobi Criminal Appeal No. 1 of
Joan Chebichii Sawe v R Court of Appeal at Nairobi Criminal Appeal No. 2
of 2002 [2003] eKLR<http://kenyalaw.org/caselaw/cases/view/10495/>
Job Kenyanya Musoni v R High Court at Nairobi Criminal Application No.
Job Ntabo Ratemo v R Court of Appeal at Nairobi Criminal Appeal No. 96 of
John Bosco Kariuki v R High Court at Nairobi Criminal Appeal No. 272 of

John Brown Shilenje v R High Court at Nairobi Criminal Application No. 180
John Chege Mwangi v R High Court at Nairobi Criminal Appeal No. 267 of
John Irungu v R Court of Appeal at Mombasa Criminal Appeal No. 20 of
John Mbugua v R High Court at Nairobi Miscellaneous Criminal Application
No. 69 of 2014 [2014] eKLR
John Muendo Musau v R Court of Appeal at Nairobi Appeal No. 365 of 2011
John Mugisha v R High Court at Nairobi Criminal Appeal No. 162 of 2013
John Njenga Kamau v R High Court at Nairobi Criminal Appeal No. 63 of
John Waweru Njoka v R Court of Appeal at Nyeri Criminal Appeal No. 115 of
Johnstone Kassim Mwandi & Another v R High Court at Garissa Criminal
Jonathan Kasaine Mbutu & Another v R High Court at Machakos Criminal
Revision No. 336 of 2014 [2014] eKLR
Jopley Constantine Oyieng v R Court of Appeal at Nairobi Criminal Appeal
No. 45 of 1988 [1988] eKLR <http://kenyalaw.org/caselaw/cases/view/7854/>
Joseph Kaberia Kahinga &11 Others v Attorney-General High Court at
Nairobi Petition No. 618 of 2010
Joseph Kamau Gichuki v R Court of Appeal at Nairobi Criminal Appeal No.

Joseph Kamau Githu v Director of Public Prosecution High Court at Nakuru
Joseph Kipkoech Boyon v R High Court at Kericho Criminal Appeal No. 70
Joseph Lolo v R Court of Appeal at Kisumu Criminal Appeal No. 241 of
Joseph Melikino Katuta v R [2017] eKLR High Court Voi Criminal Appeal
No. 12 of 2016<http://kenyalaw.org/caselaw/cases/view/138981/>
Joseph Ndungu Kagiri v R High Court at Nyeri Criminal Case No. 62 of 2012
Joseph Njuguna Mwaura & Others v. R Court of Appeal at Nakuru Criminal
Joshua Karianjahi Waiganjo v R High Court at Naivasha Criminal Appeal
Josphat Njue Solomon v R High Court Criminal Appeal No. 187 of 2008
Judy Nkirote v R High Court at Meru Criminal Appeal No. 48 of 2010 [2013]
eKLR <http://kenyalaw.org/caselaw/cases/view/87115>
Julius Kamau Mbugua v R Court of Appeal at Nairobi Criminal Appeal No.
50 of 2008 [2010] eKLR 19<http://kenyalaw.org/caselaw/cases/view/71417/>
Julius Kaunga v R Court of Appeal at Nairobi Criminal Appeal No. 189 of
2000 [2008] eKLR<http://kenyalaw.org/caselaw/cases/view/37045>
Julius Kiunga M’birithia v R High Court at Meru Criminal Appeal No. 111 of
2011[2013] eKLR<http://kenyalaw.org/caselaw/cases/view/93477>
Julius Mwanzia Muthiani v R Court of Appeal at Mombasa Criminal Appeal

Justus Kiprono Langat v R High Court at Kajiado Criminal Misc. Application
No. 48 of 2016 [2017] eKLR
K
K v R High Court at Kabarnet Misc. Criminal Application No. 67 of 2017
Kagiri v R Court of Appeal at Mombasa Criminal Appeal No. 18 of 1988
Kaingo v R [1982] KLR 213
Kanini Muli v R Court of Appeal at Nairobi Criminal Appeal No. 238 of 2007
Kanyoro Kamau v R [1965] EA 501
Karisa Masha v R Court of Appeal at Mombasa Criminal Appeal No. 78 of
Karura v R Court of Appeal at Nairobi Criminal Appeal No. 170 of 1984
Kasongo v R High Court at Nairobi Criminal Appeal No. 1573 of 1984 [1985]
Katungo Mbuki v R [1962] EA 682
Katuva Munyao v Edward Jacob High Court Nairobi Criminal Revision Case
Kazungu Kasiwa Mkunzo v R Criminal Appeal at Mombasa No. 239 of 2004
Kazungu Mkunzo & Swaleh Kambi Chai v R Court of Appeal at Mombasa
Criminal Appeal No. 239 of 2004
Kenga Chea Thoya v R Court of Appeal at Mombasa Criminal Appeal No.

Khali Abdiaziz Mohammud & Others v R High Court at Nairobi
Criminal Appeal No. 325 of 2007, 326 of 2007 [2007] eKLR
Kibageny Arap Kolil v R [1959] EA 82
Kiilu v R [2005] 1 KLR 174
Kimani v Kahara High Court at Nairobi High Court Revision Case of 1983
Kinyatti v R Court of Appeal at Nairobi Criminal Appeal No. 60 of 1983
Kossam Ukiru v R Court of Appeal at Kisumu Criminal Appeal No. 266 of
Kuyate v R [1967] EA 815
Kyalo Kalani v R Court of Appeal at Nairobi Criminal Appeal No. 586 of
L
Lawrence Nduttu & 6000 Others v Kenya Breweries & Another Supreme
Court Petition No. 3 of 2012 [2012] eKLR
Livingstone Maina Ngare v R High Court at Nairobi Criminal Revision No.
Lt. Colonel Tom Martins Kibisu v R Supreme Court at Nairobi Petition No. 3
Lucas Omoto Wamari v Attorney-General & Another High Court at Nairobi
Petition No. 294 of 2012<http://kenyalaw.org/caselaw/cases/view/96157/>
Luka Kingori Kithinji & Another v R Court of Appeal at Nyeri Criminal
Lusiti v R High Court at Nairobi Criminal Appeal No. 319 of 1971 [1977]
M

MKvRCourtofAppealatNairobiCriminalAppealNo.248of2014[2015]
M v R Court of Appeal at Nairobi Criminal Appeal No. 41 of 2013 [2014]
M. S. Sondhi Ltd. v R [1950] 17 EACA 143
M’Riungu v R [1983] KLR 455
Mabel Kavati & Another v R Court of Appeal at Nairobi Criminal Appeal No.
Mahadi Swaleh Mahadi v R High Court at Mombasa Criminal Case No. 23 of
2014<http://kenyalaw.org/caselaw/cases/view/101599/>
Makinda & Another v R [1979] KLR 134
Makupe v R Court of Appeal at Mombasa Criminal Appeal No. 98 of 1983
Malcolm Bell v. Daniel Toroitich Arap Moi & Another Supreme Court
Application No. 1 of 2013 [2013] eKLR
Malebe v R High Court at Nairobi Criminal Appeal No. 546, 547 and 548 of
1982 <http://kenyalaw.org/caselaw/cases/view/8282/>
Manager, Nanak Crankshaft Ltd v R High Court at Nairobi Criminal Revision
Case No. 763 of 2007 [2008] eKLR
Marcarios Itugu Kanyoni v R Court of Appeal at Nyeri Criminal Application
No. 5 of 2011 [2011] eKLR <http://kenyalaw.org/caselaw/cases/view/76160>
Margaret Wanjiku Muthoni v R High Court at Nairobi Criminal Appeal No.
Maripett Loonkomok v R Court of Appeal at Mombasa Criminal Appeal
No. 68 of 2015 [2016] eKLR
Mary Kinya Rukwaru v Office of the Director of Public Prosecutions &
Another High Court at Nairobi Petition No. 285 of 2016 [2016] eKLR
Mary Kinya Rukwaru v Raghunathan Santosh & Another High Court at
Nairobi Criminal Application No. 169 of 2014 [2014] eKLR
Mary Wanja Njoroge v R High Court at Nakuru Misc. Criminal Application
No. 65 of 2014 <http://kenyalaw.org/caselaw/cases/view/114459/>
Masoud Salim & Another v Director of Public Prosecutions & 3 Others High
Court at Mombasa Petition No. 7 of 2014 [2014] eKLR
Mercy Kajuju & 4 Others v R High Court at Meru Criminal Case No. 186 of
Michael Nganga Kinyanjui v R Court of Appeal at Nairobi Criminal
Milen Halefom Mezgebo v Attorney-General & 2 Others High Court at
Nairobi Petition No. 205 of 2011 [2012] eKLR
Mohamed Famau Bakari v R Court of Appeal at Malindi Criminal Appeal No.
Morris Gitonga Njeru v R High Court at Embu Criminal Appeal No. 16 of
Moses Rafiki Kazungu v R Court of Appeal at Malindi Criminal Appeal No.
Mugema v R [1967] EA 676
Mumias Sugar Co. Ltd. W. S. M. Adambo v R High Court of Kenya at
Kakamega Criminal Appeal No. 11 of 2008
Munguti v R High Court at Nairobi Criminal Appeal No. 1815 of 1984
Munyo Muu [1957] EA 891
Munyole v R Court of Appeal at Kisumu Criminal Appeal No. 97 of 1985
Murimi v R [1967] EA 542

Musa Majole v R [1956] EACA 576
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O
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What are some of the constitutional rights related to the criminal process discussed in the document?

What are some of the constitutional rights related to the criminal process discussed in the document?

What rights does an arrested person have according to the document?

What rights does an arrested person have according to the document?

CRIMINAL PROCEDURE

Right to an Advocate and Communication with Others ......................... 10

Criminal Procedure Bench Book

VI. Case Management................................................................................... 69

X. Participation of Victims During Proceedings ......................................... 93

Requirement for Leave ......................................................................... 181

LIST OF CASES ......................................................................................... 184

The Criminal Procedure Bench Book was prepared by a Technical Committee,

My immense gratitude goes to Dr. Sarah Kinyanjui, the lead consultant,

Criminal Procedure Bench Book

Hon. Lady Justice Hannah Okwengu, EBS

Criminal Procedure Bench Book

In January 2017, I launched my strategic blueprint for the Judiciary entitled,

The core objective of my strategy for the Judiciary is to enhance service

Criminal Procedure Bench Book

The Hon. Mr. Justice David K. Maraga, EGH

Criminal Procedure Bench Book

ACECA Anti-Corruption and Economic Crimes Act

Criminal Procedure Bench Book

This Bench Book provides guidance on statutes, judicial authorities, and

Criminal Procedure Bench Book

Criminal Procedure Bench Book

Criminal Procedure Bench Book 1

1. The criminal justice system comprises agencies involved in

Criminal Procedure Bench Book 2

II. The Constitutional Framework for State Organs

7. Many constitutional provisions govern the behaviour of state bodies in

III. Equality and Dignity

9. Courts must deliver justice to everyone who appears before them

Criminal Procedure Bench Book 3

IV. Vulnerable and Disadvantaged Groups

12. Another relevant provision is Article 21(3) of the Constitution, which

Criminal Procedure Bench Book 4

V. Freedom from Torture, Cruel, Inhuman, and Degrading Treatment

Criminal Procedure Bench Book 5

Independence of the Judiciary: The Institution and the Court

16. Having trials commenced and concluded within a reasonable time is in

17. The Constitution provides that justice must be administered without

Criminal Procedure Bench Book 6

18. Transparency is a national value (art. 10(2)(c), CoK), and it is a general

Promotion of Alternative Forms of Dispute Resolution

20. The emphasis in criminal justice is shifting somewhat towards

21. The Constitution places particular emphasis on the facilitation of

Criminal Procedure Bench Book 8

VIII. Constitutional Rights Related to the Criminal Process

IX. Rights of an Arrested Person

Criminal Procedure Bench Book 9

27. Under Article 49 of the Constitution, a person arrested must be

Right to Remain Silent

28. An arrested person has no obligation to provide information to the

Right to an Advocate and Communication with Others

Right not to be Compelled to Make a Confession or Admission

30. An arrested person must not be compelled to make a confession or

Right to be Separated from Convicted Prisoners

31. Anyone arrested must be held separately from convicted persons