THE CATHOLIC UNIVERSITY OF EASTERN AFRICA

FACULTY OF LAW
COURSE OUTLINE
CRIMINAL PROCEDURE & PRACTICE - CLS 201
Academic Year: (May-August) 2016
Class Hours: Monday 8.00am-11am (Group A); 11am-2pm (Group B); Tuesday
8.00am-11.00am (Group C).
Lecturer: N.N. Wambua, LL.B (Moi), LL.M (Pittsburgh)
Hours of Consultation:

TBA

EMAIL: ngumbiwambua@yahoo.com
COURSE OBJECTIVES
This course is mental trip into the theory and practice of criminal procedure in Kenyas
criminal justice system. Here, the learner is also invited to propose reforms, if any,
needed to make Kenyas criminal justice system function better.
At the end of the course, the learner is expected to be able to:
(a)
(b)
(c)
(d)
(e)

Have a deep understanding of constitutional criminal procedure.

Understand the nature and procedure of public and private criminal prosecution.
Draft charges/information.
Appreciate the legal essence of bail and bond.
Evaluate the essence of committal proceedings, procedure in trials before the High
court and subordinate courts.
(f) Understand the place of victims of crime in criminal trial.
(g) Value the significance of judgment, sentencing, other orders contempt of court
proceedings, appeals and directions in the nature of Habeas Corpus.
(h) Understanding the objective, and procedure, of criminal inquests.
The course seeks to demonstrate the nature and manner of criminal prosecution, initiation
of criminal prosecution, private prosecution, prosecution arraignment and the plea, bail
and bond, committal proceedings, procedure in trials before High Court, procedure in
cases of insanity or other incapacities of accused person, judgment and competence,
verdicts, sentencing, other orders other than sentence, contempt of court proceedings,
appeals, directions in the nature of Habeas Corpus.
Teaching Methodologies:

Lectures, tutorials, group discussions, seminar.

Instructional Materials/Equipment:
Handouts, chalkboard, resource persons, statutes.
Student Performance
Assignments, continuous assessment tests, term papers, end of semester examinations.
CAT 30%
Final Exam 70%
Course content
Week 1
Historical origins of criminal procedure
The Blackstone Principle: Meaning, Origins, and its 21st century relevance
The Nature of Criminal Prosecutions
(a) Players in criminal proceedings
(b) The constitutional place of the Director of Public Prosecutions
Readings
(a)
(b)
(c)
(d)

Lumumba, Criminal Procedure in Kenya, p. 1-11

Kiage, Essentials of Criminal Procedure in Kenya, p. 1-8
Constitution of Kenya, 2010 (Article 157)
Danie Epps, THE CONSEQUENCES OF ERROR IN CRIMINAL JUSTICE,
Harvard Law Review, VOL. 128 NO. 4 FEB. 2015
(e) SIMPLICITY AS EQUALITY IN CRIMINAL PROCEDURE, Harvard Law Review,
Vol. 120:1585-1603, 2016.
Week 2

The Structure and Jurisdiction of Courts

Searches

Readings

Kiage, Essentials of Criminal Procedure in Kenya, p. 9-22

Lumumba, Criminal Procedure in Kenya, p. 18-21
Kiage, Essentials of Criminal Procedure in Kenya, p. 23-31
Criminal Procedure Code, Cap. 75
Magistrates Courts Act, 2015
Kadhis Courts Act
Constitution of Kenya, 2010

Week 3

Arrests

General provisions relating to arrests

Arrests without a warrant
Arrests with a warrant
Validity of warrants
Irregularities and defects in arrest warrants
Constitutional issues raised by arrests

Readings

Lumumba, Criminal Procedure in Kenya, p. 12-16

Kiage, Essentials of Criminal Procedure in Kenya, p. 32-50

Week 4
Prosecution of offences
Legal basis of public prosecutions
The decision to prosecute
Challenging prosecutions
The role of the prosecutor
Nolle prosequi
Private prosecutions
Readings

Lumumba, Criminal Procedure in Kenya, p. 1-11

Kiage, Essentials of Criminal Procedure in Kenya, p. 51-69

Week 5
Charges and Information

Institution of criminal proceedings

The charge sheet
Joinder of counts
Joinder of persons
Rules for the framing of charges
Duplicity
Overloaded charges
Defective charges
Amendment of charges
3

Readings

Lumumba, Criminal Procedure in Kenya, p. 48-65

Kiage, Essentials of Criminal Procedure in Kenya, p. 70-8

Week 6
Taking of Pleas

Possible pleas
Procedure of recording a plea of guilty
Plea of guilty in the absence of the accused
Procedure on the plea of not guilty
Refusal to take a plea
Pleas of several accused
Provisions relating to the pleas of autrefois acquit and autrefois convict
Change and retraction of pleas
Plea bargaining
Recording of plea agreements by the court
Rejection of plea agreements
Withdrawal of plea

Readings

Lumumba, Criminal Procedure in Kenya, p. 67-71

Kiage, Essentials of Criminal Procedure in Kenya, p. 87-109

Week 7
Bail
The basics
Bailable and non-bailable offenses
Classification of bail
Factors to be considered before bail is granted
Sureties and discharge of sureties
Readings

Lumumba, Criminal Procedure in Kenya, p. 22-43

Kiage, Essentials of Criminal Procedure in Kenya, p. 110-136

Week 8
The Trial Process

Appearances
Adjournments
Case for the prosecution
Mode of taking and recording evidence
Close of the prosecution case
Case for the defence
Witnesses
Transfer of cases
Principles governing a fair trial

Readings

Lumumba, Criminal Procedure in Kenya, p. 72-80

Kiage, Essentials of Criminal Procedure in Kenya, p. 137-171

Week 9
Judgments and Sentencing

The basics
Delivery of a judgment
Form of a judgment
Content of judgment
Convictions for offenses other than those charged
Sentencing
Mitigating circumstances
Victim impact statements

Readings

Lumumba, Criminal Procedure in Kenya, p. 146-170

Kiage, Essentials of Criminal Procedure in Kenya, p. 172-191

Week 10
Appeals and Revisions

The basics
Appeals from subordinate courts
Number of judges on appeal
Time of appeal

Summary disposal of appeals

Powers of the high court
Retrial
Bail pending appeal
Appeals from the high court
Revision
The failure of justice test

Readings

Lumumba, Criminal Procedure in Kenya, p. 178-203

Kiage, Essentials of Criminal Procedure in Kenya, p. 193-208

Week 11
Special Proceedings and Processes

Inquests
Habeaus Corpus
Sexual offenses
International Criminal Justice
Anti-corruption and Economic Crimes
Contempt of court proceedings

Readings

Lumumba, Criminal Procedure in Kenya, p. 173-177, 189-192

Kiage, Essentials of Criminal Procedure in Kenya, p. 209-218

Recommended texts & materials

1. Momanyi, B. (1994), Procedures in Criminal law in Kenya, Nairobi: East African
Publishing.
2. Kiage, P. (2010), Essentials of Criminal Procedure, Nairobi: Law Africa.
3. Lumumba, P. L .O. (2002), A Handbook on Criminal Procedure in Kenya, Nairobi:
Law Africa.
4. Mweseli, T. (1997), An Outline of Criminal Procedure in Kenya, Faculty of Law:
University of Nairobi
5. Bradley, C.M. (2007), Criminal Procedure-A worldwide Study, North Carolina :
Carolina Academic Press
Recommended Reference Material:

1. Chipeta, B.D. (2010) Criminal Law and Procedure: A Digest of Cases, Law Africa
2. Langbein, J (2005) The Origins of Adversary Criminal Trial, Oxford University Press
3. Bibas, S (2012) The Machinery of Criminal Justice
4. Choo, A.L.T (2008) Abuse of Process and Judicial Stays of Criminal Proceedings,
Oxford University Press
5. Corre, N & Wolchover, D (2004) Bail in Criminal Proceedings
6. Davis, A.J. (2009) Arbitrary Justice: The Power of the American Prosecutor, Oxford
University Press
7. Lebovits, G (2008-2010) Judgment Writing in Kenya and the Common Law World,
Kenya Law Review, Vol. II
Methods of Evaluation
Continuous Assessment Tests (CATs)
CAT

30%

Main Exams

70%

Total

100%

Classroom Policy Issues

(i)
(ii)
(iii)

(iv)
(v)
(vi)

All students should attend all classes and actively participate

If a student fails to attend more than six (6) hours in a trimester he/she will not be
allowed to sit for the final examination
Any student who fails to sit for his or her continuous assessment tests for good
reasons will inform the course instructor and will arrange to sit for a makeup CAT
before the end of trimester examination
Student with special needs are required to see the unit instructor and discuss their
needs.
Students repeating or upgrading the unit must inform the instructor.
All mobile phones must be switched off during class hours.

Justice, Justice, Shall You Pursue. Deutronomy 16:20