PLEAS

INTRODUCTION:

Once an accused person is brought to Court, the next step is for him/her to be informed of and be
called upon to answer the criminal charges preferred against him. This process is known as
arraignment The charge is read in an open Court complete with the statement of offence and the
particulars of each count to which she is required to respond. This is referred to as taking a plea.

MEANING OF THE TERM PLEA':

A "ples" is a formal starement made in Court by or on behalf of an accused person as response to

the charge

The four elements in the definition are:

a) It is a formal statement

b) Made in Court

c) By or on behalf of an accused, and

In response to a charge made against the accused.

Flansas to plead: A person is unfit to plead if he is incapable of understanding the proceedings so

that he

4) put forward his defence;

b) give proper instructions to defence counsel, and

4) follow the evidence.

1 TYPES OF PLEAS:

In answer to a charge, an accused person may:

1) Plead guilty.

5) Plead not guilty. c) Say nothing: Le, refuse to plead, assuming that he understands the
proceedings.

Demurrer: Give a legal opinion ie, admit the facts but say they do not amount to an offence known
to

[03/12/2023 01:05] Mwaniki: c) Plend: formerly acquired, or formerly conviet, or pardon.

1) Say that the Court has no jurisdiction over him.

8) Plead guilty subject to a plea agreement.

4. EQUIVOCAL AND UNEQUIVOCAL PLEAS:

Equivocal: means not having one clear or definite meaning or intention, or being able to be under
more than one way.

Equivocal plea: It is one that is contradictory. It is a plea of guilty made by an accused person befo
Court in circumstances where the plea does not necessarily admit that the accused is guilty of the
charged, ie, where the charge is duplicitous (that is, contains more than one offence), or where the
upon which the plea is based indicate that the accused is not guilty of the offence charged.

Unequivocal plen: It is one that is without ambiguity; singularly clear, unmistakable, or

unquestionable In murder cases: a plea of guilty can only be accepted in very clear
cases/unequivocal. The pla recorded must not be capable of any other interpretation other than that
of guilty. In Republic v. Kem and Another accused person pleaded guilty to murder in the following
terms: "Yes I killed intentionally after Chilewe had asked me to kill the deceased." The Court ruled
that the plea of guilty ve not unequivocal as the appellant claimed to have acted in response to a
request from another person, a that a plea of guilty to murder should only be accepted in the
clearest case.
Presence of ambiguity: In Republic v. Mutua, it was stated that no man is to be convicted on a ples
whic is ambiguous. If there is any ambiguity, it is to be taken as a plea of not guilty.

5. RECORDING OF PLEAS:

Laws: The procedure is governed by the provisions of the Criminal Procedure Code, Cap 75 and Com
practice ie., precedents of the superior Courts.

Production of the accused in Court: The accused person is brought or arraigned in Court. The process
arraignment is dealt with by Sections 274 to 283 of the CrPC. If the accused is on bail/bond, she mu
attend the hearing on the date indicated and if she is in custody, it is the State's duty to ensure hishe
attendance. On appearance before the Court, a judicial officer must ensure that:

a) the charge is properly drawn;

b) it must be in regard to an offence that is known to law, and

c) it is not be duplex.

Admit or deny: The substance of the charge must be stated to the accused person by the Court, and
he

be asked whether he admits or denies the truth of the charge. 10 In the High Court, the charge is
read to

accused by the Registrar or other Officer of the Court" while in the subordinate Courts, it is read by
dr

: Magistrate hinterrell in loputto & Vinmount Kada smot (this," the Crant held that it is moved
desirable dist not only every conditunt of the huge to explained to the accusat person, but that the
should be required to adult in deny every constituent part thereaf and that what she says shazld be
recorded in a form which would stihly ou appeal Count that the hilly surferstood the charge and
peartest milty to every element of it unequivocally 4 Delegating plen taking city. It is not proper for
the Magistrate to delegate the duty to the Court Clak ant

even for simple cliørges, they must be read under the direction of the Cout Interpreter, Where the
accused person does not understand the language of the Court, it is mandatay that an interpreter be
availed to translate the charge and the proceedings for the benefit of the accused and the Court.
Such Interpreter must first be sworn to faithfully and accurately discharge the task and this should
be reflected on the record, In Republie v. Abdll Att, the Court held that a plea taken through an
unofficial unsworn Interpreter cannot be regarded as unequivocal,

The accused person shunuld plead personalty and not through his advocate: This was the holding in
Repubile v. Ganji." It is only in situations where a statute allows an advocate to plead on his dient's
behalf, such as in cases involving minor traffic infractions that this rule is qualified, Accused's word;
The plen should be recorded as nearly as possible in the accused person's own words, Republle v.
Wamithandi

PROCEDURE IN RECORDING A PLEA OF GUILTY

This is a formal acknowledgement of gullt made by the accused person in answer to is charge read to
him/her In a Court of law.

Sections 207(2) and 281 of the CrPC relate to the recording of a plea of guilty.

The requirements for a plea of guilty were codified by the Court of Appeal in the case of Republle v.
Adan and have since been universally followed by the Courts, Courts have always been concemed
that before a plea of guilty is accepted and acted upon, certain vital safeguards must be strictly
complied with, namely,

) The plea must be free and voluntary. In Repubile v. Olel, the High Court held that if a plea of guilty
is not voluntary or is obtained by force, or threats, or torture, or even deception, it cannot be said to
be unequivocal. It would, in these circumstances be a nullity.

b) The person pleading, guilty must fully understand the offence, with which s/he in charged before
s/he admits the charge. This requirement applies not only to offences punishable by death but to all
offences.

Where the offence is one punishable by death: the Court recording the plen of guilty must show in
its record that the person pleading guilty understands the consequences of his plea,

: d) the prosecution would the causedintely state den tits mout the tested stranded to given e
opportunity to dispate or esplain the facts or to add any relevant facts.

) if the sorrend does not agree with the forts on salves any question of his guilt his reply wond
recorded and a change of plea entered. D. If there is no change of plea a conviction should be
recorded and a statement of the facts elevato sentence together with the accused's reply should be
reconled.

g) The accused must wish to mlamit, without any qualification, each and every ingredient of the
charge In the case of Republic v. Kariuki," where four accused persons were charged jointly, their
responses to the facts of the offence were recorded as follows.

Accused t Story is correct

Accused 2-Do

Accused 3-Do

Accused 4-Do

Court Plen of guilty entered by all.

The Court of Appeal held that the word 'do' tecorded by the trial Court as the accused persons
answer the charge meant nothing and was neither an admission nor a denial of the fact.

The Court in Republic v. Adan proceeded to provide an outline of the manner in which a plea of
guiltya to be recorded, as follows:

a) The trial Magistrate or Judge must flust inquire on the language the accused understands. b) The
Magistrate will then read and explain to the accused the charge and all the ingredients of t

offence. This includes, the 'Statement of the Offence' and the "Particulars of the Offence." c) He
should then record the plea in the necused person's own words and If they are an admission, a pla of
guilty' should be entered,

d) The prosecution must then, Inmediately, state the facts and the accused should be given an
opportual to dispute, to explain or to add nuy relevant facts.
e) If the accused does NOT agree to the facts or raises any question to the facts, his answers shoul
recorded and a change of plea entered. If there is no change of plea, a conviction should be recud
alongside a statement of facts relevant as well as the reply of the accused,

1) Where the accused is charged with more than one count, the Court should record a plea on each
co separately. The aim is to ensure that if there is a plea of guilty, the same is unequivocal. After a
plea of guilty has been entered and the accused has been convicted on his own plea, the Coutu

pass sentence or unke an order against him. Before doing so, however, the Court may permit, or i

require the complainant to give an outline found in the charges. The prosecution, in giving the said
onde

is under a duty not to embellish or exaggerate."

: PROCEDURE ON THE PLEA OF NOT GUILTY

The Court enters a ples of "Not Guilty' where the accused person

does not admit the charge,

5 does not admit the statement of facts;

refuses to plend.

If an accused person does not ailemit the truth of the charge, the Court proceeds to hear the
compliant and his witnesses and other evidence (if any),

Examination of witnesses: The accused person or his advocate may put questions to each with
ridsend ngsinst him.

y the accused person does not employ an advocate: the Court shall, at the close of the examination
of each witness for the prosecution, ask the accused person whether he wishes to put any questions
to fit witness and shall record his answer,
Inculpatory statement: Where an accused person in an answer to a charge at his arraignment makes
an inculpatory statement, de., statement that does or tends to suggest that she is guilty of an
offeret, even as he pleads not guilty, such a statement cannot be used against him when the Court
considers the one

REFUSAL TO TAKE A PLEA:

An accused may fail to plead to the indictment when arraigned in Court either because she:

a) is mentally incapable of doing so; or

b) is physically incapable of doing so (ie., deaf or speech handicapped); or

c) willfully elects to remain silent.

In the first instance, s/he is said to be unfit to plead. In the second, she is mute by visitation of GOD;
and in the third, s/he is mute of malice.

In the High Court: If an accused person arraigned upon information stands mute of malice, or nether
will nor by reason of infirmity can, answer directly to the information, the Court may order the
Magistrar or other officer of the Court to enter a plea of "not guilty" on behalf of the accused
person. A ples a entered has the same force and effect as if the accused person had actually pleaded
it. The Court may als proceed to try whether the accused person is of sound or unsound mind, and if
he is found of sound mind, it proceeds with the trial. If he is found of unsound mind, and
consequently incapable of making his defence,

the Court will order the trial to be postponed and the accused person to be kept in safe custody mi
shall

report the case for the order of the President."

In Subordinate Court: If the accused person refuses to plead, the Court shall order a plea of "na
guilty"
to be entered for him. In Republic v. Wachira and Others, when charged, the accused person need to

plead. He proceeded to create uproarious raucous in Court raising doubts as to his sanity. After
medical

examination, a psychiatrist gave evidence that the accused was mentally sound and was merely
simulating

disease of the mind. The accused continued to cause disturbance such that it was not possible for
the trial to

: the constucted in his presence. A ples of non sultry wo Apes dhe the trial took place in his absence.
On appeal, the Court of Appeal upheld the trial Cour's decision tial took le PROVISIONS RELATING TO
THE PLEAS OF AUTREFOIS ACQUI

FORMERLY CONVICT

Prohibition on trial: A person who has been once tried by a Court of competent and convicted or
acquitted of that offence, while the conviction or acquittal has not been aside, is not liable to be
tried again on the same facts for the same offences jurisdiction for

Convicted or acquitted person may however, afterwards be tried for another offence

a) with which he might have been charged on the former trial under Section 115 offence, whether a
felony or misdemeanour, is one which might have been charged torter former information having
been founded on the same facts, or formed or was part of (1) of the GC

offences of the same or a similar character." b) causing consequences which constitute a different
offence from that for which he was com acquitted. Such a person may be afterwards tried for the
last-mentioned offence, if the com had not happened or were not known to the Court to have
happened at the time when he was

or convicted

c) constituted by the same acts which he may have committed, if the Court by which he was fir was
not competent to try the offence with which he is subsequently charged."
10. PLEAS OF AUTREFOIS ACQUIT:

Double jeopardy, It is a fundamental principle of law that a man may not be put twice in jeopardy for
same offence. The term autrefois acquit means that if a man has been tried and found to be not
guilty a offence by a Court competent to try him, the acquittal is a bar to a second charge for the
same offme This principle is a defence for the accused person and is sanctioned and recognized as a
plea under Se 279(1)(a) of the CrPC

A discharge of an accused under Section 87 of the CrPC: is not an acquittal and a plea of antrefa
cannot be sustained. However, if such application to withdraw under Section 87 is made after the a
has been called upon to give his defence, the Magistrate shall acquit the accused under the said
Sectom this would operate as a bar.

Types of diacharges.

a) Absolute discharge. It occurs when the Magistrate finds the accused guilty and considers that the
is such that she wishes to award no punishment and discharges the accused persen by cautioning
him. The discharge is absolute and the accused may plead autrefois convict to a sub

charge on the same facts.

b) Conditional discharge: It occurs when the prosecution requests that the charge be withdrawn

time before the accused is called upon to make his defence and the Magistrate discharges him S

: discharge will not operate as it bar to subsequent proceedings and accused cannot plead utrefois
acquit.

FLEA OF AUTREFOIS CONVICT

11 This principle is a defence for the accused person and is sanctioned and recognized as a plea
under Section

279(1)(a) of the CrPC.

Double jeopardy: The rule against double jeopardy applies with equal force to convictions. If the
accused gives this plea, but the prosecution denies: the Court shall try the vericity of the ples. If the
facts alleged by the accused do not prove the plen, the accused is required to plead to the
information The test: is not whether the facts relied upon in the two trials are the same but whether
the accused his been convicted of an offence which is the same as that with which he is
subsequently charged. This test was illustrated in the English case of Republic v. Thomas where the
accused was convicted of wounding his wife with intent to murder her and sentenced to 7 years'
imprisonment. Within a year and a day, he wife died of the wounding. The Court of Criminal Appeal
held that although the accused had been convicted and sentenced for the wounding, he could
properly be tried for the murder and could not plead cutrefois convict. This is the very principle that
underlies Section 140 of the CrPC (above) under which supervening consequences or those not
known at the time of the former trial are excluded from the operation of double jeopardy.

A previous conviction in a place outside Kenya, may be proved by the production of a certificate
purporting tobe given under the hand of a police officer in the country where the conviction was
had, containing a copy of the sentence or order, and the finger prints, or photographs of the finger
prints, of the person convicted, together with proof that they belong to the accused person.

PLEA OF PARDON:

A plea of pardon: It is a special plea made by an accused person to the effect that she has been
pardoned, in respect of the offence charged in the indictment.

The President under the COK wields the prerogative power of mercy and may grant a free or
conditional

pardon to a person convicted of an offence. 45

Section 279(1)(b) of the CrPC also recognizes the plea and is a bar to proceedings.

When an accused person claims plea of pardon, should the plea be successful after a trial, then the
sccused

is not acquitted but discharged. The same applies for an accused who pleads autrefois acquit. Such a

scharge is not an acquittal but merely a finding or order that the accused person is not to be placed
upon
his trial and such order, being a final order, is capable of being challenged in revisional proceedings.

CHANGE OF PLEA:

For a long time it was held that once an accused person entered a plea of guilty, the plea could not
be

changed: because, ostensibly, the Court became functus officio. This, however, is no longer the law

The Court has discretion at any time to allow: before sentence, an alteration of pleas. This case of
Republic v. Mwangi sto Kamihi and Another. In Republic v. Yusuf Maumba, Appeal also held that the
Magistrates" powers to allow amendment exist only during trial, before arid befure the Court
becsenes functus officio. The Court will not have power to re-open the case its own motion or on the
application of the prosecution, or defence, Similarly, the Court of App Republic v. Kioko held that an
accused person may apply to change plea after the prosecution bas its case and at any time before
sentencing, and that it was within the discretion of the Cour, account the demands of justice, to
decide whether to allow or disallow the application.

Factors to be considered: Since it is a discretion, the Judge or Magistrate will want some explanati
the change of heart and may take into account matters such as:

a) legal advice the accused has received;

b) age of the accused;

c) level of intellect and experience of criminal proceedings.50

d) Due to the number of various languages in Kenya, it may be possible for an accused to misunder
the proceedings.

Peading the charge ofresh: In Republic v. Chacha, it was held that if after pleading guilty to a chan
discussion follows and the accused is intending for any reason to amend his plea, the charge should
be m to him afresh whereupon his new plea shall be recorded.

The accused person is allowed to change plea from 'guilty' to 'not guilty'; and also from "not guilty
'guilty of a lesser cognate offence. This is within the discretion of the Court depending on the
demandi justice. The Court is, therefore, not bound to accept the offer even if the prosecution is not
opposing ought, however, to accept the change of plea to a lesser charge where it has already
accepted that of accused.

14. PLEA BARGAINING:

Introduction: Plea bergaining gives an accused an opportunity to bargain for some leniency instrad
each party facing the burden of time and expense culminating in an uncertain outcome, Ultimately,
ther mutual benefit by the accused and the State as it is used to reduce the number of cases and
their agg impact on the criminal justice system while the accused saves costs and gets some
leniency.

Plea agreement negotiation: Section 137A of the CrPC provides that: a) a prosecutor and an accused
person or his representative may negotiate and enter into an agreement

respect of:

1. reduction of a charge to a lesser included offence;

ii. withdrawal of the charge or a stay of other charges or the promise not to proceed with t

possible charges,

5) Payment of compensation: A plea agreement may provide for the payment by an accused pertet
of any restitution or compensation,

2) It is entered into only after an accused person has been charged but before judgment, 35 5)
Where a prosecution is undertaken privately: no plea agreement can be concluded without the
written consent of the DPP.

Plea agreement on behalf of the Republie: Section 137B of the CrPC provides that a plea agrement
on behalf of the Republic can be entered into by the DPP or his authorized officers or by any other
person authorized by any written law to prosecute.

Initiation of plea agreement: Section 137C provides that:

1) An offer for a plea agreement: may be initiated by the prosecutor, or an accused person, or his
legal representative.

b) The parties then need to notify the Court of their intention to negotiate a plea agreement but the
Court cannot participate in plea negotiation. This is meant to preserve the Court's necessary
impartiality as an independent arbiter between the parties.

Consultation with victim, etc: Section 137D provides that a prosecutor can only enter into a plea
agreement:

a) after consultation with the police officer investigating the case;

b) with due regard to the nature of and the circumstances relating to the offence, the personal
circumstances of the accused person and the interests of the community;

c) unless the circumstances do not permit, after affording the victim or his legal representative the
opportunity to make representations to the prosecutor regarding the contents of the agreement,
Form of plea agreement: Section 137E provides that plea agreement shall be in writing, and shall:

2) be reviewed and accepted by the accused person, or explained to the accused person in a
language that he understands;

b) if the accused person has negotiated with the prosecutor through an interpreter, contain a
certificate by the interpreter to the effect that the interpreter is proficient in that language and that
he interpreted accurately during the negotiations and in respect of the contents of the agreement;

c) state fully the terms of the agreement, the substantial facts of the matter and all other relevant
facts of the case and any admissions made by the accused person; d

) be signed by the prosecutor and the accused person or his legal representative; e) be signed by the
complainant if a compensation order has been included in the agreement.

Recording of plea agreement by Court: Section 137F provides that before the Court reconds a plea

agreement, the accused person must be placed under oath and the Court must address the accused
person
personally and inform him of, and determine that the accused person understands:

2) the right to:

1. plead not guilty, or having already so pleaded, to persist in that plea; ii. be presumed innocent
until proved guilty;

iii. remain silent and not to testify during the proceedings;

iv. not being compelled to give self-incriminating evidence;

a full trial;

vi. be represented by a legal representative of his own choice, and where necessary, have the
appoint a legal representative;

vii, examine in person or by his legal representative the witnesses called by the prosecution bef
Court and to obtain the attendance and carry out the examination of witnesses to testify behalf
before the Court on the same conditions as those applying to witnesses called prosecution.

b) that by accepting the plea agreement, he is waiving his right to a full trial;

c) the nature of the charge s/he is pleading to;

d) any maximum possible penalty, including imprisonment, fine, community service order, probe
conditional or unconditional discharge;

e) any mandatory minimum penalty;

f) any applicable forfeiture;

g) the Court's authority to order compensation and restitution, or both;

h) that by entering into a plea agreement, he is waiving the right to appeal except as to the exten
legality of sentence;

i) the prosecution's right, in the case of prosecution for perjury or false statement, to use againg te
accused any statement that the accused gives in the agreement.

Competence of accused to make a plea agreement: Section 137G provides that the Court shall, bein
recording a plea agreement, satisfy itself that at the time the agreement was entered into, the
accused peam was competent, of sound mind and acted voluntarily.

Record of factual basis of plea: Section 137H provides that:

a) Where the Court accepts a plea agreement:

i. it must enter the factual basis of the plea on record;

ii. the agreement becomes binding upon the prosecutor and the accused;

iii. the agreement becomes part of the record of the Court.

b) Where a plea agreement entered into is accepted by the Court: the Court shall proceed to commit
accused person accordingly.

Address by parties: Section 1371 provides that upon conviction, the Court may invite the parties
address it on the issue of sentencing. In passing a sentence, the Court takes into account:

a) the period during which the accused person has been in custody;

b) the victim impact statement, if any;

c) the stage in the proceedings at which the accused person indicated his intention to enter into a
plet agreement and the circumstances in which this indication was given;
d) the nature and amount of any restitution or compensation agreed to be made by the accused
person.

e) the probation officer's report.

Rejection of plea agreement: Section 1371 provides that:

a) Where the Court rejects a plea agreement:

i. it records the reasons for such rejection and inform the parties accordingly:

10

ii. the plea agreement becomes mull and void and no party can be bound by its terms;

iii. the proceedings giving rise to the plea agreement are inadmissible in a subsequent trial or any
future trial relating to the same facts; and

iv. a plea of not guilty can be entered accordingly.

b) Where a plea agreement has been rejected by the Court and a plea of not guilty consequently
entered, the prosecution may, upon being informed of the fact proceed to try the matter afresh
before another Court. But, the accused person may waive his right to have the trial proceed before
another Court.

e) Upon rejection of a plea agreement, there cannot be further plea negotiation in a trial relating to
the same facts.

d) Where the Court has rejected a plea agreement, no party can appeal against, or apply for a review
of, the order of the Court rejecting the agreement.

Withdrawal of plea: Section 137K provides that an accused person may withdraw a plea of guilty
pursuant to a plea agreement:

a) prior to acceptance of the plea by the Court, for any reason; or

b) after the Court accepts and convicts on the plea, but before it passes a sentence, if the accused
person

can demonstrate, to the satisfaction of the Court, a fair and just reason for requesting the
withdrawal. Finality of judgement: Section 1371, provides that the sentence passed by a Court is
final and no appeal can lie therefrom except as to the extent or legality of the sentence imposed.
However, the DPP, in the public interest and the orderly administration of justice, or the accused
person, may apply to the Court which passed the sentence to have the conviction and sentence
procured pursuant to a plea agreement set aside on the grounds of fraud or misrepresentation.

Protection of plea agreement process: Section 137M provides that the statements or facts stated by
an accused person in a plea agreement cannot be used for any other purpose except for the purpose
of plea bargaining.

Application: Section 137N provides that plea bargaining cannot apply to:

a) offences under the Sexual Offences Act, 2006;

b) offences of genocide, war crimes and crimes against humanity.

Guidelines on plea bargaining: In England, Lord Parker CJ in Republic v. Turner set out some
guidelines on plea bargaining:

a) It may sometimes be the duty of counsel to give strong advice to the accused that a plea of guilty
with remorse is a mitigating factor which might enable the Court to give a lesser sentence.

b) The accused must ultimately make up his mind as to how to plead.

c) There should be open access to the trial Judge and counsel for both sides should attend each
meeting.

preferably in open Court; and

d) The Judge should never indicate the sentence which he is minded to impose, nor should he ever
indicate that on a plea of guilty he would impose one sentence, but that on a conviction following a

plea of not guilty he would impose a severer sentence.

BAIL AND BOND

1. INTRODUCTION:

A person is presumed innocent until proved guilty. The presumption of innocence dictates that
accused persons should be released on bail or bond whenever possible. It is for this reason that the
existing law in Kenya safeguards against interference or violation of a person's right to liberty.

Bail and bond processes protect a person's liberty during pre-trial and trial processes.

DEFINITION OF BASIC TERMS:

. Bail: It is the release from custody, pending a criminal trial, of an accused on the promise that
money will be paid if he absconds.

Bail can also be defined as an agreement between an accused person or his/her suréties and the
Court that the accused person will attend Court when required, and that should the accused person
abscond, in addition to the Court issuing warrants of arrest, a sum of money or property directed by
the Court to be

deposited, will be forfeited to the Court. Bond: It is an official document(s) signifying agreement
between the accused person, the surety and the Court that the surety will guarantee by deposit of a
security of an amount fixed by Court and the accused

obeconde and does not

Rights, 1966; the International Covenant on Economic, Social and Cultural Rights, 1966; and Art (1)
the African Charter on Human and Peoples' Rights, 1981.

b) The Constitution of Kenya, 2010: The provisions, inter alia, include:

i. Preamble: "Recognizing the aspirations of all Kenyans for a government based on essential values

human rights, equality, freedom, democracy, social justice and the rule of law."

ii. Supremacy of the Constitution: Art 2(4): Any law.... that is inconsistent with the Constitution is ve
to the extent of the inconsistency; any ner or omission in contravention of the Constitution is invalid
Article 2 (5): The general rules of international law shall form part of the law of Kenya. Article 2 (6):
Any Treaty or Convention ratified by Kenya shall form part of the law of Kenya ure

the Constitution.

iii. Chapter 4. Bill of rights: Art.19: Rights and fundamental freedoms: The purpose of recognising and
protecting human rights and fundamental freedoms is to preserve the dignity of individuals and
communities and to promote social justice and the realisation of the potential of all human beings.
The rights and fundamental freedoms in the Bill of Rights belong to each individual and are not
granted by the State.

Art.20: Application of the Bill of Rights: Every person shall enjoy the rights and fundamental freedom
in the Bill of Rights to the greatest extent consistent with the nature of the right or fundamental
freedom.

Art.21: Implementation of rights and fundamental freedoms: It is a fundamental duty of the State
and every State organ to observe, respect, protect, promote and fulfill the rights and fundamental
freedoms in the Bill of Rights.

Art.22: Enforcement of the Bill of Rights: Every person has the right to institute Court proceeding
claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated

infringed, or is threatened, Art. 49(1)(h): Rights of arrested persons. An arrested person has a right
to be released on bond or bel on reasonable conditions, pending a charge or trial, unless there are
compelling reasons not to be

released. Art.49(2): A person shall not be remanded in custody for an offence if the offenct is

punishable by a fine only or by imprisonment for not more than six months.
Art.50(2)(a): Fair hearing: Every accused person has the right to a fair trial, which includes the right

be presumed innocent until the contrary is proved.

Sixth Schedule, Part 2, Art.7: Existing laws: All laws in force immediately before the effective dat

continues in force and shall be construed with the alterations, adaptations, qualifications and

exceptions necessary to bring it into conformity with the Constitution.

c) The Statutes: They, inter alia, include:

i. The Judicature Act, Cap 8: Sources of law,

ii. The Children Act, 2001: Section 185(4) empowers Courts to grant bail to child offenders pending
her

appearance before a Children's Court.

iii. The Prevention of Terrorism Act, 2012: Section 35 provides that the rights of an arrested person
specified under Article 49(1)(1) of the Constitution may be limited only for purposes of ensuring: a)
the protection of the suspect or any witness; b) the suspect avails himself for examination, or trial,
or does not interfere with the investigations; c) the prevention of the commission of an offence
stated under the Act and for the preservation of national security.

iv. The National Police Service Act, 2011: Section 53 provides that a Police Officer investigating an
alleged offence (not being an offence against discipline) may require any person to execute a bond in
such sum and in such form as may be required, subject to the condition that the person shall duly
attend Court if and when required to do so. However, this power is to be exercised in strict
accordance with the Criminal Procedure Code, Cap 75.3

v. The Evidence Act, Cap 80: Types of evidence, collection and presentation of evidence.

vi. The Penal Code, Cap 63: Describes offences under the criminal justice system.
vii: The Criminal Procedure Code Cap 75: Section 123: Bail in certain cases: The Section which is yet
to be amended to be in line with Art. 49(1)(h) provides that when a person (other than a person
accused of murder, treasorn, robbery with violence, attempted robbery with violence and any drug
related offence) is arrested or detained without warrant by an Officer in Charge of a Police Station,
or is brought before a Court, and is prepared at any time while in the custody of that officer or at any
stage of the proceedings before that Court to give bail, that person may be admitted to bail,
provided that the officer or Court may, instead of taking bail from the person, release him on his
executing a bond without sureties for his appearance. The amount of bail is fixed witli due regard to
the circumstances of the case, and cannot be excessive. The High Court may direct that an accused
person be admitted to bail; or that bail required by a Subordinate Court or Police Officer be reduced.

Section 124: Bail bond: Before a person is released on bail, or 'on his own recognizance," a bond for
such sum as the Court or Police Officer thinks sufficient must be executed by the person, and after
release, by one or more sufficient sureties, s/he must be conditioned to attend at the time and place
mentioned in the bond until otherwise directed by the Court or Police Officer.

The Court practices: These are precedents.

BAILABLE AND NON-BAILABLE OFFENCES:

The question of bail is often a very emotive one especially where the persons seeking or obtaining it
is

facing capital charges. The public generally is overwhelmingly weighted against an accused person

walking and mingling freely after being granted bail on a capital offence.

Section 72(5) of the repealed Constitution provided that a person arrested and brought to Court
charged

with a criminal offence and not tried within reasonable time shall, "unless he is charged with an
offence

punishable by death, be released either unconditionally or upon reasonable conditions, including in

particular such conditions as are reasonably necessary to ensure that he appears at a later date for
trial."
On its part, Section 123(1) of CrPC (see above) which is yet to be amended, reflected the Section
72(5) of the repealed Constitution. As such, persons convicted of murder, treason violence or
attempted robbery with violence could not be granted bail.

In Republic v. Margaret Magiri Ngui and Another, the applicant was charged, inter alia, with hery
violence a capital offence. While in custody she suffered severe ulcers and high blood pressur
applied for bail in the High Court and she was refused. She thereafter applied to the same Cour
constitutional Court for the reading of Section 123 of CrPC which conflicted with the Constitut regard
to the provisions of bail. Whereas Section 72(5) of the Constitution, as it then stood, allowed
generally to persons charged with any offence. Section 123 of the CrPC denied bail for capital offe
The Court refused to release the applicant on bail and held that bail should not be granted where
offences charged carry a mandatory death penalty because the temptation to abscond in such cases
is high. After the ruling, the Constitution was amended to deprive Courts the power to release pe
charged with capital offences. Thus, the repealed Constitution read together with the current CrPC
similar provisions denying bail for capital offences.

The new Constitution of Kenya, 2010, however, the legal position on bail has reverted to the pre-
Margare Magiri Ngui state. Article 49(1)(h) of the Constitution entitles all persons arrested with the
right to released on bond or bail pending charge or trial. The terms of the bond or bail are to be
reasonable without distinction between bailable and non-bailable offences. Inevitably, this provision
has also attrac contestation in the Courts. In the first known such case, Republic v. Taiko Kitende
Muinya," the accurat who was charged with murder, applied to be admitted to bail. He had
absconded from home for about w months. The High Court held that:

Under the new Constitution, there was no longer a category of offences characterized as non-
ballabie

The right of an accused person to be released on bail, although a constitutional right, was not
absolut

The Court may decline to release him in appropriate cases and the appropriateness or otherwise is
longer pre-determined by Statute, as was the case before the promulgation of the new Constitucion
when all persons charged with offences attracting death sentences could not be granted bail or band
pending trial. There were compelling reasons to warrant the accused being deprived of his liberty
pending trial, namely, seriousness of the offence and the gravity of the sentence (which may incline
the accused to abscond), the relationship between the accused and potential witnesses (his
influence over whom might cause him to interfere with them) and his antecedents or prior conduct
(in this case previous two-month flight).

Republic v. Danson Mgunya and Another is the first case where bail was granted to suspects facing
murder charges. Exercising their right under the new Constitution, the accused applied for bail. They
wer elderly members of the society, married and with children. They had fixed abodes and their
places of residence were known. The first accused was an administration officer

State opposed the application for bail contending, inter alia, that due to the severity of the sentence
there was a high possibility of flight or absconding. Moreover, the case had proceeded expeditiously
and was about to be concluded, the evidence adduced was hard and incriminating. The State also
contended that there should be no discrimination on the ground that the applicants were public
servants and that there must be equality in the eyes of the law. In making its ruling, the Court found
that there were no compelling reasons to continue with the detention of the accused and it did not
matter that the trial was coming to an end with three witnesses remaining. The Applicants were
then released on a bond of Ksh.3,000,000 each with two sureties each for like amount.

Bail is fixed with due regard to the circumstances of each case and should not be excessive: or it
would defeat the purpose of the bail itself. In the case of Republic v. Patrick Irungu Maina, the
accused had been admitted by a Magistrate's Court to a bail of Ksh. 150,000 for the offence of
obtaining money by false pretence, which attracted a maximum penalty of three years
imprisonment. The High Court found that the amount was excessive considering that the total
amount alleged to have been obtained by the applicant was Ksh.98,000.

Withholding bail: In Republic v. Jamal Din, it was held that withholding bail by the Court is wrong.
When an accused person appears in Court for his hearing, he is entitled to have his bail money
returned to him.

5. CLASSIFICATION OF BAIL:

Bail may be classified into three:

a) Anticipatory bail/ Bail pending arrest: It is an order to admit a person to bail issued before the
person is arrested. It is bail in anticipation of arrest. Any person who suspects that he is about to be
arrested on false or trumped-up charges, due to personal or political enmity or vendetta with
someone, or who fears that a false case is likely to be built up against him, may move to Court for
grant of bail in the event of his arrest and the Court may, if it thinks fit, direct that in the event of
such arrest, he shall be released on bail. In essence, the applicant invites the Court to arrest him and
release him on bail and thereby pre-empt an apprehended oppressive apprehension in the hands of
the police.

The right to anticipatory bail, under the new Constitution: can be located at Article 22 which gives
every
person the right to institute Court proceedings claiming that a right or fundamental freedom has
been

denied, violated or threatened. Besides, under Article 23(3), the High Court has power to grant
appropriate

relief. As such, anticipatory bail may not be viewed as one of the conservatory orders specifically

mentioned in Article 23(3) but the list of what constitutes appropriate relief is not exhaustive so
there is

nothing to bar the Court from granting it.

Immunity: The grant of anticipatory bail does not give a person immunity from appearing before the
police

or any authority who would wish to question him in connection with the commission of a certain
offence.

He would still be required to report to the police and co- operate with the law enforcement agencies
as they

conduct the investigations, but safe from arrest.

Conditions that may be imposed by the Court before granting anticipatory bail: The person shall:

. make himself available for interrogation by the Police Officer as and when required; i

ii. not, directly or indirectly, make any inducement, threat or promise to any person acquainted with
the

facts of the case so as to dissuade him from disclosing such facts to the Court or to any Police Officer,

iii. not leave jurisdiction without the prior permission of the Court;
iv. show, by disclosing facts and events that he has reason to believe that he may be arrested for a
bailable offence(s) so that the Court may specify the offence(s) in respect of which the order will be
effective. The Court may cancel or direct that any person who has been released on bail be arrested
and committed to custody on an application moved by the complainant or the prosecution.

Bail pending trial/ Pre-trial bail: Bail pending trial may be granted by the:

i. Police at the Police Station: The Constitution and the CrPC provide that reasonable bond or bail can
be granted to a person who is arrested and is at the Police Station." The Officer-in-Charge of the
Police Station exercises this power where it is impracticable to produce the person arrested before
Court within reasonable time. The release may be upon the person arrested executing a bond of a
reasonable amount, with or without sureties, to appear at a specific time and specific Court. In
Republic v. Hussen," the Court held that the OCS is required to inquire into the case before he
exercises his discretion to release the person on bail. He may release the accused if in his opinion
there is insufficient evidence to proceed with the charge. If a person is arrested on a warrant, the
warrant will state whether he is to be held in custody or released on bail.

ii. Court: The Court can grant bail post-charge and prior to conviction. In certain cases post-
conviction, where a Court adjourns the case, whether for a week or a month, in preparation of post-
sentencing reports, it has to decide whether the accused person should be released on bail or
remanded in custody. The High Court may, whether or not a person has been committed for trial,
direct that the person be admitted to bail with or without sureties. It may also reduce the bail
directed by a Subordinate Court or Police Officer. Where the prosecution objects to the accused
person being granted bail, the Court will invite both the prosecution and the defence to make
submissions on the matter. The Magistrate, after hearing the prosecution's objection and any
counter objections, will then give his decision. In Republic v. George Kamau Ng'ang'a," it was argued
that the release of the co- accused on bail leaving the applicant was discriminatory and could not be
justified in law. The Court

rejected the contention holding that, a case may have two or more accused persons yet the Court
may

grant bail to some and refuse to others, without being in breach of any constitutional provisions.
This

must be so considering that the propensity to abscond is to be determined by individual

circumstances.
c) Bail pending appeal: This bail, unlike the two above, does not exist as of right and is issued only in

exceptional circumstances. The principles governing bail pending appeal are different from those

sureties are people being bought by a non-resident who will leave them money to pay up should
they he ordered to forfeit the recognizance after the accused absconds

Likelihood of interference with investigations: This is especially so where the investigations may be
incomplete by the time the accused is presented in Court and particularly necessitated by the
complex nature of the case. The accused may conceal, destroy or tamper with the evidence.

d) Likelihood of interfering with witnesses: An accused person who is in a position to interfere with
witnesses whether by violence, elimination, threats, intimidation or even bribery with the intention
of making the witnesses not turn up, or testify, or alter their testimony, may be denied bail.

e) Nature of the offence the necused is charged with: Although the COK does not cite the
seriousness of the offence with which an accused is charged as a factor, it is undoubtedly a relevant
factor. The more serious the charge, including the heavier the sentence, the more likely it is that the
accused will abscond and not attend trial and the more likely it is that he will be denied bail.

Likelihood of commission of more offences: It is difficult to tell whether the accused is likely to
commit any other offence while on bail. But, where a person is on bail and is charged with another
offence alleged to have been committed when on bail, the Court may refuse to grant bail.

g) The length of the remand period: The longer it will take before the trial ends, the more reason to
grant bail. The Court may also consider delays either by the prosecution or by the defence.
Unnecessary delay by prosecution may result in grant of bail in cases where the Court would
otherwise not grant bail. At the same time, delaying tactics by the defence (i.e., seeking unnecessary
adjournments) may also lead to cancellation of bail to have the case proceed with expediency.35

h) Safety or security of the accused: An accused person may be denied bail if the Court is satisfied
that he poses a danger to himself especially where he is charged with an offence that excites
considerable public revulsion such as child/sexual abuse or pedophilia and murder. It may also be in
the best interest of a suspect to be denied bail and kept in safe and protective custody if he is a child
or a young person without a family.

i) The accused is serving a custodial sentence: An accused person who is already serving a custodial
sentence for another offence cannot expect to be granted bail in connection with new matters. Once
the prior custodial sentence is served, there is no bar to making of an application for bail in the
current case.

j) Breach of bail terms: Where, having been previously released on bail in connection with the same

offence, an accused person absconds or otherwise breaches or violates the terms and conditions
upon which

the bail had been granted, he would not be eligible for bail.

k) The economic circumstances of the offender: Section 127 of CrPC provides that where through
mistake,

fraud or otherwise, insufficient bail terms or sureties have been accepted, or if they afterwards
become

insufficient e., through additional of more serious charges, the Court may require the accused to find
sufficient sureties failure of which he may be remanded in custody. 1) Relative strength of
prosecution case: If the trial Court is of the opinion that the prosecution case is not promising, it may
grant bail but this is entirely at the discretion of the Court. Equally, if the Court is of the

vii. Death of surety. Where a surety to a bond dies before the bond is forfeited, his estate discharged
from all liability in respect of the bond, but the accused may be required to find a surety. He may be
kept in custody until he does so.

is. Forfeiture of recognizance. The procedure for forfeiture is: Where it is proved that an accused po
has absconded, a warrant of arrest is issued against the accused and a summons to the surry
practice, the surety will be given time to look for the accused and it is only where he fails to do the
forfeiture will ensue. The Court will issue a notice to surety to pay his penalty or to show why he
should not pay. If sufficient cause is not shown and the penalty is not paid, the Court issue a warrant
of attachment of sale of the moveable property belonging to the surety, or his eme he is dead. If the
penalty cannot be recovered by attachment of sale, the Court will onder de imprisonment of such
surety for a term not exceeding six months." The Court may, at its discretion remit a portion of the
penalty mentioned and enforce payment in part only of the amours of recognizance for which one
had stood surety.32 All orders made by a Magistrate respecting the forfeiture of recognizance are
amenable to appeal to the High Court, which may also exercisetu revision jurisdiction over the same
as of right."
The Court must follow rules of natural justice before ordering for forfeiture. There are Courts the
when the accused person is called and does not respond, they issue a warrant of arrest. There is
neds verify since some accused persons have good reasons for failure to attend Court proceedings
and if m order of forfeiture is made, injustice will be mated. It is important to note that once an
order for forfeiture is made the Magistrate cannot recall it. There can only be an appeal.

7. FACTORS TO BE CONSIDERED BEFORE BAIL IS GRANTED:

The grounds or factors that a Court will consider when determining the question of pre-frial bail can
be summarised as follows:

a) Likelihood of appearance at the trial: This is the main factor because if the accused is not able to
attend trial, bail will subvert the administration of justice. In Republic v. Selwyn and 5 Others, the
Court held that the test to govern the discretion of the Court in deciding whether to grant or refuse
bail is e probability of the accused appearing to stand his trial. In applying the test, the Court will not
look to the character or behaviour of the accused at any particular time, but will be guided by the
nature of the crime severity of the punishment imposed and the probability of a conviction.

b) Accused's standing in the society: The Court will consider what sort of person the accused is in the
society, if a citizen or non-citizen, immigrant, etc. The Court may also consider the special
circumstances of the accused eg. illness which may be aggravated by incarceration. If accused is a
non-resident and le faces a serious charge, there is a chance that he will be tempted to flee. The
Court may order the accused to produce sureties before the application for bail is granted. The Court
must however determine whether the

c) Bond and surety: Surety proceedings, the following is the procedure

1. In addition to bond, an accused or his next of kin is required to provide a suitable surety or
sureties before grant of bail: One must have a Kenyan surety so that the likelihood of absconding is
minimized. The number of sureties to be produced is discretionary upon the Court

ii. The surety is brought before the Court for examination before admitting him/her as
sufficient/suitable surety to secure the release of a person in custody. This is to ensure that the
surety understands his/her obligation to the Court and his/her responsibility towards the accused
person, ie, attendance of Court proceedings. This apart, the surety would be needed to appear
before Court and give evidence on oath, confirming, inter alia, his/her financial resources, character,
including any previous convictions and relationship and proximity to the accused.

iii. A surety needs to appear in Court with documents of title to the property being offered as
security. The same should be in the name of the surety and accompanied by a recent search at the
relevant registry confirming the surety as the registered proprietor." S/he should also have a
valuation report from a reputable valuator confirming that the property has a value sufficient to
cover the security. Security i.e., titles, payslips, share certificate, logbooks etc., is then deposited
with Court.

iv. The prosecutor is given a chance to cross-examine and object to the surety given. The prosecution
is also to cross-check any details that they supply to the Court, ie, place of residence, nature of the
relationship that exists between surety and accused, employment, his capacity and authenticity of
any documents produced. Essentially if the prosecutor does not raise objection, the Court is
expected to grant bail.

v. After examination, the Court has power to reject a surety.

vi. Where the surety agrees to the terms, s/he is required to sign documents binding him/herself to a
certain amount of money that she is prepared to forfeit to the State should the accused abscond.

vii. Discharge of sureties: A person may apply to the Magistrate to discharge a surety, or a surety
may apply, at any time, to be discharged from his duty due to: a) suspicion of the accused person
wanting to abscond or due to misunderstanding between the accused person and himself, b)
personal reasons. i.e., where he may wish to free the property deposited as security for his other
purposes. There is no

requirement for a surety to furnish the Court with reasons.

Where there is reasonable suspicion that the accused person is about to abscond by leaving Kenya,
the

person holding the suspicion is required to swear an affidavit after which a warrant of arrest is issued

against the accused. The accused is then committed to prison until trial unless the Court sees it fit to

admit him to bail upon further recognizance."

In practice, applications for discharge are made during mention dates when the accused is present.

Where the accused is absent, a warrant of arrest may be issued to require attendance.
governing bail pending trial. In the application for 'bail pending trial, the presumption of innocence
cas the burden on the prosecution to show why the accused person should not be granted bail
while, in a application for 'bail pending appeal," the presumption of innocence is not operative. The
Courts have held that the presumption is that the accused was properly convicted and the burden is
on him to show why h should get bail pending appeal. Moreover, an application for 'bail pending
appeal' can only be made in respect of an offence which was originally bailable. The CrPC provides
that the High Court or Subordinate Court which has convicted or sentenced a person, may grant bail
or may stay execution on sentence or order pending the entering of an appeal, on such terms as to
security for the payment of money or the performance or non-performance of any act, or the
suffering of any punishment ordered by, or in the sentence or order as may seem reasonable to the
High Court or the subordinate court. Besides, where an application for 'bail pending appeal' is made
in the Court which convicted or sentenced the accused, the Court should not feel inhibited to
consider the application merely because it has convicted the accused. It should consider the
application for bail pending appeal on its own merits and rule on the same without being unduly
trammeled by the fact of conviction.

The main consideration for bail pending an appeal is that:

i. the applicant must show overwhelming chances of the appeal succeeding.

ii. Other secondary considerations include the:

medical condition of the applicant;

nature of the offence;

sentence imposed and the likely delay in the preparation of the appeal record and the hearing of the
same. 22

If that be so, there will be no justification for depriving the applicant his freedom.

6. WAYS IN WHICH THE COURT MAY GRANT BAIL:

There are three ways in which the Court can grant bail:

a) Cash bail: Cash is deposited with Court and a receipt obtained. The Court will record that cash bail
is
granted and in addition, it will indicate the mention date and the date for hearing. If it is within 14
days.

one does not need a mention day, but if is more than 14 days there must be a mention date. b)
Bond: It can be granted as free bond. The accused is released on their own bond after signing a
document which indicates an amount e.g., Ksh.5,000,000. In the event that the accused fails to turn
up in the Court, the amount is forfeited. If s/he eventually shows up, s/he is required to give reasons
for failure to show up

In USA, they have an institution of Bondsmen who can sign bonds for accused with the responsibility
of

ensuring that the accused people show up in Court. If the accused disappears, the bondsmen are
required to

forfeit the money.

opinion that, in view of the evidence produced, the accused may be tempted to abscond, the Court
may cancel bail.

m) Paucity of information: The accused may not be granted bail where the Court is not served with
sufficient information to enable it make a decision in relation to bail." For instance, where the police
have charged a suspect but still have insufficient details as to his identity and address, the Court
cannot grant bail

n) The circumstances out of which the charge had arisen: The Court is entitled to look at the totality
of the circumstances out of which the charges facing the accused arose. Thus, in Republic. Wainsing,
the accused was charged with various offences arising out of circumstances surrounding the death of
a Kenyan Government Minister. He allegedly attempted to take advantage of the death to make
personal pecuniary gains. He even attempted to bribe a Police Officer. The High Court held that
Magistrates are entitled to take into account the circumstances out of which the charges arose and
weigh them in deciding whether or not the applicant should be granted bail.

o) Antecedent character of the accused: In some jurisdiction this is taken into consideration.
However in Kenya, the Courts rarely have access to previous records of the accused. Therefore they
can only consider situations where the accused had previously absconded or abused bail terms.
p) Deposit in lieu of recognizance: The Court may require a person to execute a bond, or deposit
money, or some property as a condition for his release. 35 When such a person does so, he
essentially promises the Court that he will appear in Court when required. He may however, be
required, in addition to, or instead of executing the bond, to deposit a sum of money determined by
the Court. When money is deposited by the accused person or by some other person on his behalf, it
is referred to as cash bail.

q) Whether accused person is gainfully employed. The Courts also consider the fact that an accused
person is gainfully employed to enhance the likelihood that he or she will attend trial.

r) Public order, peace or security. The Courts will also consider whether the release of an accused
person will disturb public order or undermine public peace or security. 19

s) Others as cited in Republic v. John Kahindi Karisa and Another:

i. Previous criminal record of the accused, if any.

ii. Strength of the evidence which supports the charge.

iii. The gravity of the punishment in the event of conviction.

iv. The likelihood of further charges being brought against the accused.

v. The probability of guilt.

THE TRIAL PROCESS

1. INTRODUCTION:

The trial process is the convergence of processes that include: a) formal complaint, b) investigations,
c) compilation and presentation of evidence, and d) dispute resolution.

2. APPEARANCE OF PARTIES:
Accused person: After an accused person appears in Court in obedience to summons, or under arrest
and pleads not guilty to the charge, the stage is set for the Court to hear the case with a view to
determining or establishing whether the complaint against the accused is true.

Non-appearance of complainant. Where the complainant, having had notice of the time and place
appointed for the hearing of the charge does not appear, the Court acquits the accused, unless for
some reason it thinks it proper to adjourn the hearing of the case until some other date, upon such
terms as it thinks fit. Otherwise, the Court may release the accused person on bail, or remand him in
prison, or take security for his appearance as it thinks fit.

Non-appearance of witnesses: Witnesses are also required to appear in Court as and when required.
In Attorney General v. Shimanyula, Bosire J. held that once a Court decides to proceed with a matter
on the hearing date, it cannot proceed to acquit an accused under Section 202 of the CrPC because
witnesses did not turn up. Rather, it must ask the prosecutor to tender evidence in support of the
charge, and to proceed to acquit the accused if he fails to tender any evidence in support of the
charges as provided in Section 210 of the Code.

Appearance of both parties: If at the time appointed for the hearing of the case, both the
complainant and the accused person appear before the Court, or if the complainant appears and the
personal attendance of the accused person has been dispensed with under Section 99 of CrPC, the
Court shall proceed to hear the case

3. ADJOURNMENT:

Who is eligible: The right to adjournment is available to both the 'prosecution' and the 'defence.'
Neither the prosecution nor the defence however is entitled to indefinite adjournments, as this
would undermine the right to trial within a reasonable time and would be contrary to the public
interest.

Legal basis for adjourning: From the point of view of the defence, the legal basis for adjourning the
proceedings is the Constitution which guarantees the accused "adequate time and facilities for the
preparation of his defence." The Court therefore has to balance the right to adequate time for
preparation of the defence on the one hand and the necessity of a timely trial, on the other.

When to adjourn. The Court may, before or during the hearing of a case, adjourn the hearing of a
case to a certain time and place. Any such time and place must be appointed and stated in the
presence and hearing of the parties or their respective advocates. Where a case has been adjourned
to a date agreed upon between the parties, the hearing date ought not to be altered without the
involvement and consent of all the parties.
Period of adjournment: The adjournment must not be for more than 30 days, or, if the accused
person has been committed to prison, no more than 15 days.10

Adjournment a discretion: Section 205 of the CrPC confers a judicial discretion on the Court to grant
or refuse an adjournment. This discretion has to be exercised judicially depending on the
circumstances of each case. In Republic v. Mugema," the accused applied for an adjournment at the
close of prosecution case because the advocate he had engaged had not turned up in Court. The trial
Court ruled that the accused had not informed it at the commencement of the trial of his intention
to be represented by an advocate and that he had a proper opportunity to cross examine the
prosecution witnesses. The Court accordingly directed him to give his defence, which he did. On
appeal, it was held that the appellant had taken proper steps to engage an advocate but through no
fault of his, the advocate had not appeared. In the circumstances, the appellant ought to have been
allowed an adjournment to enable him have an advocate represent him.

Non-appearance of parties after adjournment: Section 206 of the CrPC provides that if, at the time
or place

to which the hearing or further hearing is adjourned, the accused person does not appear before the
Court

which inade the order of adjournment, the Court may, unless the accused person is charged with
felony.

proceed with the hearing as if the accused was present, and if the complainant does not appear, the
Court

may dismiss the charge with or without costs. However, where the accused person is convicted in his

absence, the Court may set aside the conviction upon being satisfied that his absence was from
causes over

which he had no control, and that he had a probable defence on the merits. Where the accused
person who

has not appeared is charged with a felony, or if the Court refrains from convicting the accused in his
absence, the Court shall issue a warrant for the arrest of the accused and cause him to be brought
before the

Court.

CASE FOR THE PROSECUTION:

When both parties are present and the trial commences, the prosecutor opens the case against the
accused person before proceeding to call witnesses and adduce evidence in support of the charge.
The prosecution starts because she is the one that bears the onus of proof. Even in instances where
a Statute casts the burden of proof on the accused person, the Republic must first lay some factual
basis by calling witnesses before the burden of proof shifts to the accused person.

The opening of the case takes the form of a brief address by the prosecutor in which he provides an
outline of and a guide to the case as well as presents a summary of the facts and theory of the
prosecution case.

After the opening address, the prosecution calls its witnesses in sequence usually beginning with the
complainant and concluding with the Investigating Officer. The prosecutor determines the order in
which witnesses are to appear before the Court.14 It is not necessary for the prosecution to call a
multiplicity of witnesses, some of whom may be merely cumulative and repetitive. It is enough to
call such number as are sufficient to prove its case. Where, however, the prosecution fails to call a
material witness without any apparent reason, the Court is entitled to presume or infer that the
evidence which that witness would have given would, if produced, be unfavourable or adverse to
that party as was pointed out in Bukenya v. Uganda 15

Each witness called is first sworn or affirmed and then led in testimony by the prosecutor.
Thereafter, the witness is subjected to cross-examination by the accused person or his advocate
before being re-examined. by the prosecutor," where necessary. 17

5. MODE OF TAKING AND RECORDING EVIDENCE:

Section 197(1) of the CrPC provides that the evidence of each witness is taken down in writing or on
a typewriter in the language of the Court by the Magistrate, or in his presence and hearing and
under his personal direction and superintendence. It must be signed by the Magistrate and it forms
part of the record. Such evidence is taken down in narrative form, but the Magistrate may take
down or cause to be taken

down any particular question and answer.

A record of any proceedings at a trial before a Magistrate may be taken in shorthand if the
Magistrate so directs; and a transcript of the shorthand shall be made if the Magistrate so orders,
and the transcript shall form part of the record."

If a witness asks that his evidence be read over to him, the Magistrate shall cause that evidence to
be read over to him in a language which he understands. 20

Whenever any evidence is given in a language not understood by the accused, and he is present in
person, it

must be interpreted to him in open Court in a language which he understands. If he appears by

advocate the evidence is given in a language which is not understood by the advocate, it must be
interpreted to him in English."

When documents are put in for the purpose of formal proof, it is in the discretion of the Court to
interpret as much of them as appears necessary."

When a Magistrate has recorded the evidence of a witness, he may also record such remarks as he
thinks material respecting the demeanour of such witness whilst under examination. However, such
remarks should not be taken in isolation or given undue or prejudicial weight. In Republic v.
Byamungu Kusiliba, it was held that an impression as to the demeanour of a witness ought not to be
made without testing it against the whole evidence in question.

CLOSE OF PROSECUTION CASE:

Once the prosecution has called all the witnesses and tendered all the evidence, it closes its case
whereupon the Court has to determine whether a prima facie case has been established but if it
closes its case prematurely, for e.g., due to refusal of an adjournment to call for further witnesses, it
is desirable to note the fact on record.

If, after considering the arguments and submissions (closing arguments), 27 the Court finds that the
prosecution has not made a prima facie case against the accused to require that he be put on his
defence, the Court makes a finding of not guilty, dismisses the case and acquits the accused person.
That determination is a judgment in law, hence it must be in writing and must state the points of
decision and the reasons therefor.
In Republic v. Wanjiku, the High Court held that failure of the Court to make a ruling on whether or
not an accused person has a case to answer at the close of the prosecution case is an incurable
defect.

If the Court finds that a prima facie case has been made out against the accused person sufficiently
to require him or her to make a defence, the stage is set for the hearing of the defence case." This
determination, unlike the one of no case to answer, which must be elaborate in setting out the
reasons for the accused person's acquittal, is usually expressed in a single sentence. This is to avoid
the appearance of having made a determination of guilty while at the same time inviting the accused
to tender his defence.

7. CASE FOR THE DEFENCE:

Once the Court determines that a prima facie case has been established, it must, one more time,
explain the substance of the charge to the accused person and:

a) inform him of his right to give evidence on oath from the witness box on his own behalf and that if
he

does so he will be liable to cross-examination;

b) inform him of his alternative right to make an unsworn statement from the dock;

atk him whether he has any witness to examine or other evidence to adduce in his defence,

d) remind him that he is under no obligation to say anything

Where the accused opts to give an unswore statement, his or her statement is recorded in full by the
Court and should not be cut short. The accused must be freely allowed to make his or her defence.
Moreover, the Court cannot prompt the accused person to either add or subtract from an unworn
statement

If the accused person says that he does not intend to give evidence or make an unworn statement,
or to adduce evidence, then the prosecution may sum up the case against the accused pernon.
However, where the accused opts to give evidence or make an unsworn statement, the Court is to
call upon him so enter upon his defence,"
The accused or his advocate may then open his case, stating the facts or law on which he intends to
rely. and make such comments as he thinks necessary on the evidence for the prosecution.
Thereafter, accused may give evidence on his own behalf and he or his advocate may examine his
witnesses (if any), and after

their cross-examination and re-examination (if any) may surn up his case Where the accused elects
to call witnesses, the accused has to give his or her evidence first, followed by the witnesses. This
evidence is subject to the same rules as of the prosecution in examination-in-chief, cross-

examination and re-examination.

Where the witnesses of the accused are not available in Court at a particular time, the Court may
adjourη το allow them appear unless it considers that their absence is due to any fault or neglect of
the accused person. The Court may also issue summons to compel the attendance of such witnesses
on behalf of the accused.

Where the only witness to the facts of the case called by the defence is a person charged, he shall be
called as a witness immediately after the close of the evidence for the prosecution,

If the accused person or his witnesses adduce evidence that introduces a totally new matter that the
prosecutor could not, by the exercise of reasonable diligence have foreseen, the Court may allow the
prosecutor to adduce evidence in reply thereto. This rebuttal evidence may take the form of
recalling witnesses who had previously testified or calling new witnesses altogether and tendering
new evidence which is subject to the usual rules as to examination and cross-examination

8. COMPETENCE AND COMPULSION OF WITNESSES:

The capacity of a witness to give evidence in a trial is governed by rules of competence and

compellability

All persons are competent to testify unless the Court considers that they are prevented from
understanding

the questions put to them, or from giving rational answers to those questions, by reason of tender
years.
extreme old age, disease (whether of body or mind) or any similar cause."

If, without sufficient excuse, a witness does not appear in obedience to the summons, the Court, on
proof of the proper service of the summons, may issue a warrant to bring him before the Court at
the time and playe specified,

If the Court is satisfied by evidence on oath that the person will not attend unless compelled to do
so. may at once issue a warrant for the arrest and production of the witness before the Court at a
time and place

specified,

A witness is not excused from answering any question as to any matter relevant to the fact in issue
in a criminal proceeding, upon the ground that the answer to such question may incriminate such
witness, that it will expose such witness to a penalty or forfeiture of any kind. The law deals with
such legitimate concerns by providing that no such answer which a witness is compelled to give shall
subject him to any arrest or prosecution, or be proved against him in any criminal proceeding,
except a prosecution for giving false evidence by such answer.44

9. SWEARING AND AFFIRMATION:

Oath: Every witness in a criminal cause or matter must be examined upon oath, and the Court before
which any witness shall appear shall have full power and authority to administer the usual oath.""

A witness who submits to the oath has to be sworn on a Holy Book such as a Bible, Koran or Gita.
The oath takes the following form: "/. do swear that the evidence I shall give to this Court touching
the matter in issue, shall be the truth, the whole truth and nothing but the truth. So help me GOD."

Where an oath has been duly administered and taken, the fact that the person to whom it was
administered had as the time of taking the oath no religious belief shall not affect the validity of the
oath."

Affirmation: Where a witness objects to being sworn either on the basis of lack of religious belief, or
that the taking of an oath is contrary to his or her religious belief, such witness shall be permitted to
make a solemn affirmation instead of taking an oath." The legal effect of affirmation is the same as
that of an oath. Affirmation takes the following form: "I... do solemnly, sincerely and truly declare
and affirm that the evidence I shall give in this Court, touching the matters in question, shall be the
truth, the whole truth and nothing but the truth."49
10. EXAMINATION:

A Court may, at any stage of a trial proceeding, summon or call any person as a witness. It may
examine any person in attendance though not summoned as a witness; or recall and re-examine a
person already

examined if the evidence of such person appears to it essential to the just decision of the case.
Where the

Court recalls or permits the recall of a witness, then the prosecution or defence has a right to cross-
examine

any such person and the Court shall adjourn the case for such time (if any) as it thinks necessary for
the

cross-examination to be adequately prepared if, in its opinion, either party may be prejudiced by the
calling of that person as a witness, 50

At the commencement of the trial, it is advisable to request both the prosecution and defence
witnesses who are yet to testify to stay outside the Court while a witness testifies. The Court should
not, however, reject the evidence of a witness merely because he was in Court when other
witnesses were testifying. His evidence should be taken and the fact of his prior inopportune
presence in Court only goes to the weight to be attached to such evidence as was held in Republic v.
Waithaka and Another.

There are three stages of examining witnesses:

a) Examination-in-chief: The direct examination of a witness by the party who calls him. The object
of examination in chief is to obtain testimony in support of the version of the facts in issue or
relevant to the issue for which the party calling the witness contends. The witness is asked questions
relevant to the issue before Court in their natural sequence. Questions which cannot be asked at this
stage are:

i. Questions regarding a witness' personal opinion or points of law.

ii. Leading questions i.e., questions which obviously suggest the desired answer or assume the
existence of disputed facts which the witness has been called to testify about.
iii. The examination must not be conducted in an attacking manner. Usually, at cross-examination
one can attack but one cannot do so to an own witness. If a witness turns hostile, a party can ask the
Court to declare the witness a hostile witness and once the Court does so, a party can proceed to
attack and impeach the creditability of that witness.

Ordinarily, a witness may not read the evidence from a statement he previously recorded but he
may refresh his memory from it or from notes, so long as the same were written shortly after the
event he is testifying about.52

b) Cross-examination: The examination of a witness by the adverse party or his advocate." The Court
has a duty not only to invite the accused to cross-examine the witnesses of the prosecution
especially where the accused is not represented by an advocate, but also to record the answer he
gives. In Republic v. Godhana, 55 the Court held that cross-examination is one of the principles of
fair hearing and a denial of the right to the accused will vitiate any resultant conviction. The
appellant in this case had not been given the opportunity to cross-examine his co-accused and other
prosecution witnesses. At this stage, one is allowed to ask leading questions. There are three aims of
cross-examination:

i. To elicit further facts which are favourable to the cross-examining party;

ii. To test and cast doubt on the evidence given by the witness-in-chief;

iii. To impeach the credibility of the witness.

c) Re-examination: This is where a witness has been cross-examined and is then examined by the
party

who called him. At this stage, leading questions cannot be asked. The questions asked are meant to

and

clarity issues brought out during cross-examination. The stage is confined to matters that during
cross-examination. New matters can only be introduced with leave of Court When the evidence of
both the accused and the prosecution has been adduced, their witness submissions are allowed
wherein both sides are supposed to summarize their cases 17
11. DIFFICULT WITNESSES: There are two types of witnesses who present difficulties to the party
calling them as well as to the Cour namely

a) Hostile Witnesses: This is one who gives evidence that is contrary to that which the party that
called wishes to rely on to support their case. It is for this reason that Section 161 of the Evidence
Act, Cap empowers the Court to permit the person who calls a witness to put any questions to him
which might be put in cross-examination by the adverse party. This is referred to as declaring a
witness hostile. In Republic v. Alowo," the Court held that the basis of leave to treat a witness as
hostile is that, the evidence which the witness is giving and some earlier statement shows him to be
unreliable and this renders his evidence of negligible value. Similarly, in Republic v. Shiguye, the
Court held that the effect of declaring a witness as hostile is to render his whole (and not part) of
evidence untrustworthy. Such a witness is unreliable whose evidence cannot be accepted by the
Court. The purpose of having a witness declared hostile by the party who calls him is thus to
discredit him completely. Equally, in Republic v. Abel Monari Nyamamba and 4 Others, the Court of
Appeal held that "no Court could base a conviction solely on evidence of a hostile witness because
his unreliability introduces an element reasonable for doubt."

b) Refractory witness: This refers to any person who, appearing either in obedience to summons or
by virtue of a warrant, or being present in Court and being verbally required by the Court to give
evidence without offering sufficient excuse for his uncooperative conduct or neglect: i) refuses to be
sworn; or ii) having been sworn, refuses to answer any question put to him; or iii) refuses to produce
any document or thing which he is required to produce; or iv) refuses to sign his deposition. In
dealing with such a witness, the Court may adjourn the case for any period not exceeding 8 days.
and may in the meantime commit him to prison, unless he sooner consents to do what is required of
him. If the person, upon being brought before the Court at or before the adjourned hearing, again
refuses to do what is required of him, the Court may again adjourn the case and commit him for the
same period and so again from time to time until the person

consents to do what is so required of him.63 Such person is also liable to any other punishment or

proceeding for refusing or neglecting to do what is so required of him.

12. PENALTY FOR NON-ATTENDANCE OF WITNESS:

A person summoned to attend as a witness who, without lawful excuse, fails to attend as required,
or who. having attended, departs without having obtained the permission of the Court, or who fails
to attend after adjournment of the Court after being ordered to attend, shall be liable by order of
the Court to a fine not exceeding Ksh.5000.03

The fine shall be levied by attachment and sale of movable property belonging to the witness within
the local limits of the jurisdiction of the Court.
In default of recovery of the fine by attachment and sale, the witness may, by order of the Court, be
imprisoned as a civil prisoner for a term of 15 days unless the fine is paid before the end of term"
but the High Court may remit or reduce a fine imposed by a Subordinate Court if good cause is
shown.

13. SPECIAL WITNESSES:

Deaf and dumb witnesses: The Evidence Act, Cap 80 provides that a witness who is unable to speak
may give his evidence in any other manner in which he can make it intelligible for e.g., by writing or
by signs but, such writing and signs must be made in an open Court and evidence so given is deemed
to be oral evidence. In Republic v. Hamisi, 10 the Court held that a deaf and dumb witness is not
incompetent as a witness if he can be made to understand the nature of an oath and if intelligence
can be conveyed to and from him by means of signs.

Lunatics: When in the course of a trial the Court has reason to believe that the accused is of unsound
mind and consequently incapable of making his defence, it shall inquire into the fact of
unsoundness," and postpone proceedings in the case. If the case is one in which bail may be taken,
the Court may release the accused person on sufficient security being given that he will be properly
taken care of and prevented from doing injury to himself or to any other person, and for his
appearance before the Court or such officer as the Court may appoint in that behalf. For a case
involving a non-bailable offence or if sufficient security is not given, the Court will order that the
accused be detained in safe custody in such place and manner as it may thinks fit, and shall transmit
the Court record or a certified copy thereof to the Minister for consideration by the President. 74
Upon consideration of the record, the President may by order under his hand addressed to the Court
direct that the accused be detained in a mental hospital or other suitable place of custody, and the
Court shall issue a warrant in accordance with that order; and the warrant shall be sufficient
authority for the detention of the accused until the President makes a further order in the matter

or until the Court which found him incapable of making his defence orders him to be brought before
it. 75 In

case a person detained in a mental hospital or other place of custody is found by the medical officer
in

charge of the mental hospital or place to be capable of making his defence, the medical officer shall

forthwith forward a certificate to that effect to the Attorney-General, who shall thereupon inform
the Court which recorded the finding concerning that person whether it is the intention of the
Republic that Proceedings against that person continue or otherwise." If the Attente Court shall
order heat it is the intention of the Republic that proceedings against that person continue, the
Court shall order the removal of the person from the place where he is detained and shall cause him
to be brought in custody before it. If otherwise, the Court shall forthwith issue an order that the
person be discharged in respect of the proceedings brought against him and released from custody,
but the discharge and release shall not operate as a bar to any subsequent proceedings against him
on account of the same facts. 78 Children: The Oaths and Statutory Declarations Act, Cap 15
provides that a child of any age may be

sworn as a witness in a criminal case provided that he appears to possess sufficient intelligence to
understand the nature and obligation of the oath, for his competency depends on his understanding,
not his age. 19 In Republic v. Gabriel, so the Court of Appeal held that it is always the duty of the
Court to ascertain the competence/ intelligence of a child to give evidence. In Republic v. John
Otieno Oloo, the Court of Appeal went on to observe that the trial Court, before swearing a child of
tender years, should out of caution form an opinion on a voire dire examination whether the child
understands the nature of an oath or not. Failure to do so could occasion a miscarriage of justice had
that been the only witness on the issues that were before the Court. Even where a child does not
understand the nature of an oath, he may, nonetheless, give unsworn evidence. The general rule is
that an accused cannot be convicted of the offence charged against him unless the unsworn
evidence of a child is corroborated by some other material

evidence implicating him. 83 The position however is different where the evidence given is that of a
victim 'child of tender years. 184 Such evidence, as was held in the case of Republic v. Mohamed 85
need not be corroborated if the Court is satisfied that the child is telling the truth.

14. TRIAL OF CHILDREN:

The unique vulnerabilities of young persons have led to the enactment of several child-centric
international and municipal laws. In Kenya, the controlling statute is the Children Act, 2001 which
removes children in conflict with the law from the jurisdiction of ordinary Courts and places them
under Special Courts known as Children's Courts presided over by Magistrates appointed by the
Chief Justice who, by notice in the

Gazette, stipulates such Magistrates' geographical jurisdiction.

The Children's Courts have jurisdiction to hear any criminal charge against a child, other than a
charge of

murder, or a charge in which the child is charged together with a person(s) of the age of eighteen
years and
above.- Where in the course of any proceedings in a Children's Court it appears to the Court that the
person charged, or to whom the proceedings relate, is over 18 years of age, or where in the course
of any proceedings in any Court other than a Children's Court it appears to the Court that the person
charged or to whom the proceedings relate, is under 18 years of age, nothing shall prevent the
Court, if it thinks fit, from proceeding with the hearing and determination of the case. 87

Where any conviction or sentence made or passed by a Court other than a Children's Court is
appealed against, or is brought before the High Court for confirmation or revision and it appears that
the person convicted was at the time of the commission of the offence under 18 years of age, the
High Court shall have power to substitute for the conviction a finding of guilty in accordance with
Section 196 and substitute for the sentence an order under section 125(2) of this Act.88

The foregoing safeguards are now part of the Constitution, which provides that every child has the
right not to be detained, except as a measure of last resort, and when detained, to be held for the
shortest appropriate period of times and separate from adults and in conditions that take account of
the child's sex and age.90 Furthermore, a child's best interests are of paramount importance in
every matter concerning the child. 91