CRIMINAL PROCEDURE

LECTURE NOTES
LLB II 2003/2004

Josiah M. Nyangweso

The Criminal Procedure is the process through which penal and criminal law
are applied. That is the process of the application of penal laws. It is
procedural law and not substantive law.

The essentials of criminal proceedings are:

1. To bring the accused within the power of the tribunal.

2. Preliminary investigations to ensure the crime is one, which should be
prosecuted.
3. Notice to the accused of the offence charged upon arrest accused has
to be told why he is being arrested. Notice to give charge sheet with
information against hi, for him to respond and to defend himself.
4. Opportunity to prepare for trial, procure witness.
5. A speedy trial. A trial should be conducted as fast as possible because
during the course of the trial the accused may be kept in prison as they
have been refused bail.
6. Fair trial before an impartial tribunal. Accused is given an opportunity
to say something in his defense. Through counsel of his own choice.
7. A right to the review of the case by a suitable appellate tribunal. Right
to review if the accused is not happy.

Under our jurisdiction there are 2 ways of review:

1. Review by way of appeal.
2. Review by way of revision.

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Criminal proceedings commenced in the name of the state of Kenya is tiled
R v Accused. In other jurisdiction, such cases are titled People v Accused or
State v Accused.

In private prosecution it is always the Republic because you institute in the

name of the state. The state is treated in all criminal cases as the complainant
and it is not necessarily the victim.

In law every crime is committed against the state because a crime is defined
as a wrong against the society or the state. The state is responsible for the
society. The state takes the responsibility to seek redress of the complainant
or the victim. The state protects and defends others. The real victim is also
the complainant particularly in crimes involving private property and against
the person. In all cases the real victim as a complaisant appears as a witness
for the prosecution, and therefore the complainant is not a party to the suit.
The parties are the republic and the accused. The complainant has no right to
appeal only the state can appeal because the complainant is a witness.

STRUCTURE AND JURISDICTION OF THE CRIMINAL COURTS

IN KENYA

1. In the administration of criminal law the function of the court is to

defend the society from the acts of the criminal.
2. The courts also uphold the fundamental rights of the accused person.
The courts are alive to the inalienable rights of the accused person.
3. Criminal procedure is intended to assist the court in the trial of
suspects.
4. The criminal procedure helps the court determine the guilt of the
accused.

Most trials in Kenya are conducted by the subordinate courts.

The High Court does try criminal cases but its criminal jurisdiction is fairly
limited.

The court martial has limited jurisdiction. Some courts have appellate
jurisdictions. Come courts have appellate jurisdictions ands the appellate
courts are:
i) The Court of Appeal.
ii) The High Court.

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 iii) The Senior Resident Magistrate Courts.

MAGISTRATE COURT

Established by the Kenya Constitution, the court works under Chapter 10,
the Magistrates Court Act ands the Judicature Cap 8. The Magistrate courts
are classified in 2 ways:

1) Magistrate courts;
a. District Magistrate courts:
i. District Magistrate Court 1
ii. District Magistrate Court 2
iii. District Court magistrate 3
b. Resident Magistrate court:
i. Chief Magistrate
i. Senior Principal Magistrate.
2) Sub\ordinate courts:
a. Class 1:
i. Resident Magistrate’s Court;
ii. Principal Magistrate Court
iii. Chief Magistrate
iv. District Magistrate 1
v. Senior Resident Magistrate
vi. Senior Principal Magistrate
b. Class 2
i. District Magistrate 2
c. Class 3
i. District Magistrate 3

Therefore the powers are given according to the classes to the courts in
them.

DISTRICT MAGISTRATES COURT

Established under section 8 of the Magistrate Courts Act and may be of class
1, 2 and 3.

Its jurisdiction is limited to gazetted geographical districts and by their

sentencing power. Jurisdictions of the District Magistrate are set out in
section 7(2) and (3) of the Criminal Procedure Code.

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The District Magistrate Court 1 has the same power as the Resident
Magistrates Court.

Powers:

1. It can impose imprisonment not exceeding 7 years.

2. It can impose a fine not exceeding K.Shs. 20,000.
3. It can impose corporal punishment not exceeding 24 strokes of the
cane.

What happens when a District Magistrate Court 1 determines that the

accused should be given a heavier punishment than that which they can
give? They refer to a court with the appropriate jurisdiction. The Senior
Resident Magistrate Court, the Principal Magistrate Court the Chief
Magistrate are appropriate.

A District Magistrate can try a person charged with fairly serious criminal
offences e.g. rape, assault, causing gracious bodily harm.

District Magistrate Court 2

A second class of courts has powers to impose such punishment as:

1. Imprisonment not exceeding 2 years;
2. Fine not exceeding K.Shs. 10,000.
3. Corporal Punishment of not more than 10 strokes.

Cases triable under the DM2 are theft, burglary, housebreaking, and offences
created under various statutes e.g. the Traffic Act.

District Magistrate Court 3

Power to impose:

1. Imprisonment not exceeding 12 months.

2. Fine not exceeding K.Shs. 5,000.
3. Corpora punishment not exceeding 6 strokes of the cane.

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It deal with minor offences e.g. affrays, fighting in public; for this offence
there has to be more than one person charged; drunk and disorderliness,
loitering with intent to prostitute.

It attracts light fines and discharges.

Tries offences under statutes like offences under the Tradition al Liquor Act,
the Changaa Prohibition Act; the Traffic Act.

NB: DM courts are courts of first instance, criminal trials originate here.
These courts have no revision or appellate jurisdiction; they cannot review
matters or appeals.

Appeals arising from the DMs are herd at the RMs and the High Court
depending on the classification of the DMs court.

Appeals from the DM 3 go to the RM while appeals from the DM 1 and 2 go

to the High Court.

With appeals from the DM3 there is a further appeal to the High Court,
which is the final court of appeal. Appeals from the DM 1 and 2 have a
further appeal to the court of appeal.

The DM courts are being phased out particularly DM 1 and 3.

These two classes of courts are manned by law magistrates who are not
qualified lawyers.

During colonization we began with the RM courts. The DM were created

by the independence government to accommodate the Africa district courts
manned by people who are not lawyers.

Most magistrates in Kenya are now lawyers so few courts should be headed
by lay magistrates.

DM where graduate lawyers join as magistrate is the entry point. They are
promoted to Resident Magistrate and not to DM1.

RESIDENT MAGISTRATES COURT

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Established under section 3 of the Magistrate Courts Act. They enjoy wide
jurisdiction. The RMs courts are presided over by the Chief Magistrate, the
Senior Principal Magistrate, the Principal Magistrate or the Senior resident
Magistrate or Resident Magistrate.

The Criminal Jurisdiction of the RM court covers most of the crimes and is
set out in section 7 of the Criminal Procedure Code.

Section 7(1) paragraph (a) vest the CM, the SPM, PM and SM courts with
power to pass any sentence authorized by law for the offence terrible by that
court. These courts have jurisdiction to try all serious offences except
treason and murder, which are only triable in the High Court.

Offences permitted are manslaughter, robbery with violence, arson, rape, etc.

They try offences carrying life imprisonment and death.

Section 7(1)(b) and section 7(2) vest s the RM court (distinct from others:
SRM, SPM, PM, CM) with powers to pass any sentence authorized by law
under section 2789 of the penal code i.e. stealing stock, section 308 of the
Penal code ma\d section 322 of the penal code.

The offences created under this section carry a maximum of 14 years

imprisonment, so the jurisdiction of the RM of 7 years can be exceeded for
these offences.

In respect of other offences the jurisdiction the RM is limited to 7 years

imprisonment or a fine not exceeding K.Shs. 20,000 or corporal punishment
not exceeding 24 strokes of the cane.

Section 8 of the CPC allows the Judicial Service Commission to extend the
jurisdiction of the RM so that the RM can try cases of this class - SRM or
the CJ can post an appropriate magistrate for that particular case.

RMs courts (the two classes) are courts of first instance or original
jurisdiction. They handle trails not appeals except appeals from the DM 3
court.

Under the Kenyan Law there is no provision for trial by jury there for the
magistrate is a judge for both the Law and for Fact.

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The magistrate do not sit with assessors.

Apart from trials the RMs court has jurisdiction to:

1. Preside over committal proceedings.

2. To conduct inquests.

COMMITTAL PROCEEDINGS

RMs court try criminal cases and committal proceedings. Section 233 of the
CPC - conduction of committal proceedings in respect of offences triable at
the High Court e.g. murder and treason.

The role of the RM court is to decide whether or not the person would stand
in the High Court for a capital offence.

Objective is that h high Court should not handle frivolous cases and
therefore committal proceedings are there for dismissal of frivolous cases
and serious ones are taken to the High Court.

Committal Proceedings took the form of a preliminary hearing before

magistrate and evidence is recorded by the magistrate to determine whether
the case was worth trying in the High Court. Replacement of preliminary
inquests where magistrate don’t get to the hear oral evidence. They don’t
deal with witnesses. Instead they are furnished with committal bundles
comprised of a bundle of documents relating to the case i.e. the statement s
of the witnesses and the accuses.

Any expert evidence report from a doctor or analyst is passed to the

magistrate to read in order to make a determination whether there is a case
worth trying in the high court.

1. If in the opinion of the magistrate the bundles have a caser triable at

the High Court, the accused is committed to the High Court for trial.
2. If the documents do not disclose any offence, the magistrate should
discharge the accused.
3. If the documents do not disclose the offence charged but they do
disclose a lesser offence, the magistrate conducting the committal
proceedings should charge the accused with that lesser offence, e.g. if

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 charged with murder, but documents do not show murder but show
manslaughter, the magistrate should charge the accused with
manslaughter.

INQUESTS

RMs court has jurisdiction to conduct an inquest. Inquests are conducted in

the event of sudden deaths, including cases of suicide.

They are governed by section 387 of the CPC. It covers deaths arising in
police custody, in prison, roads traffic accidents, and other circumstances
where it is not readily explainable and not possible to point u\out a suspect.

It is the duty of the police to report such deaths to the police. The role of the
courts in conducting inquests is investigatory, it is not a trial.

After the inquest, the court may identify the person responsible for the
dearth and recommend his arrest and trial.

Where the death cannot be conn3ected with the inquest the file will be
closed and that would be the end if the matter.

Suspects are treated like witnesses but there is not enough evidence to
charge them so the police just give their names to the court to investigate.

JUVENILE COURTS

Created by the Children and Young Persons Act, cap 141 of the Law of
Kenya and it is repealed by the Children’s Act, which came into force in
2003.

The Juvenile Court tries e Law of Kenya and it is repealed by the Children’s
Act, which came into force in 2003.

The Juvenile Court tries young offenders aged below 18. Under the relevant
laws there are procedures that govern juvenile cases. The procedure to be
followed is not prescribed in the CPC, but is based in the Children’s Act.

Procedure:

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 1. Matters arte heard in camera without an audience,
2. The words conviction and sentence a re not used and the offender, if
found guilty is not convicted and sentenced.

The objective is to ensure that children and young persons are not treated
like adults. The objective is to rehabilitate young offenders; therefore terms,
which are commonly associated with punishment, are avoided.

Juvenile courts are not allowed to impose a custodial sentence unless the
offender cannot be dealt with otherwise.

Young offenders are placed in probation so that they are taken care of by
probation officers and they are counselled. Other measures taken include
discharge where one is guilty but they are left.

There is only one juvenile court in Nairobi. Elsewhere juveniles are tried by
the PM and the RM courts, but they follow the procedure required when
tying juvenile cases,
]
Where the trial is by DM2 and DM3the juvenile upon being found guilty is
not sentenced there but referred to the RM fir sentencing.

Young persons during sentencing are treated rather leniently. Custodial

sentences are avoided as they expose the young offender to hard-core
criminals.

Keteta v R (1972) EA 532

Minor convicted of attempted stock theft and sentenced to imprisonment, On

appeal to the High Court applied cap 141 an stated that it was improper for a
minor to be sentenced to imprisonment and went on to discharge hi
conditionally.

Main v R (1970) EA 370

This is a robbery case involving a young person. The Children’s and Young
Persons Act compelled the court to hold that the protection offered under the
act could only be taken away but express terms of section 296 pf the penal

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code and since it does not do so the young person convicted were sent to
borstal institutions.

Thomas Odinga Mulanya v R C.A. Criminal Appeal Bo 84 of 1986.

A young person pleaded guilty to manslaughter and sentenced to three tears

imprisonment. He was seventeen tears at the time of the commission of the
crime. On appeal, the court of appeal found that he ought not to have been
sent to prison and his punishment converted to sic strokes of the cane.

COURT MARTIAL

Established under the Armed Forces Acts cap 199. It is a subordinate court.
It is designed for the maintenance of discipline among the members of the
Armed Forces. Part V creates service offences i.e. crimes that can only be
committed by members of the armed forces. These include:

1. Treachery – in case of treason committed by members of the armed

forces,
2. Cowardice
3. Offences arising out of service
4. Mutiny and insubordination,
5. Disobedience of lawful order from a senior officer;
6. absence and desertion without leave;
7. offences relation to maligning;
8. drunkenness and fighting;
9. rowdiness and quarrelling
10.Offences relating to property belonging to the armed forces, etc.

The Court Martial consists of:

1. Senior commission officer who are commission officers. These are the
Commission Officers and the Military Commission Officers. Senior
Commission Officers should be in the rank of the Marshal and above.
2. Two other members who are also soldiers,
3. A judge advocate who is either a magistrate or an advocate. Te judge
advocate is appointed with the consent of the AG by the Chief
Magistrate at the request of the Convening Officer. The rile of the
judge advocate is to guide and advice the court on matters of law.
Proceedings are conducted according to the law. He is like a judge,

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 summing up the facts and law after both parties including the
prosecution do their case. The judge advocate sums up the case for the
benefit of the court. The judge advocate is a member of the Court
Martial and therefore he does not participate in the determination of
the case. He guides the case,

An appeal lies at the High Court to the decision of the Court Martial. It is
with the leave of the Court Martial. It is not as of right.

The AG has a right in the case of an acquittal.

Look at the relevant statute for the procedure.

If the procedure is not followed the decision can be thrown out on appeal to
the High Court.

For an officer who breaks the law against a fellow member of the armed
forces, they are triable in the Court Martial, but if it is to a fellow citizen,
then the case shall be tried in a civilian court. The same principle applies as
regards the abuse of property.

HIGH COURT

The High Court is established under section 60 of the constitution and has
unlimited jurisdiction and inherent powers in its trial capacity in criminal;
cases.

It has appellate jurisdiction over criminal matters arising from the

subordinate courts.

It has country wide jurisdiction. The criminal jurisdiction of the High Court
is ser out in the CPC i.e. secriunb4 which empowers it to try any offence and
impose any lawful sentence.

Doesn’t matter that matter is murder or treason. It can try for sedition or
traffic matters, etc.

Apart from original and appellate jurisdictions it also has a supervisory

jurisdiction over the subordinate courts and inferior tribunals exercising
judicial and quasi judicial functions. This is found under section 65(2) of the

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constitution. Supervisory jurisdiction goers hand in hand with Judicial
review in exercise of the order of certiorari, mandamus and prohibition.

The order of certiorari quashes the order of the inferior court to body. It has
been used by the High Court to quash decision s of inferior tribunals in the
area of criminal law.

This is where one feels that the other court has acted in excess of its powers
by the order being illegal and irregular.

In the case of certiorari the case is R v Resident Magistrates Court in

Nairobi and the Commissioner of Police Ex Parte Ngecha Industries H.C.
Misc Application No 182 of 1998.

Rons Chesogony v Chief of General Staff and Others Civil Appeal No. 84
of 2000.

Ex Parte Ngecha Industries

A certiorari was issued to quash an order issued by the Nairobi Chief

Magistrate authorizing the police to search and enter and search the premises
of the appellant and seize d certain items contained in the search warrant
issued by a Ugandan court, The Ugandan search warrant had been issued by
the Kampala Chief magistrate addressed to the Kenya Police in Nairobi and
requiring the Kenya Police to enter the premises of the applicant in Nairobi
and search out for certain things set out in a list attached to the warrant and
if found forward by the Uganda Attorney General to Nairobi Chief
Magistrate who endorsed it. In execution of the same the Kenya police
seized some goods and removed them from the applicant’s premises. The
applicant moved to the High Court to challenge the legality of the search. In
this case, the law applicable was the Extradition (contiguous and foreign
countries)Act cap76 not the CPC. Under the provisions of this Act, a
magistrate us allowed to enclose a warrant of arrest issued in another
country issued for the arrest of a person in Kenya. The Act does not provide
for the endorsement search warrants, the order was therefore illegal and
unlawful and it was quashed. The magistrate had acted in excess of his
jurisdiction by endorsing the search warrant.

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In the other two cases the jurisdiction of the High Court was used to quash
the proceedings of the Court Martial. In both cases the procedure o the
Armed Forces act had not been complied with,

In Ronald Muge the complaint was in relation to the appointment of the

judge advocate where he latter was appointed by the CJ without the consent
of the AG. The proceedings were defective and quashed.

PROHIBITION

Prohibition is used to prohibit the doing of such acts which are ultra vires or
contrary to the rules of natural justice by an inferior court or tribunal. The
order is available where the court acts:

i) in excess of it jurisdiction;
ii) denies the accused a fair hearing.

In the case of Amrik Singh v the Resident Magistrate Court in Nairobi

H.C. Misc App. No 117 of 1982 a trial magistrate allowed an amendment of
a charge without giving an opportunity for the advocate of the accused to be
heard on objection before the amendment was allowed. An order prohibition
was granted by the High Court to prohibit further proceedings in the matter.

In Jared Benson Kangwana v AG H.C. Misc App 446 of 1996 an order of

prohibition was made to prohibit the Nairobi chief Magistrate from hearing a
criminal case against the applicant, on the grounds that the criminal trial
against the accused was an abuse of the process of court.

It was held that the said criminal proceedings against the applicant were
instigated and maintained by 3rd parties particularly the TransNational Bank
with a view to exert pressure on the applicant to pay the debt owed to the
bank. The charges against the applicant were preferred after he sued the
bank on a civil matter. The court concluded that the e was bad faith on the
part of the bank and proceeded to prohibit the trial.

In the other case the matter of an application by Kamlesh Pattni & Others
H.C. Misc. Appl. 1296 of 1998. AN order of prohibition was made
prohibiting the Kibera DMs court from proceeding with the charges against
the applicant on the basis that the charges were an abuse if the powers of
court. In the case of Pattni, the charges had been instigated by business

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rivals, the charges were intended to give credibility to the rivals counter
claim filed against Mr. Pattni.

Should a prohibition be issued against a 3rd party? Some judges argues that it
is improper for the claim to be against a 3rd party and not the court.

Deepa Panachand v AG H.C. Misc. Appl.199 of 2000

John Wambua v Principal Magistrate Court Kibera H.C. Misc Appl 328
of 2000

In both cases H.C. refusal to grant an order fro prohibition to stop a criminal
trial. In both cases the judge stated that the complain was real that the 3rfd
party rather than the court was acting improperly and there is no basis of
prohibiting the court.

In the Wambua case the complainant was that the KWS was using the
prosecution to prosecute the applicant.

The H.C. also has revisional jurisdiction under the section 362 and 367 of
the CPC. Revisional jurisdiction is intended for correction of errors at the
trial court which are not appealable in law. It is therefore supplementary to
the appellate jurisdiction of the High Court.

Revision was sought in Obiero v Republic (1962) EA 650 by the state for
the enhancement of the sentence from absolute discharge to conditional
discharge. The state was of the opinion that the discharge occasioned
injustice.

The tae had no right of appeal and the only way of attaching the sentence
was by way if revision. The High Court has the power to revise on its own
motion without being moved by any of the parties.

The High Court can also revise a trial court order of a party who has the
right to appeal but does not appeal. R v Singh (1957) EA 882.

Revisionary powers should not be exercised where an appeal has been

launched. Revision is sought mainly in cases wirer there are errors e.g.
misquoting provision s of the law. In civil cases revision is referred to as
review there is an apparent error in discovered after the trial.

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The High Court has jurisdiction to issue a habeas corpus order. This is like
other orders in a prerogative order and is issued at he discretion of the H.C.
and it secures the release of any person and authority. The High Court uses
the same to execute control over the police and prison authorities where they
hold a person without legal authority. Provision is under section 389(2) of
the CPC and it literally means “produce the body” as is directed at the
person holding the applicant.

Re Ali rehman (1960) EA 302

An order of Habeas Corpus issued and directed at the commissioner of

prisoner and eh officer in charge off Luzira prison provision in Uganda to
release the applicant who was legally in prison.

Re Application of Muthoni Muriethi on Behalf of Mwangi Stephen

Mureithi (Nairobi H.C. Misc Criminal Appl 88 of 1982). Mwangi was at
the time Assistant Director of the Intelligence and Moi transferred him to the
Manager of the Uplands Bacon Factory. He was arrested and held in custody
with his lawyer, John Khaminwa. The wife sought an order of habeas
corpus. Unfortunately, the court did not get to issue the order for he was
detained.

The order was not against the director of the CID to produce the body of
Mwangi Stephen Mureithi.

Republic v Commissioner of Police and Director of CID Ex Parte Raila

Odinga (Nbi. H.C. Crim App 344 of 1988).

Brought by the wife of Odinga after he was arrested before he was detained.

Re Ibrahim (1970) EA 168

It has been held that High Court can only issue in respect of a living person.

Held in Stephen Baraka Karanja v R (Nbi High Court Crim App 374 of
1998). The case was at ht height of the Mwakenya. Karanja was arrested in
Limuru disappeared for a week. The wife sought the order. Police were
unable to state his whereabouts, he had been tortured and killed and then
buried. The state argu4e that Habeas Corpus could not issue for the person

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was already dead. The judge held that Habeas corpus means produce the
bodies.

The CJ then decided to change the case to Akilano Akiwumi instead of

Schofield (the police officer who had taken him to Nakuru, tortured, killed
and buried him) who said that Habeas Corpus applied only in regard to
living persons.

JURISDICTION IN CONSTITUTIONAL MATTERS

High Court has jurisdiction over the constitutional matters whether civil or
criminal.

Section 84 and section 67 of constitutional.

Section 84 the High court protects the fundamental rights of individuals.
Enables individuals who are complaining of infringement of their rights to
approach the High Court. This provision has been used to prohibit criminal
proceedings which are in the opinion of court an abuse of court process.

Stanley Munga Githunguri v R High Court Crim Appl 271 of 1985

The High Court ruled that the prosecution was an abuse of he process of
court and granted a prohibition order under the section 84 of the constitution.
Section 84 would be applied where judicial review cannot be done and is not
available.

Section 67 of the constitution places primary duty of interpreted the

constitution on the High Court. In the magistrate’s court whenever a
constitutional issue arises during trial should refer the matter to the High
Court for interpretation. This is essentially a reference by a magistrate i.e. it
is the magistrate who refers the matter to the High Court on either its own
motion or on application by the parties.

Reference initially goes to the CJ who must probate on the basis of merit. If
he finds merit, he should appoint a constitutional court.

He has stated on a number of cases that the CJ has exclusive administrative

power to examine the issue and determine whether it justifies the convening
of a constitutional court.

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Githungiuri v R Misc Appl 180 of 1985.
G.B.M. Kariuki v R H.C. Misc App 382

Samuel Okello & 3 Others v Chief Magistrates Court Nairobi H.C. crim
App 182 of 2000.

Here the counsel for the accused had applied before the magistrates court for
a number of documents to be furnished to the accused by the prosecution.
Facilities to help defense included statements recorded at inquiry and
documents of evidence for the trials.

A constitutional court appointed a=under section 67 must be made up of 3

High Court judges whereas a court appointed under section 84 need not have
3 judges but the CJ may determine how many judges will hear the case.

COURT OF APPEAL

Established in 1977 after the collapse of the EAC. Established under section
64 of the constitution and is the highest court in the country.

It enjoys appellate jurisdiction conferred by section 3 of the Appellate

Jurisdiction Act cap 9. It has no original jurisdiction and therefore cannot
revise a decision of the high court and cannot enhance a sentence.

It hears appeals from the High Court whether original or appellate. Some
acts of parliament make decisions of the High Court final so no appeal in
such cases can lie in the Court of Appeal. For example appeals from court
martial under the armed forces Act cap 499

Kabilu v R 1982 – 88 KAR 584

Applicant had been convicted by a court martial of taking part in a mutiny

and sentence d to 8 years imprisonment and dismissed from the armed
forces. His appeal to the High court was dismissed and he filed a further
appeal to the court of appeal which was dismissed for being incompetent for
want of jurisdiction of the court of appeal.

INITIAL STAGES OF THE CRIMINAL PROCESS

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Substance of Procedure

ARREST

Occurs when a person restrains freedom of movement of another, it amounts

to a deprivation of personal liberty. Under the Kenyan Law, enjoyment of
fundamental rights and freedoms is subject to public interest. There is a
provision for derogation from the rights and freedom for public interest.’

Section 85 provides fro derogation for the same of public security. Right to
liberty and movement is enshrined in section 82 of the constitution. For
criminal procedure purposes the right to liberty may be derogated:

1. In the execution of a court sentence.

2. In the execution of an order of the High Court and the Court of Appeal
for contempt.
3. In the execution of a valid court order for the fulfillment of an
obligation of those in law.
4. To bring a person before the court an order . This is where he court
issues a warrant of arrest for person to be brought to court,
5. On reasonable suspicion of a person being about or having committed
a criminal offence,
6. For those below age of majority for their education and welfare e.g.
children in custody.
7. Purposes of preventing spread of contagious and infectious diseases.
8. Confinement of persons suspect of being of unsound mind, people
addicted to alcohol or to drugs for the purpose of their case.
9. For the purposes of extradition from Kenya / prevention of entry.
10.When here is lawful need to generate a warrant for detention.

The CPC does not define an arrest and there is no definition of this so we
resort to case law as in Hussein v Chang Fook (1970) 2 WLR 441 where
Lord Devlin stated that an arrest occurs:

1) when a police officer states u terms that he is arresting; or

2) when an officer uses force to restrain the individual concerned;
or
3) when by words or conduct the officer makes it clear that he will
use force if necessary to restrain the individual from going
where he wants to go; but

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 4) it does not occur where he stops an individual to make
inquiries.

The provisions relating to arrest found in section 21 – 40 of the CPC.

Section 21 provides that in making an arrest the arresting officer shall

actually touch or confine the body of the person being arrested unless the
person submits to the custody either by word or conduct.

Section 24 provides that the arrested person must be subject to more restraint
than necessary to prevent escape. Once a person submits to custody of
arrestor he should not be tied up. It is a requirement of a lawful arrest that
the arrested be informed of his arrest.

Section 72(2) of the constitution – any person arrested and detained should
be informed as soon as is reasonably practicable tin a language he fully
understands the reasons for his arrest. This requirement arises from the
Common Law.( Mwangi s/o Njoroge v R (1954) 21 EA 377)

Wheatly v Lodge(1971) 1 All ER 173.

In some circumstance s it is not necessary o inform the arrested person the

reason for arrest for example where the arrested:

i) person knows the nature of why he is being

arrested;
ii) where he suspect runs away from his arrestors.

Christine v Leachinsky (1947) AC 573 (1946) KB 144

Court here discussed the circumstances where it is not necessary to inform

the person of reasons for his arrest.

1. An arrest can be effected either with or without a warrant.

2. An arrest can be enforced either by a law enforcing agent (police, DO,
DC, and Immigration Officer)or by a private person.
In either case the pier of arrest must be exercised reasonably within the law.

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Where unreasonable force is used or where an arrest is unlawful note that
there exists remedies in civil criminal law to redress wrongs committed
against the victims. This is a constitutional right - the right to personal
liberty so if it is to be deprived there should be remedies.

ARREST WITHOUT WARRANT

I) By Police Officers

Police officers are bound by virtue of the police act and Administration
Police Act to maintain law and order in society.

In the normal course of their duty they carry out arrests,

Most arrests without warrants are committed by police officers during the
course of their duties. Powers of police officers in arrest, prevention of crime
and investigations are covered by the CPC and other statutes.

The CPC is the main legislation covering arrests.

Section 29 of the CPC sets out circumstances in which police officer may
arrays a suspect without a warrant by the curt. They are:

1. Person suspected of having committed as cognizable offence.

2. person who commit a breach of the peace I his presence.
3. person obstructs officer as he exercises his duty;
4. person who escapes or attempts to escape from lawful custody;
5. person who is suspected upon reasonable ground of being a deserter in
the armed forces;
6. person found in a street or public place at night and suspected
reasonably of being there for an illegal purpose or unable to give a
reasonable explanation or give account of themselves.
7. person with instrument of housebreaking without reasonable excuse;
8. reason of possession of anything suspected to be stolen property;
9. person reasonably suspected of having committed an extraditable
offence (Offence committed in another country by suspect or offence
where one may be extradited from Kenya).

20
 10.Person for whom he has reasonable cause to believe or not been
issued. Under section 30 a police officer may arrest without a warrant
persons who are vagabonds, habitual robbers and thieves.

Under section 32 – a person who has committed a non-recognizable offence

( offence in respect of which police require warrant of arrest – minor
offences) refuses to give his name or residence, police may arrest without a
warrant.

What happens to people arrested without a warrant.

Section 33 of the CPC requires that a person arrested without a warrant e

taken to a magistrate or person in charge of police station as soon as possible
and thereafter to court.

The decision to charge the person taken by the OCS.

Section 3b – when arrested person is taken to the police officer in charge of

the PS the Police Officer may inquire about the case and release of the
person on bond unless he is suspected of having committed a capital offence
or the offence is found to be serious in nature.

The officer in charge may set the suspect free altogether if he finds that there
is insufficient evidence altogether.

The provision of the CPC are further entrenched by section 73(3) of the
constitution which provides that the arrested person who is not released
should be brought to the court as soon as is reasonable practicable. At any
rate within 24 hours of his arrest in cases of offences other than those
punishable by dearth e.g. burglary, theft and within 14 days of arrest for
capital offences.

Section 73 is an inclusion in the constitution – before it was that the people

should be brought to court within 24 hours. There is an amendment. It was
found that it would be unfair if one would be arrested and charged
immediately when they were innocent.

21
In Imanyara v Nairobi H.C. Misc App. No 125 of 191 it was stated that in
situations here a person is arrested without a warrant, 3 statutory provisions
are relevant. These are:

1. Section 72 of the constitution – provision relating to the deprivation of

property.
2. section 3b of the CPC –p Provision relating to the production in court
of a person arrested without a warrant.
3. Section 29 – 39 of the constitution – provisions relating to arrest
without warrant.
4. Also stated that the effect of a combination of the provision of the
CPC is that the prisoner should be brought to court as soon as is
reasonably practicable as soon as he ends up in police custody if he is
not released on bail from the police station.

3) BY MAGISTRATE

Section 38 of the CPC empowers the magistrate to personally arrest an

offender or order any person to do so when an offence is committed in his
presence or his jurisdiction.

He may thereafter release the offender on bail or commit him to custody.

Under section 39 of the CPC a magistrate may arrest or o4rder arrest in his
presence within the local limits of his jurisdiction any person whose arrest
by magistrate is competent oat the time and can issue a warrant of arrest. He
can only arrest a person within his jurisdiction(????).

It was stated in the case of Kionywaki v R that in effecting an arrest

magistrate acts as a judicial officer and not in an administrative capacity and
cannot be subject to civil and criminal proceedings.

3) PRIVATE PERSONS

Section 34(1) grants a general power to arrest anyone who in his view commits a
cognizable offence or who he suspects of committing a felony. This enables members of
the public to arrest someone.

Section 34(2) allows property owners and their servants or agents to arrest without
warrant any person who comm8itrs any offences of damage or injury to property.

22
Private persons should use reasonable force just like police where the person to be
arrested resists.

Use of unreasonable force to effect an arrest my lead to criminal and civil liability
(assault/false imprisonment and battery).

In Uganda v Muherwa A private person who used a weapon to incapacitate the deceased
suspected to be thief in the process of which he died was prosecuted and convicted of
manslaughter.

In Beard and Anor v R the appellants, two private persons arrested the complainant, tied
him and assaulted him although he made no attempt to escape. Delayed in handing him to
the police. Prosecuted for assault and unlawful confinement. Convicted of these offences
as they used unreasonable and unnecessary force.

Under section 35a person arrested by a private persons without a warrant should be
handed over to the police without delay. The police, depending on the circumstances,
should rearrest him or set him free.

4) BY CHIEFS

Section 8 of the Chiefs Act (cap 148) empowers a chef and an assistant chief to arrest any
person for the purpose of preventing them from committing a crime in their jurisdiction.

Empowers them to arrest any person who commits a cognizable offence. In the eyes of
the law chiefs and the assistant chiefs are police officers.

In Lamabutu v R the court recognized chiefs, assistant chiefs, PCs and DCs as police
officers.

AREREST WITH WARRANT

Mainly required for minor offences and misdemeanors (less than 3 years). Warrants a\of
arrest are issued to secure attendance of person in court. This procedure of securing
attendance is applied mainly in cases where the proceedings are commenced by first\
laying a charge in court.

After lying a charge in court you seek his attendance in court as opposed to police arrest
then the accused is taken to court.

This procedure is mainly used by private prosecutors e.g. labour officers.

As an alternative to an arrest warrant, he prosecution can apply for summons to issue

against the accused person.

23
Under section 90 with respect to private prosecutions upon receiving a complaint fled by
private prosecutors, the courts may either issue summons to accused or warrant to compel
attendance in court.

The proviso to section 90 states that a warrant be issued unless a complaint is made by
private prosecutor.

Under section 100 a warrant of arrest may be issued to a person served with a summons
to appear in court.

Section 101 warrants of arrest are issued where the accused disobeys summons.

Section 102 – warrant s of arrest must be in written form signed by the magistrate and it
must bear the seal of the court.

It must briefly state the charge against the suspect and describe the suspects details so that
the poison receiving the warrant knows the offence charged.

NB: A warrant of arrest is directed to a particular person ordering him to arrest the person
in respect of whom it is issued and bring them to court.

Person is OCS, OCP.

Not issues generally to the police, but a particular person is that they are accountable.

Warrant of Arrest remains in force until either execution o cancellation by the courts is
issued.

Kingori s/o Kiranditu v R

It was stated that any person or police officer to whom warrant is issued is bound to
execute it like the court which issues the warrant, he is protected by judicial immunity.

Sometimes in private prosecution when the police is unwilling to arrest a person, once
one goes to court a arrant of arrest is issued the police have tom\ comply.

Section 103, the court issuing a warrant may direct security t be taken in respect of an
offence other than murder, treason, rape in which case the officer such release such
person in court if the warrant allows for the release of the person on bond.

The warrant of arrest may be directed to the following persons:-

1) Police officers – usually to one particular officer or officer in charge or to

all other officers in a particular division.

24
 2) To a land owner, manager and farmer of land. Warrant issued to such
persons is to allow them to arrest any person who enters their land. On
arrest they should hand over the accused to the nearest police officer.
3) By virtue of section 107 the person effecting arrests should notify the
substance of the warrant to the suspect and if he is required b y the suspect
and show him the warrant.

Section 22 imposes duty on an occupant of premises or any person in charge of premises

to afford all reasonable facilities of arrest i.e. to allow the person to enter premises
discharging a warrant arrest, i.e. to allow the person to enter promises to effect an arrest if
there is a reasonable suspicion that the suspect is in those premises. The facilities should
also be provide to such persons to enable them to search the premises. Where no
reasonable facilities are allowed (I.e. access) the officers may break in even without a
warrant. Only break in when they are not allowed entry).

Section 22(2) women in occupation of premises who are not suspects and who by custom
do not appear in public should be given reasonable facilities to withdraw (Muslim
Women).

Section 23 allows arresting persons to break out of the premises to liberate themselves.

The CPC provide elaborate procedure where the arrest has to be effected outside the
jurisdiction of court.

Section 10 – The warrant may be forwarded by part or otherwise to the magistrate within
the local limits where the jurisdiction it I to be executed.

The magistrate to whom the warrant is forwarded should. Endorsement is crucial (within
his jurisdiction). It is his responsibility to cause it to be executed.

Under section 111 instead of the warrant being forwarded to the magistrate within whose
jurisdiction local limits to which it is to be execution the issuing the court may direct it to
a police officer to take it for endorsement by a magistrate within the local limits.

NB: the police officer may execute the warrant without the endorsement if there is reason
to believe the delay will be occasioned by obtaining the endorsement. Officer has to be
executed certificate explaining the same. If it is not so endorsed and if it is enforced
without endorsement, the arrest will no doubt be unlawful/.

A person arrested outside the local jurisdiction of the issuing magistrate may be taken.
Before the magistrate within the local limits of whose jurisdiction the arrest was made.
Necessary to avoid holding the person for more than 24 hours. Apart from the police, the
court of law and private persons, other tribunals discharging functions of a judicial nature
have powers to issue warrants of arrest. For example the Rent Tribunal, judicial
commission of inquiry.

25
Section 30 of the National Assembly powers and privileges Act, vest the powers on the
members of the National Assembly to arrest.

SEARCH AND SEARCH WARRANTS

Like arrests, the search of the premises of the suspect and seizure of the
property of the suspect infringes on the fundamental rights and freedoms of
the individuals and in particular the right to privacy.,

The enjoyment of the right to privacy of the freedom for the invasion of
privacy should be weighed against the rest of the society at large in finding
out wrongdoers and redressing crime. The invasion of privacy of the
individual in the interests of the society should be done properly within the
law.

Search warrants governed by section 118 – 122 of the CPC

A search warrant is defined as an authority to search a place for evidence of

a crime which is suspected or believed to have been committed or to make
an arrest of a suspected criminal.

A search warrant authorizes the person to whom it is addressed to enter a

place or premises described in the warrant. If the item is found, it should be
siezed and taken to a court having jurisdiction.

Note: Warrant described the premises to be searched and the item to be

searched for. If the premises is not the right one it is an illegal search and the
owner may commence proceedings on tortuous liability.

A police officer having reasonable suspicion that there is evidence in a

certain place for the investigating of a crime, he may apply to the court for a
search warrant authorizing him to search the place.

Under section 118 of the CPC it is necessary that the be evidence of a

reasonable suspicion which must be given on oath. The Police officer must
show hat there is reasonable ground for suspicion and given by way of an
affidavit sworn by the officer.

Under section 119 of the CPC a se4arch warrant may be issued on any day
including Sunday for urgent matters.

26
A search may be conducted witch or without a search warrant. Where the
same is conducted with a search warrant under section 120 of the CPC there
is an obligation on the person in charge of a closed place or premises to
allow ingress and egress in and from the premises to allow them to enter and
t leave for searching.

Failure to provide such allows the police officer to use force to enter or
break out of the premises.

By virtue of section 104,106, 109, 110 and 111 of the CPC on warrant of
arrest also applies to search warrants, i.e.:

1. Warrant should be in the hands of the magistrate or the judge issuing it

and it must be signed;
2. it should bear the seal of the court;
3. it must state the offence against the accused person in respect of
which it is issued;
4. may be directed to one or more police officers or to all other police
officers in the relevant area.
5. If it is to be conducted outside the jurisdiction of the court it must be
endorsed by the magistrate within the local limits of which the search
is to be conducted.
6. May be executed without endorsement in courts where there is delay.

The directions in the warrant must be strictly observed – articles, items not
in the warranted should not be seized. Only what is mentioned unless they a
r likely to produce additional evidence as to the identity of the items or they
are relevant to the charge.

The seizure of irrelevant articles is legally unjustifiable and in most cases

causes damage to the prosecutions case.

Vivendi v R (1957) EA 355

Appellant is convicted in district court of Bussaga of being in possession of

property reasonably suspected if having being stolen. Failure to give a
satisfactory account of possession. Police was acting on information
received. They searched the house and shop of the appellant looking for a
camera and expensive sunglasses which they did not find. Instead they found

27
a tiny box and exposure between under the counter said to have been left by
V 3 months ago. V admitted leaving expensive meter with the appellant but
denied that the meter in question was the on deposited by him with the
appellant. V called as prosecution witness and denied ownership of the meter
found in the shop. He denied ever depositing the exposure with the
appellant. No search warrant produced by police and the only evidence in
the shop was the oral evidence of the police against him which was
inadmissible under section 63 of the evidence ordinance.

It was held that it is possible to establish that a particular search was

conducted under the authority of a warrant without proving contents of
warrant.

The evidence did not justify a reasonable suspicion that the exposure meter
had been stolen.

Circumstances where a search is conducted without a search warranted.

Where a person who is being sought by the police to be arrested enters a

place where the process of getting a s4earch warrant would give the fugitive
a chance to escape, section 22 of the CPC allows the police to enter such a
place and search for the person t be arrested even thought they do not have
search warrant.

NB: The police should only carry out a search fro the person when they are
in hot pursuit of the a person and they are afraid that he would disappear if
they wait for a court to give them a search warrant.

Section 26 of the CPC empowers the police to detain and search aircraft,
vessels vehicles, and persons and if they have reason to suspect the same
contains stolen property or property unlawfully obtained.

This person may be exercised by other persons with permission s from the
commissioner of police e.g. officers of immigration department, income tax,
customs and excise department.

In all these circumstances the suspicion must precede the process of

stopping a person for a search. Suspicion arising from the stopping of the
search renders the action of the police illegal under section 26 of the CPC.

28
Where section 26 discusses at length

Keityo v Uganda (1967) EA 23

Koech v R (1968) EA 108

Section 27 A search to a woman must be done by another woman.

CHARGES AND INFORMATION

Under section 89n of the CPC criminal proceedings may be instituted in 2

ways:

1. By way of making a complaint;

2. by the production in magistrate court of a person who has been
arrested without a warrant.

COMPLAINT

Any person affected by the conduct of another may make a complaint to a

magistrate having jurisdiction.

Under section 89(3) the complaint may either be oral or written.

Oral – it should be reduced into writing by the magistrate. This helps

illiterate people who cannot write an affidavit on oath. Thereafter the
magistrate should sight the same.

Under section 89(4) the magistrate upon receiving the complaint should
draw up or cause to be drawn up a formal charge based n the information
given by the complainant.

Magistrate may refuse to admit the complaint or formal charge drawn up if

the same does not disclose any offence, He must give reasons for refusing to
admit a complaint. These proceedings are in chambers and are not in open
court.

The process of commencing proceedings is not commonly used in private

prosecutions. Otherwise a complaint is usually made at the police station.
Police conduct preliminary investigations and then arrest accused person or

29
make a complaint to magistrate then get a search warrant and then the arrest
warrant.

PRODUCTION OF THE ACCUSED IN COURT

Where the accused is arrested without a warrant the law requires that they
are brought to court as soon as possible without delay.

Under section89 the arresting officer may draw up the formal charge against
the occupied and present him to the magistrate(section 89(4))

Where the formal charge is drawn by the police if it should be signed by the
officer in charge of the police station.

Alternatively the accused may be presented to the court where the magistrate
under section 89 (4) may draw up and sign the same.

Both circumstances under section 89(5)may decline to admit the charge if

the charge does not disclose any offence.

The court does not normally draw the charge.

WHAT IS A CHARGE

A charge is a complaint formally drawn up. A formal written accusation of

an offence is drawn up by the magistrate or police officer and signed as
required by law for use in a c criminal trial or preliminary proceedings
(committal proceedings).

A charge is an equivalent of pleadings in civil cases. It contains allegations

against the other party.

It is drawn up to inform the court of the offence allegedly committed by the

person it is called upon to try.

To inform the accused of the allegations against him so that he can prepare a
defense.

Mandatory requirement that a charge must be based on some known

offence

30
Under section 77(8) of the constitution, it is provided that no person should
be convicted of an offence unless the offence is defined in written law.

Each charge is based on known offence in written law. The charge should be
in the prescribed form. Section 134 of the CPC prescribes that it should
contain 2 essential elements:-

i) The statement of the offence

ii) The particulars of the offence.

Look at the second schedule of the CPC pages 150 – 156 for the
prescribed forms.

The charge should describe the offence briefly and plainly and concisely. It
should not contain any evidence. Technical terms should not be used.
Because this is a document to be given to the accused who is a simple
person who does not understand such terms. Therefore it should be in
ordinary language for ordinary people to understand.

The statement of the offence usually states the law and the procedure and the
particular section of the law which have been allegedly offended.

The particulars of the offence should contain the date and the place where
the offence was allegedly committed, the subject matter of the charge (acts
which make it an offence). The particulars should contain the identity of the
complainant and accused, for example to whom the house burnt belonged to.

With respect to sections the requirement is that the charge should state the
sections and subsections of the offences charged. Thee penal code or statute
may create a number of offences in one section so sometimes the charge
may state the wrong or non-existent section or subsection. The effect of such
lapses would depend on whether the same occasion or a miscarriage of
justice.

If in the opinion of the appellate court no injustice was occasioned on the

accuses by citing the wrong section, the conviction shall stand.

31
However where the court sees the citation of the wrong section causing a
miscarriage of justice the trial would be declared a nullity.

Avone v R (1969) EA 129

Appellant was charged with three counts of obtaining credit by fraud or

forgery and of impersonation. The relevant sections of the penal code under
which 2 of the counts were laid were misdescribed. The appellant was
convicted on all 3 counts.

He appealed on grounds that the conviction was based on a defective charge

and that therefore the conviction was a nullity in law. The High Court
dismissed the appeal and found that the misdescription for he charge had not
occasioned any prejudice on the appellant.

Similarly in Sabur v R (1958) EA 126 the appellant was charged with

committing a traffic offence contrary to section 39(1) instead of being
charged under section 40(1) of the Traffic Ordinance of 1951. Section 39(1)
of the said statute did not create the offence was not arrested by section 39
but by section 40.

He was tried and convicted. The appellant was tried and convicted He
appealed against the conviction grounded on the defectiveness of the charge
and that it should be dismissed.

It was held that since the particulars of the offence were adequate to inform
the appellant of the offence with which he was charged there had been no
failure of justice and the defect was curable under the CPC section 382
which provides that unless the defect in a charge occasions a failure of
justice or prejudices an accused person an order for conviction based on the
defective charge should not be quashed.

Where grave defects exist the court should declare the charge defective and
improper. Particularly where the particulars of the charge do not disclose the
offence.

Uganda v Keneri Opidi (1965) EA 614

32
The particulars of the offence should be clear in order to enable the accused
person to know the offence he is charged with. The charge should be such
that it is easy for them to defend themselves. Clarity is a requirement.

Musoke v Uganda (1972) EA 137

It was held that the charge of robbery which stated that a complainant was
robbed of household goods without stating the identification and particulars
of the goods stolen, did not disclose the offence of robbery. State that the
goods were stolen so that the accused know what they stole.

Kigecha Njuga v R EA 773

The accuses while driving a disguised car was chased and arrested by police
from a tip off by a n informer. Under the driver’s seat the police found a
Simi. He was charged with being armed by day with the intent to commit a
felony contrary to section 305(1)(d) of the penal code.

The felony that the accused was charged with was not stated. He was
convicted and on appeal the High Court set aside the conviction on the basis
that the intended felony ought to have been disclosed din the charge if there
was doubt a to the intended felony, different felonies should have been
stated in the alternative.

Nahashon Marenya v R Nairobi H.C. Criminal Appeal 786 of 1982

Appellant had been charged with failing to comply with a curfew restriction
order, contrary to section ((1) of the public order Act. Particulars of the
offence did not disclose the details of the curfew restriction order that the
appellant had allegedly failed to comply with, when the curfew order started
and ended.

It was held on appeal that the charge did not disclose an offence. The details
were insufficient. They did not disclose enough details to assist the accused
in his defense. Todd J said of the charges and particulars:

“charges and particulars should be clearly framed so that the accused person
may know what they are charged with and proper inferences should also o
be made otherwise confusion may arise and if confusion arises it cannot be
said that failure of justice may not have arisen.”

33
An error in the particulars is not necessarily fatal to the charge unless it has
occasioned injustice on the appellant,

Mwasya v R

Sometimes the charge may contain no particulars at all or it may contain the
wrong ingredients. A charge would be incurably defective for lack of
particulars. The accused ought to be discharged.

Kubanisi v R (1965) EA 572

The charge was framed in the following terms:

Particulars of Offence

Attempted to commit an offence contrary to section 398 of the penal code.

Particulars

Wander Reuben Kubanisi on the 29th of January, 1965 at 8.00 pm at

Bungoma Railway Station attempted to commit a felony contrary to section
389 of the penal code.

The appellant was tried and convicted. On appeal the High Court found the
charge barred for uncertainty as it did not disclose the felony alleged to have
been committed.

A charge would also be incurably defective if it contains the wrong

ingredients of the offence or if it omits an essential ingredient.

Yosefu and Anor v R

The Appellant was charged with being in possession of game trophies

without a valid license contrary to section 14 of the Games (Preservation and
control) Act ( a Ugandan Statute) The trophies were listed as 17 drums made
put of zebra skins and 40 pieces of zebra skin. Section 14 of the Act provide
that it shall be an offence for any person to possess any other part of any
animal which has been killed captured etc. The accused pleaded guilty and
was sentenced to pay a fine.

34
On appeal he held that the charge was defective in that it did not allege an
essential ingredient of the offence, i.e. that the skins came from animals
killed, captured in contravention of the Act. Spry J said that it is essential
that every charge should allege all the essential constituents of an offence.

The appeal was allowed.

Ngige s/o Gatonye v R

Appellant was charged with moving maize without a permit contrary to

section 24 of the Maize Marketing Ordinance. On appeal they found that the
particulars of the charge did not conform to section 24(2) of the ordinance.
The particulars do not refer to any such order. The charge should have stated
that the maize was moved without a permit.

It was held that the charge was bared because it did not mention the order
concerned. The relevant order to be mentioned as contravened was the
Maize Marketing (Movement of Maize Products) Order.

Shah v R

This case shows that in cases of stolen property, the charge will not be
barred or defective if it omits to name the owner of the property. A
conviction based on a charge where the charge omits to name the owner of
the property cannot be c=quashed on that count provided there is evidence
that the property has been stolen.

35
HOW TO FRAME A CHARGE

Section 137 of the CPC provides detailed rules for the framing of a charge.

PART A

The form and structure of the charge:

1. The charge should commence with a statement of the offence charged called
“statement of offence””.
2. The statement of the offence should describe the offence in ordinary language,
without stating all the essential elements of the charge. Disclose the section of the
statute or enactment of the offence.
3. The form of the charge should conform as nearly as possible as the form provided
in the 2nd schedule of the CPC.
4. Where the charge contains more than one count or the charge has various offences
the counts should be numbered constructively.

PART B

Description of Property

1. Description of property should be in a simple and straightforward language which

is easy to understand.
2. It should indicate clearly the property referred to.
3. Where the property is owned by more than one person, it should suffice to
describe the property as being owned by one of the persons. You do not have to
list all the persons.
4. If the property is owned by a body of persons with a collective name, it would to
use the collective without naming any individual owners,
5. If property belongs to or is provided for use by a public establishment, service or
department, it may be described as policy. It may be described as property of the
government.
6. If there are coins, bank notes or valuable currency, these may be described as only
money.

PART C

Description of Person

1. The description or designation of the accused person or of another person to

whom reference is made should be sufficient to identify him. Use names.

36
 2. If the name of the other person is unknown or for some person it is impracticable
to give such a designation or description, a description may be given or described
as a person unknown.

PART D

Documents

1. These should be referred to by name or by designation or purport.

2. there is usually no need to state the contents of a document in the particulars of a
charge.

PART E

Provisions as to statutory offences

Where an enactment constituting and offence states the offence to be the doing or the
omission to do any one of any of the different acts in the alternative or the doing or the
omission to do any act. In any one of the many different capacities or with anyone of the
different intentions or any part of the offence in the alternative, the act, omissions,
capacities or intentions stated in the alternative in the count charging the offence. Section
181 of the CPC and section 21 of the CPC.

DUPLICITY OF CHARGES

It is a legal requirement that a charge should not suffer from duplicity. Duplicity occurs
where the charge or count charges the accused of having committed two or more separate
offences, It is said to new duplex and barred for duplicity. Duplicity occurs when a statute
creates offences in the alternative, Section 86 of the Traffic Act illiterates for offences
created in the alternative e.g. causing death by driving a motor vehicle:

a) driving recklessly;
b) driving at high speed.
c) Driving in a manner dangerous to the public.
d) Leaving the motor vehicle on the road in a manner dangerous to the public.

All these are stated in the alternative so that you cannot be charged of two or more but
only one of the alternative.

A count charging the accused of causing death by driving the motor vehicle recklessly
and at high speed is duplex. The charges should be expressed in the alternative:

Mwambalafu v R (1966) EA 459

37
The appellant was charged with the alternative counts of an offence i.e. the offence of
arson and attempted murder. The particulars of the charge o arson alleged that the
appellant had set on fire two houses, one belonging to A and the other belonging to B The
houses stood more than 100 yards apart.

He was charged with one count of murder and one count of arson. The particulars stated
that he attempted to cause the death of A and his wife by setting on fire 2 house one A’s
and the other B’s. Evidence showed that the appellant had attempted murder on 2
occasions. The first , he burnt A’s house and when A took refuge in B’s house, he burnt
B’s house as well. The question was whether there was duplicity.

It was found that yes there was, with respect to the arson charge as there were two
offences arising from 2 acts of arson. Secondly, there was also duplicity with respect to
the attempted murder hence there ought to have been two charges off attempted murder.
Thirdly, the attempted murder counts should be framed in the alternative. There ought to
be 4 counts and not 2 but the e second attempted murder count should be in the
alternative.

Saina v R (1974) EA 83

The appellant was charged on a single count with the offence of housebreaking, theft and
handling stolen property. He was convicted but on appeal the High Court found the
charge barred for duplicity. It was found that one count charged 3 separate offences i.e.
shop breaking contrary to section 306(a) of the penal code, handling stolen goods
contrary to section 322 of the penal code. It was forth held that each offence should be set
out in a different count. The charge of handling stolen property is in the alternative. The
appellant was charged.

Bhatt v R (1960)

The appellant was charged with being in possession of obscene material, contrary to
section 181(a) of the penal code.

It was alleged that the appellant for the purpose of or by way of trade for the purpose of
distribution or public exhibition had in his possession 37 photographs of an obscene
nature which could tend to corrupt the morals of any person etc. Section 181 talks of
alternative purposes.

It was held that (on appeal) the particular motive why the appellant has the photos should
have been averred to the purposes. It 2as wrong for the charge to refer to many purposes.
The averment of several purposes made the charge barred for duplicity. Each of the
several particular set out in the charge constituted a separate offence. Charging the
accused in this mannered prejudices his defense.

Koti v R (1962) EA 439

38
Appellant was charged and convicted of wrongfully attempting to interfere or influence
witnesses in a judicial proceeding either before or after they had given evidence contrary
to section 2121(1) of the penal code. On appeal, it was held that the charge was duplex,
i.e. it charged with two offences i.e. interfering with the witness before and after. They
should state if it was before or after. If it was before and after there should be 32 counts.
Duplicity is allowed in certain circumstances. There are exceptions to the general rule
that count should not charge an accused with more than one offence.

Exceptions to the General Rule

1. Where the form of preferring a charge is allowed by statute. The second schedule
of the CPC authorizes charging of 2 offences in one count in respect of:
a. The offence created under section 330 of the Penal ode in respect of false
accounting;
b. Second schedule authorizes offences creates under the section 304 and
section 379 i.e. burglary and stealing. Form 9, in the second schedule.

Pope v R (1960) EA 132

Accused was charged with fraudulent accounting false accounting contrary to section
330(a) of the penal code.

2. Where the sepaarate offences are charged conjunctively using the word and as
opposed to or if the matter relates to one act. In Gichinga v R the appellant was
charged with driving a car recklessly. In the particulars, it was stated that he drove
in a reckless manner and at a speed which was dangerous to the public having
regard to all the circumstances of the case contrary to section 86 of the Traffic
Act. The Act employs OR rather than AND. The magistrate acquitted the accused
because of duplicity as it alleges the commission of two offences. On revision by
the high court it was held that the charge was not duplex and it had been
expressed conjunctively and it referred to one incident or act i.e. appellants
manner of driving at the relevant time. If it had been expressed using the
disjunctive OR. In a. reckless manner or at a high speed it would have been
duplex

EFFECTS OF DUPLICITY

The law is not clear. There are two opposing views:

1. One view holds that duplicity is an incurable defect which can be cured by
amending the charge hence if found to be duplex, the accused should be
discharged. This was seen in Cherere Gukuli v R (1955) 22 EACA 478 and
followed in Saina v R. Those who subscribe to this position hold that a count
which charges for two counts is barred for duplicity and a conviction based on it
can not stand.

39
 2. The other view holds that the true test should be whether injustice or prejudice has
been occasioned on the accused by the duplicity so that where the accused suffers
no prejudice, a conviction o duplicity should not stand. This school relies on
section 382 CPC which provides for finding of a sentence or order issued by a
court should be reversed or altered on appeal or revision on account of error
omission or irregularity in the charge unless the error omission or irregularity has
occasioned a failure of justice. This school of thought was followed in:
a. Kababi v R (1980) KLR 95. The appellants was charged in a single count
with causing the dearth of 3 persons by dangerous diving. He was
convicted. He appealed, challenged the decision of the court that it was
based on a barred charge. It was held that the failure to charge or to file 3
separate counts did not occasion injustice though there was duplicity. The
conviction was upheld.
b. Koti v R: Appellate court found the charge was duplex but declined to
interfere because it did not occasion any in justice. It was held that the test
in deciding whether a failure of justice occurred or the accused has been
prejudiced in his trial.
c. Mwambalafu v R : the appellate court found that the arson charge was
duplex but that it did not occasion any injustice. The court relied on
section 382 of the Tanzania CPC.
d. Mwangi v R: The appellate court found that the charge was duplex but
that it had occasioned no injustice.

Criminal Procedure
1. Children’s Court – established under 10 of 2001
2. Court Martial – established under Cap 199. It is composed of:
a. Senior commissioned officer of rank not below major
b. 2 other members
The members sit with a judge-advocate appointed by CJ with consent of AG at
request of convening officer. The role of the judge-advocate is to guide and advice
court martial on matters of law. He sums up the law and facts applicable, but does
not participate in determination of the case. The AG has a right to appeal in case
of an acquittal.
3. High Court
a. Established under s. 60 of Constitution
b. Composed of CJ and Puisne judges
c. Unlimited original and inherent powers in its trial capacity in criminal
cases
d. Power to try any offence and impose any lawful sentence1
e. In practice it tries murder, treason, and contempt
f. Has appellate jurisdiction over matters originating from subordinate courts
4. Procedure for appeal is in s. 347 to 360

5. Judicial Review follows rules set out in Cap 21 Order LIII. It is different from an
appeal in that the court does not prove merit but manner of the decision.
1
S. 4 CPC

40
 a. Certiorari: In
i. R. v Resident Magistrate’s Court, Nairobi & Commisioner of
Police, ex parte Ngecha Industries2 Applicant challenged the
legality of a search warrant issued by Ugandan AG and endorsed
by Nairobi Chief Magistrate3 seeking that the endorsement be
quashed. An order of certiorari was given and it was held that the
Chief Magistrate exceeded his jurisdiction.
ii. Ronald Muge Chesogony v CGS and others 4 this is a case where
the high court has supervisory jurisdiction over court martials. The
Judge-Advocate was appointed by the CJ without the A.G.s
constent. Accused moved to court challenging the procedure and
an order was granted.
iii. Major Musyona & Others v CGS & Others also a court martial
case. Procedures not followed in commencing court martial.
Orders granted to quash proceedings.
b. Prohibition: issued to prohibit acts that are ultra vires or contrary to the
rules of natural justice.
i. Amrik Singh v Resident Magistrate’s Court5. An order of
prohibition was granted to further proceedings where a trial
magistrate allowed amendment of a charge without giving the
defence an opportunity to be heard in objection.
ii. Jared B Kangwana v AG6 prohiobition granted to bar Nairobi CM
from hearing criminal case against accused on grounds that
criminal trial against appeal was an abuse of the process of the
court. Accused had obtained money legally from a bank and the
correct approach was to sue him for recovery and not prosecute
him. It was held that a criminal procedure was not in good faith as
they had been instigated and maintained by 3 rd parties with the
object of exerting pressure to repay.
iii. Re An Application by Kamlesh Pattni & Others 7 Prohibition was
granted to prevent prosecution on the basis that charges were an
abuse of the court process as they were instigated by his business
rivals. The opinion of the HC was however divided on whether an
order of prohibition should be issued to bar criminal prosecution
particularly where the applicant was not accusing the
court/magistrate of any wrong doing.
iv. Deepack Panachand v AG8 and John Wambua v District Magistrate
Court Kibera9 in both cases charges preferred against accused.
Accused moved to high court for order of prohibition that charges

2
HC Misc Appl No. 182 of 1998 (unreported)
3
Extradition (Contiguous and Foreign Countries) Act
4
H.C Misc Appl No 671 of 1999
5
Nairobi HC Misc. Appl No.117 of 1982
6
Misc. App. No 446
7
HC Misc Appl No 1296 of 1998
8
H.C. Misc Appl No 189 of 2000
9
H.C. Misc Appl No 328 of 2000

41
 were an abuse of the court process. Githinji J. refused to grant
orders in both cases since it was a third party rather than a court
accused of misconduct, and therefore no basis for granting of
orders prayed.
v. Under ss.77 and 84 of the constitution the H.C. can issue an order
of prohibition to restrain a trial court from proceeding with a
criminal suit on basis that proceedings amount to an abuse of
process. Stanley Muga Githunguri v R10 accued arrested in the
1973 for Exchange Control Act violations. He was formally
informed by the AG and CID that he would not be prosecuted. This
position was affirmed in parliament 8 years later. However the
charges were resurrected in 1984. Accused raised a constitution
reference claiming that the charges were an abuse of the court
process. An order was granted. Applications made under s.8411
would not be brought under Order LIII 12 but under s.84 as a
constitutional application.
c. Habeas Corpus13 Is a prerogative order that can only be issued by the
H.C. It secures the release of a person held in unlawful custody.
i. Re Ali Rehman14 order issued and directed against commissioner
of prisons and officer in charge of luzira preison in Uganda to
release applicant who was illegally in prison.
ii. Re Application by Muthoni Muriithi on behalf of Stephen
MwangiMuriithi.15 Mwangi was an asst. Commissioner of Police,
the president transferred him to general manager of Uplands Bacon
Factory. Mwangi refused the transfer and challenged it in the HC
claiming the president had no power to transfer civil servants of his
cadre. Mwangi was arrested and held in custody for weeks, the
wife made an application for habeas corpus. State moved quickly
and made detention order which legalised his custody and habeas
corpus order could thus not be granted.
iii. R. v Commissioner of Police & CID Director Ex Parte Raila
Odinga.16 Raila was arrested for weeks and made an application for
habeas corpus.
iv. Stephen Mbaraka Karanja It was held that an order of habeas
corpus can only be issued in respect of a living person.
6. Revision17. Appeals and JR are used to correct errors committed by trial courts
while revisions used to correct errors that are not appellable. The law does not
provide for a formal procedure for revision. The H.C. examines records of trial
courts for correctness, legality, propriety of finding, sentence or order and as too

10
H.C. Crim Appl No 277 of 1985
11
Constitution
12
Cap 21
13
s.389 of Cap 75
14
(1962) EA 302
15
HC Misc Crim App No 88 of 82
16
HC Crim App No 344 of 1988
17
s.362 – 367 Cap 75

42
 regularity of proceedings of such court. It may do so on an application by way of
chamber summons or a notice of summons supported by affidavits with copy of
proceedings or order attached; or on its own motion e.g. on the strength of
information coming from newspaper reports
a. In Kimani it was held that criminal proceedings commence when an
accused is brought to court and leave can only be granted at that stage.
b. Obiero v R. revision sought by state for enhancement of sentence. Under
normal circumstances the state has no right of appeal against sentence and
the only remedy for challenging a sentence is via revision. The revisions
was successfully sought and the sentence was enhanced from absolute
discharge to conditional discharge.
c. R v Singh18
7. Amendments to the CPC.
a. Part VIII repealed
b. S.7 amended
8. High Court as a Constitutional Court
a. ss.687 and 84 confers this jurisdiction
b. S.67 places primary duty of interpreting the constitution on the H.C. The
subordinate court may refer an issue relating to interpretation of
constitution to the H.C. on its own motion or on application by the parties.
A reference from the magistrate must first go to the CJ who probes it for
merit. A constitutional court is appointed for meritorious references with a
3-judge bench. Where a subordinate court makes a final determination in a
civil/criminal matter on a question of interpretation of the constitution and
the matter has not been referred to the H.C. then a right of appeal lies to
the H.C.
i. Samuel Okello & Others v Chief Magistrate Nairobi 19 reference
made under s.67 for the interpretation of s.77 of the constitution
which deals with facilities for defence “Did facilities encompass
documents”. Chunga CJ held that as a matter of administrative
convenience reference has to be studied by CJ before HC bench is
constituted. He allowed reference and setup a constitutional bench
ii. Ernest Zai Mwangombe v. R20 reference made under s.67 sought
interpretation of s.26 “Whether AG.s powers to discontinue
criminal proceedings could be exercised by subordinate officers to
whom powers have been delegated.” It was held that officers
exercising delegated authority could sign writ of nolle prosequi to
discontinue crim proceedings.
iii. Stanley Muga Githunguri21 sought interpretation of s.26 of
Constitution
iv. Gibson Kamau Kuria v A.G.22

18
1987 EA 822
19
H.C. Crim Appl 142 of 2000
20
H.C. Misc App No
21
suppra
22
H.C. Misc App No 551 of 1988

43
 v. GBM Kariuki v R23
vi. Stephen Wamwea Kabue24
c. s.84 empowers H.C. to protect fundamental rights and freedom of
individuals spelt out in ss.70 to 8325. It may entertain claims and redress
for fundamental rights even where other remedies exist. It has original
jurisdiction to hear and determine applications made under this s.84.
Subordinate courts may refer matter to H.C. referring to contravention of
ss.70 to 83 and court has no discretion where the application is made by a
party. A right of appeal exists to the court of appeal. A constitutional court
set up under this section need not comprise of 3 judges. It is at the
discretion of the CJ whether to have 1,2, or 3 judges sit on the bench.
i. Stanley Muga Githunguri v R.. ruled that prosecution was an abuse
of the court process.
9. Court of Appeal. Est. 1977 under s.64 of Constitution, The jurisdiction is
conferred under the Appellate Jurisdiction Act26 It has no original jurisdiction
except for contempt matters. A decision of the CA is final and binding, and can be
annulled only by CA itself or parliament.
a. William Chebii v R.27 No jurisdiction to enhance sentence even where it
feels the sentence imposed is inadequate. Hears appeals from H.C. both
original and appellate. Some acts make HC decision final e.g. appeal from
court martial is finally decided upon in H.C., no appeal lies in court of
appeal.
b. Oliver Munyaka Kaburu v R28 Accused convicted by court martial of
taking part in a mutiny contrary to Armed Forces Act. Sentenced to 8 years
and dismissal. Appeal to H.C. dismissed and further appeal to CA
dismissed for want of jurisdiction.
c. Other Statutory limitations to jurisdiction of CA appear in:
i. Land Adjudication Act29
ii. Immigration Act30
d. Provisions relating to appeals found in ss.361 to 369 of the Criminal
Procedure Code31
i. Johana Ndungu v. R and Kemei v. R The accised charged with
robber with violence32 The victims of robbery did not die and items
stolen of little value. Trial courts convicted the accused persons of
lesser offence of robbery with 3 year sentence. In both cases
accused filed appeal to HC against both convictions and sentence,
HC in both cases upheld convictions. In one case sentence
increased, in other case sentence reduced. Accused filed appeal in
23
H.C. Misc App No 382 of 1994
24
H.C. Misc App No 294 of 1996
25
Constitution
26
Cap 9, Laws of Kenya
27
Crim Appl
28
(1982-88) I KAR 584
29
Cap 384
30
Cap 172
31
Cap 75
32
s.296 Penal Code

44
 CA. CA found that accused person had been wrongfully convicted
of robbery. CA substituted robbery with robbery with violence and
substituted sentence with that of death.
ii. Appeals should be:
1. against conviction on grounds of law or mixture of law and
fact
2. appeal against sentence should be with leave of court of
appeal.
iii. No appeal is entertained for a person who pleads guilty except as
to legality or severity of sentence. The CA can review an order of
acquittal on the instance of the AG, it must be shown that the trial
involved a point of law of exceptional public importance33
10. Arrests. In Kenya the enjoyment of fundamental rights is not absolute and subject
to public interest. There is a provision in the constitution for derogation in public
interest.
a. Right to liberty and freedom of movement s.72 of the Constitution may be
derogated from:
i. Execution of a sentence of imprisonment
ii. Execution of an order for contempt of court
iii. Execution of a subpoena order
iv. Reasonable suspicion of a person about or already committed an
offence
v. Those below the age of majority for purposes of their education
and welfare
vi. For purposes of preventing the spread of contagious and infectious
diseases
vii. Confinement of persons suspected to be of unsound mind, addicts
of drugs and alcohol for purposes of their care
viii. Prevent entry into or effect extradiction from Kenya
ix. Lawful need to effect some form of detention
x. No definition in CPC but definition to be found in Common Law
as per Lord Devlin. “Arrest occurs where a police officer states in
terms that he is arresting, or when by a private person. In either
case, power to arrest must be exercised reasonably and within the
laws.
xi. There are remedies in both civil and criminal law to redress
wrongs committed to arrested persons e.g assault and battery
11. Arrest Without Warrant
a. Can be effected by: police, chiefs, magistrates, or private persons
b. Police officers bound by Administration Police Act34 and Police Act35 to
maintain law and order. Most arrests are carried out by police in exercise
of these duties. Powers of police with regard to arrests, prevention of
crimes and investigate crimes are governed by CPC.

33
s 379 (6) Cap 75
34
Cap 85
35
Cap 84

45
 c. Other statutes which play a role are: Narcotic Drugs and
i. Psychotropic Substances Act.
d. Provisions under the CPC
i. S.29 circumstances if arrest without warrant
ii. 1st Schedule – cognitive offences
iii. s.30 police may arrest without warrant vagabonds and habitual
thieves and robbers.
iv. S. 21 in making arrest, arresting person should actually touch or
continue body of persons being arrested unless person submits to
custody by word or conduct.
v. S.24 arrested person must not be subjected to more restraining than
is necessary to prevent flight. Arrested person must be informed of
reasons for his arrest.
e. S 72(2) of the constitution. Persons who arrested/detained shall be
informed as soon as reasonably practical in a language he understands of
the reasons of his arrest.
i. Mwangi s/o Njoroge36 and F. Wheatley v Lodge37 in some
circumstances it is not necessary to inform person of reasons for
arrest e.g. where circumstances are such that he must know the
nature of the offence for which he is being arrested e.g. after
investigations, interrogations, where suspect takes flight or attacks
his arresters.
ii. Christie v Leachensky38 An arrest can be effected with or without a
warrant. Can be effected either by law enforcing agency e.g. police
or provincial administration, local authority
f. Where an arrested person is brought before OCS, the OCS may inquire
into the case and release person on bond unless person is suspected of
committing capital offence. In the alternative the OCS may set suspect
free altogether, where the offence is serious in nature he may not release
person on police bond.
g. Provisions of CPC on arrest are further entrenched by s.73(3) of
Constitution. Arrested person who is not released on police bond should be
brought to court as soon as is reasonably practicable, at any rate within 24
hrs for non capital offences. 14 days for capital offences.
i. Imanyara v R.39 person arrested without warrant, three statutory
provisions are relevant
1. s.72 Constitution - liberty
2. s.36 CPC – release on police bond
3. ss.29 to 39 CPC – arrest without warrant
h. With respect to magistrates and their power to arrest without warrant, s.38
empowers them to arrest personally or through another person where
offence is committed in magistrate’s presences and within their
jurisdiction.
36
(1954) 21 EACA 377
37
(1971) 1 All ER 173
38
(1947) AC 573
39
Nairobi HC Misc Appl 1991

46
 i. Chiefs Act40 empowers chiefs and assistant to arrest any person for the
purpose of preventing them from committing crimes in their jurisdiction.
Also empowers them to arrest anyone who has committed a cognisable
offence. In the eyes of the law these are police officers
i. Lamambutu v R41
ii. Kionywaki v R42 in effecting an arrest, magistrate acts as a judicial
officer and not in administrative capacity therefore enjoys judicial
immunity
j. Private Person’s Arrest s. just like police private persons should use
reasonable force, failure would attract civil and criminal liabilities.
i. s.34(1) arrest anyone who in his view commits a cognisable
offence or whom he reasonably suspects of having committed a
felony.
ii. s.34(2) property owners, servants & agents arrest without warrant
any person found committing an offence involving injury to
property
iii. U.G. v Muherwa43 private person use of weapon to incapacitate
deceased, suspected to be a thief. Accused convicted of
manslaughter
iv. Beard & Another v. R44 accused arrested complainant, tied him up
and assaulted him although he’d made no attempt to escape. They
also delayed in handing him over to the police. Accused prosecuted
and accused for assault and wrongful confinement, found that
unreasonable and unnecessary force had been used.
k. S.90 CPC Court may issue summons or warrant to compel attendance of
accused.
l. S.100 a warrant can be served notwithstanding summons
m. S.102 lists the forms, content, and duration of a warrant.
n. A person issuing a warrant is protected by judicial immunity
i. King’ori s/o Kiranchitu45 under s.103 court may in addition to
issuing warrant direct that security be taken

40
Cap 108
41
(1958) EA 706
42
(1968) EA 195
43
(1972) EA 466
44
(1970) EA 706
45
(1956) EA 480

47