ACM IN PRACTICE – DECISION TO CHARGE &

THE PRE-TRIAL CONFERENCE I

Mr. Edward Kakoi
 DECISION TO CHARGE

After completion of investigations

Evidentiary Test
Public Interest Test
Bring proper charge
Prompt decision to charge(24Hr rule)
 PLEA BARGAINING
 Sec 137A-O CPC
 ACM guidelines
 Plea bargaining can be initiated by either the Prosecutor
or the defence
 The Plea bargain negotiation/agreements should be timely
and expeditious.
 At all times the Victim involvement in the Plea bargaining
is imperative.
 DIVERSION
 Diversion means ‘diverting’ persons in conflict with the
law away from the formal criminal justice system, and in
particular away from formal court processes (through pre-
trial diversion and informal / alternative sentencing
processes) and detention (through alternatives to
detention).
• Constitution of Kenya Art 53(1)(f) refers to diversion of
children in conflict with the law
 Diversion can be applied at the reporting, investigation
stage, before decision to charge, after charging and at any
stage during trial.
 WHY PRE-TRIAL CONFERENCE?
PTC is the key to effective case management.

The main purpose of the PTC is to identify the issues that are agreed
or disputed between the parties.
Ensure early identification of the real issues in dispute
considering in advance any arguments especially on admissibility of
evidence: inter-alia relating to the admissibility of any documentary,
technical, expert pre- recorded digital or electronic evidence including
confessions and video or audio-recorded interviews.
early identification of the number and needs of witnesses : including
length of those witnesses’ testimony and whether teleconferencing or
live TV link shall be necessary and/or appropriate; need for
intermediaries.
 determining the length of trial and setting hearing
date
 achieving certainty as to what must be done, by
whom, and when, in particular by the early setting of
a timetable for the same
 Continuous monitoring the progress of the case in
compliance with directions given
 ensuring that evidence, whether disputed or not,
shall be presented in the shortest and clearest way
 ROLE OF ACTORS IN THE PRE-TRIAL

The Court
Time management
To implement the time estimate, the court will usually require
the parties to provide:
 number and timed order of the live witnesses;
 details of any admissions/written evidence/other material
that will be adduced;
 an advanced warning to the court of any point of law that is
likely to arise; and
 an overall timetable for the whole case
 Trial and Delivery date Certainty

Adherence to timetable
 New directions should not:
i. affect the date of any hearing that has been fixed, or

ii. significantly affect the progress of the case or the

rights of the parties in any other way.
 Other Considerations

court administration must also be examined. Such

considerations include: for example, the allocation of
cases to ensure that each judge has a relatively equal
caseload, the prompt scheduling of cases, the handling of
multi-defendant cases, and the holding of continuous trials.
 Determine need for an interpreter
 Determine deployment of appropriate technology
 Deal with unrepresented accused person(s)
 Make appropriate directions on vulnerable witnesses / victims
 The Prosecution

Disclosure of evidence – see Cholmondoley versus

Republic [2018]eKLR
 Indicate mode of disclosure
 Indicate level of preparedness
 Determine number of witnesses and time projected
for testimony
 Identify special needs of witnesses and inform court
 Inform on any plea bargain or diversion
 Identify need to move court to locus in quo
 The Defence

 Confirm to court receipt of material under

disclosure
 Make further requests for disclosure (if
necessary)
 Indicate any preliminary legal issues outstanding
 Statutory disclosures – e.g. alibi
 Comply with Pre-trial directions
 Be mindful of achieving the overriding objectives by
taking full instructions, preparing for the case and
assisting the court at the PTC
 While taking instructions, the defence should explore
the likely plea, any statutory defences and any legal
issues or challenges that arise in the case.
 Make proper and timely preparation of the defence in
order to minimize unnecessary adjournments
 Be focused towards expeditious disposal of cases.
Thank You