CRIMINAL

LITIGATION

2017

SUMMARY
Part 1
TABLE OF CONTENTS

STRUCTURE AND JURISDICTION OF COURTS ................................................................................................ 2

ARREST ..................................................................................................................................................................... 4
IDENTIFICATION PARADES ................................................................................................................................. 8
PREPARATION OF CASE FILES ......................................................................................................................... 12
 TOPIC ONE

STRUCTURE AND JURISDICTION OF COURTS

Kenya’s system of courts is structured as follows:-

i. Supreme Court (Art. 163 of the Constitution);
 Consist of
CJ (president of the court),
DCJ (Vice – president) &
5 other judges.
 It’s properly constituted if it has a minimum of 5 judges – for purpose of its proceedings.
 Jurisdiction.
 Exclusive original jurisdiction to hear and determine disputes relating to the elections to the
office of President arising under Article 140.
 Appellate jurisdiction to hear and determine appeals from –
Court of Appeal (CoA).
any other court or tribunal as prescribed by national legislation.
 Considerations in submitting an appeal to SC
in any case involving the interpretation or application of this Constitution, Appeals
shall lie at SC as a right.
Where SC or the CoA, certifies that there is a matter of general public importance.
NB: Certification by CoA may be reviewed by the SC.
 SC may give an advisory opinion at the request of
 the national government
 any State organ
 Any county government – on a matter concerning county government.
 It is the apex court of record. see art.163 (7).
 Jurisdiction to make rules for the exercise of its jurisdiction.
 Jurisdiction as the High Court to punish any person for contempt of Court.see.S.28(4).
ii. Court of Appeal
a) The Constitution of Kenya, 2010.Article 164);
 Shall consist of not less than twelve judges, as may be prescribed by an Act of Parliament. Art. 164(1)a
 The president of CoA shall be elected by the judges of the Court of Appeal from among themselves. Art.
164(2).
 Jurisdiction: - to hear an appeal from the HC or any other court/ tribunal as provided by an Act. Art.
164(3).

b) Court Of Appeal (Organization And Administration) Act, NO. 28 OF 2015

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  S.4 Constitution of the Court
The Court shall consist of :-
 the President of the Court
 not less than twelve judges appointed in accordance with Articles 164(1)(a), 166(1)(b) and
166(4) of the Constitution.
 Court shall be deemed to be duly constituted despite any vacancy in the office of the
President of the Court or other judge.
 S.5 Jurisdiction: - As provided for by Art. 164(3) i.e. to hear an appeal from the HC or any other
court/ tribunal as provided by an Act.

c) Appellate Jurisdiction Act

 S.3 Jurisdiction of Court of Appeal
Jurisdiction to hear and determine appeals from the High Court and any other Court or
Tribunal prescribed by an Act of Parliament. S.3(1)
Shall have, in addition to any other power, authority and jurisdiction conferred by this Act, the
power, authority and jurisdiction vested in the High Court.

iii. High Court (Art. 165 of the Constitution)

Shall consist of the number of judges prescribed by an Act of Parliament. Art. 165(1).
Shall be organized and administered in the manner prescribed by an Act of Parliament. Art.
165(2).
The principal judge shall be elected by the judges of the High Court from among themselves.
Jurisdiction Art. 165(3).
 Unlimited original jurisdiction in criminal and civil matters.
 Jurisdiction to determine the question whether a right or fundamental freedom in the Bill
of Rights has been denied, violated, infringed or threatened.
 Jurisdiction to hear an appeal from a decision of a tribunal appointed under this
Constitution to consider the removal of a person from office. (Apart from that appointed
under Article 144).
 Jurisdiction to hear any question respecting the interpretation of this Constitution
including:-
 Whether any law is inconsistent with or in contravention of this Constitution.
 Whether anything said to be done under the authority of this Constitution or of
any law is inconsistent with, or in contravention of, this Constitution.
 any matter relating to constitutional powers of State organs in respect of county
governments and

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  any matter relating to the constitutional relationship between the levels of
government.
 A question relating to conflict of laws under Article 191.
Any other jurisdiction, original or appellate, conferred on it by legislation.
Supervisory jurisdiction over the subordinate courts and over any person, body or authority
exercising a judicial or quasi-judicial function, but not over a superior court.

iv. Subordinate courts (Art. 169)

 The subordinate courts are: –
 Magistrates
 Kadhi Courts.
 Court Martial & any other court/ tribunal that may be established by an Act of parliament.
 Parliament shall enact legislation conferring jurisdiction, functions and powers on the subordinate courts.

TOPIC TWO

ARREST
 Arrest is the actual seizure or touching of the person’s body with a view to his detention. It is a
forcible restraint on a person’s liberty either on the basis of a warrant of arrest or power donated by law.
 Unless there is submission to custody by word or action. The police officer or other person making an
arrest shall actually touch or confine the body of the person to be arrested. Section 21 (1) CPC.
 If somebody is cooperating there is no reason to actually use restraint like handcuffs on them. Section
24.
 A police officer is empowered to search anyone who is arrested. Section 25 CPC.
 Police are given powers to detain and search vehicles, aircrafts etc. where there is reason to suspect
that it has been employed in the commission or to facilitate an offence. Section 26.
 Search on a woman must be made by another woman with strict regard to decency. Section 27
 A police officer has power to seize offensive weapons in the course of making an arrest. Section 28.


A. ARRESTS WITHOUT WARRANTS

i. By a police officer.
 a police officer may, without an order from a magistrate and without a warrant, arrest any person.
Sections 29, 30 and 32 CPC.
 a police officer may arrest any person w/o a warrant where :-The person is suspected of
committing cognizable offenses
Committing a felony.

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 breach of the peasce
obstruction of police officers executing their duties
possession of suspected stolen property
deserter from the armed forces
Possessors of implements of house breaking see others.

Police Act

disobeying any lawful order given by any police officer regulating and controlling traffic. S 16(2)
Any person who fails to produce a license on being required to do so by any police officer in
uniform. section 25(2)
Deserting the police Force. Section 41(2)

Administration Police Act

Person who fails to obey a reasonable signal given by an officer in uniform requiring him to stop
any vehicle or vessel. section 10(3)
a person who fails to produce a license, permit, certificate or pass when called upon by an officer.
section 11(2).
Person suspected of having committed a cognizable offence. S.13.
Commits a breach of the peace.
Obstructs an officer while in the execution of his duty.
Possession of stolen property.
Deserter from the armed forces or NYS.

ii. Arrest by Private Person

 A private person may arrest any person who in his view commits a cognizable offence, or whom he
reasonably suspects of having committed a felony. S.34 (1) CPC.
 The owner of a property or his servants may arrest a person found committing an offence involving injury
to property. S.35 (1) CPC.
 A magistrate may order any [private] person to make an arrest. S.38.CPC
 NB: Just like police officers, private persons should use reasonable force where the person to be arrested
resists. Excessive force may attract prosecution under S.250 & 261 PC. See
o Uganda v. Muherwa
The deceased was suspected to be a thief.
Private person used a weapon to incapacitate him.
The deceased died.
The private person was prosecuted and convicted of manslaughter.
o Beard and Another v R,
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 The appellants had arrested the complainant, tied him and assaulted him.
The complainant had not made any attempt to escape.
Appellants were prosecuted and convicted of assault and unlawful confinement as they
used unreasonable and unnecessary force.

iii. Arrest by Magistrates

i. A magistrate can personally arrest an offender or order any person to do so when an offence is
committed in his presence or his jurisdiction. S.38 CPC.
o SaidiBakariKionywaki v. Republic 1968] E.A. 195(T)
in effecting an arrest, a magistrate acts as a judicial officer and
not in an administrative capacity and
He cannot be subject to civil and criminal proceedings.

RIGHTS OF ARRESTED PERSONS : CONDITIONS OF ARREST

a) Statutory rights
ii. Reasonable force ought to be used when a person resists arrest. S.21 (3) provides that ‘Nothing in this
section shall justify the use of greater force than was reasonable in the particular circumstances’.S.21
(3).CPC.
iii. The person arrested shall not be subjected to more restraint than is necessary to prevent his escape.
S.24.CPC.

b) Constitutional rights (article.49).

i. An arrested person has the right to be informed promptly, in language that he understands. Article.49(1)a
the reason for the arrest;
the right to remain silent;
the consequences of not remaining silent
ii. Right to remain silent;
iii. Right to communicate with an advocate and other persons whose assistance is necessary.
iv. Not to be compelled to make any confession or admission that could be used in evidence against the
person.
v. To be held separately from persons who are serving a sentence.
vi. to be brought before a court as soon as reasonably possible but not later than twenty-four hours after
being arrested or if the twenty-four hours ends outside ordinary court hours or on a day that is not an
ordinary court day, the end of the next court day.

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  Albanus Mwasia Mutua Vs. Republic CA 120 of 2004
The accused was convicted of attempted robbery with violence.
He was arrested on 17/6/2000 and arraigned on 19/2/2001.
There was delay of 8 months.
The prosecution offered no explanation.
Section 72 (3) of the Constitution was upheld.
 Ndede vs. Republic CA 1991 KLR 567 -2nd Appeal.
the accused person was arrested on 29/9/97
held in comunicado for 30 days and not charged
Appeal allowed as constitutional right was violated.
 Gerald Macharia Githuku vs. Republic CA 119 of 2004, 2nd appeal;
Accused person convicted on robbery with violence.
Arrested on 13/1/95 arraigned on 30/1/95.
The delay of 3 days was not explained.
The appeal was upheld.
 Anne Njogu& 5 others vs Republic HCT Misc Criminal Application 551 of 2007,
The applicants were arrested on 31/7/07 at 12 noon
were not brought to court until 2/8/07
On 1/8/07, the Misc. application was filed and subsequently heard on 2/8/07.
When the accused were brought to court, the advocates blocked taking of pleas in the magistrate’s
court pending the outcome of the High Court application claiming that the applicants were not
arraigned in court within the statutory 24 hours.
The Misc. application was upheld and proceedings held to be a nullity.
vii. At the first court appearance, to be charged or informed of the reason for the detention continuing, or
to be released.
viii. To be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are
compelling reasons not to be released.
ix. A person shall not be remanded in custody for an offence if the offence is punishable by a fine only or
by imprisonment for not more than six months.

WHERE TO RAISE THE ISSUE OF UNLAWFUL DETENTION

 Samuel NdunguKamau and anothervs Republic C.A.223 of 2006 the question of arrest and detention
should be raised first in the Trial court.
 Dominic Mutie MwalimuVs Republic C.A. 217 of 2005,
The Court of Appeal stated that the issue of unlawful detention of 2 days was not raised in the
trial court or in the 1st appeal.
The prosecution was not given an opportunity to explain the delay.
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 The ground of appeal had no merit.

WHEN TO RAISE THE ISSUE OF UNLAWFUL DETENTION

 Republic vs Joseph Ndirangu Nungari and another HCT 42 of 2006.

The accused persons were charged with murder.
At the close of the prosecution case, defense raised preliminary objection on unlawful detention.
Held: The application / objection ought to have been raised at the earliest stage.
The preliminary objection dismissed.
 Republic Vs Arafat Daudi HCC 91/2005
The applicant was charged with murder.
The applicant was arrested on 3/2/05 arraigned on 15/9/ 05 (7 months delay).
A preliminary objection was raised based on unlawful detention.
The issue was raised after close of prosecution case after the ruling that accused had a case to answer.
At his point, the court was ready to hear the defense.
High Court : the prosecution was denied the opportunity to offer explanation on delay.

NB: The court has been inclined to make a determination on the basis of specific circumstances of the case.

TOPIC THREE

IDENTIFICATION PARADES
Definition

 The Black’s law dictionary defines an identification parade as „a police identification procedure
 In which a criminal suspect and other physically similar persons are shown to the victim or a witness
 to determine whether the suspect can be identified as the perpetrator of the crime.
 Held to enable eye witnesses to identify the suspect.
 It is thus a process or forum organized by the police.
 In which a suspect is lined up together with eight other persons.
 Who are of the same height, age, general appearance and the same class of life as the suspect.
 a witness or witnesses are asked to identify whether or not the accused or the suspect is present in that
line-up.
 The eye witness ability to identify the suspect is tested with accuracy.
o Njihia v Republic [1986] KLR 422

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Dock identification

 Dock identification - a witness points out the accused standing at the dock and identifies him/her as the
culprit who committed the crime.
 courts generally avoid convictions based on dock identifications as
 Evidence without corroboration is of a lesser value. See…
o Gabriel Njoroge vs. Republic 1982-1988 1 KAR, 34 the court held that the dock identification of
a suspect is generally worthless unless other evidence is adduced to corroborate it.
o Owen Kimotho Kiarie vs. Republic Criminal Appeal No. 93 of 1983 (Unreported). Also held that
dock identification of a suspect is generally worthless unless other evidence is adduced to
corroborate it.
o Amolo vs. Republic 1991 2 KAR, 254 the reason for the courts reluctance to accept a dock
identification is a principle of law that is not permissible for a party to lead his own witness.
o Mwiruri and 2 Others vs. Republic Criminal Appeal No. 117, 131, 133 of 2000 another reason
for the court’s reluctance to accept a dock identification is because of the belief that the accused
presence in the dock might suggest to a witness that he is expected to identify him/her as the
person who committed the offence.

Procedure for Conducting of identification parades

i. A witness should give the description of the accused before taking part in a parade.
 Where the case is solely based on the evidence of identification, the description of the offender
made by the victim during the first report to the police must be recorded and later produced in
evidence.see…………
o Ntelejo Lokwam v Republic (2006) e KLR The court held that the description of the
offender made by the victim during the first report to the police must be recorded and
later produced.
ii. The suspect should be informed of
 the reason for the parade and
 That he may have a solicitor or friend present when the parade is being conducted.
iii. The police officer in charge of the case may be present but he should not conduct the parade.
iv. The witness (es) should not see the accused before the parade as it will be prejudicial to the accused
and would greatly undermine the evidential value of the parade.
o Livingstone Mwangi v Republic (2007)e KLR
Held that the identification parade was not worthy of any evidential value.
since the identifying witness had already been shown the suspect
o Omar vs. Republic Criminal Appeal No. 133 of 1985
the parade had been conducted properly

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 The appellant proved that he had been seen by the witness prior to the parade.
Held that the parade was useless.
v. The suspected persons should be placed among at least eight persons, as far as possible of similar
age, height, general appearance and class of life as himself.
o Njihia v Republic
Three suspects had been lined with eleven others.
Court observed that this was mathematically too low a ratio to exclude the chance of
random guesswork.
held that the identification parade was not proper because it was contrary to the
ratio of one suspect to eight persons.
o David Mwita Wanja & 2 Others vs. Republic,
The three appellants were charged with robbery with violence.
They were convicted and death penalty imposed on them.
Their first appeal was dismissed.
They appealed to the court of appeal.
The issue of law raised centered on the identification parades
In this case, two parades were conducted.
The eight persons, who took part in the second parade were the same persons who were in the
earlier parade. They had however changed the positions they stood.
held that this was extremely prejudicial to the appellant as the witness could readily tell by
elimination that the two appellants were the only new faces in the parade.
vi. The suspect will be allowed to take any position he chooses and will be allowed to change his
position after each identifying witness has left.
vii. The witnesses ought not to communicate with each other.
viii. Every unauthorized person must be excluded
ix. If the witness desires to see the suspect walk, hear him speak, see him with his hat on or off, this
should be done, but in this event the whole parade should be asked to do likewise.
x. Police should ensure that the witness actually touches the person he identifies.
xi. At the termination or during the parade, the officer conducting it should ask the suspect if he is
satisfied that the parade is being/has been conducted in a fair manner and notes his reply
xii. When explaining the procedure to a witness, the officer conducting the parade will tell him that he will
see a group of people which may or may not contain the person responsible.
 The witness should not be told to pick out somebody or be influenced in any way whatsoever
o Oluoch v Republic Criminal Appeal No. 66 of 1984
One of the identifying witnesses testified that he was told to ‘identify the people who
robed me on august 10th 1982.’
Held: that the statement reasonably implied that the persons who robbed him were at
the parade.
Held : the evidence was considerably of lesser value.
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 o Rex vs. Lulatikwa s/o Kabaile alias Rutaliba s/o Kasese 1941 EACA 6 it was stated that, „it is
dangerous to suggest to an identifying witness that the person to be identified is believed to be present
in the parade.
x. After each witness leaves the parade, it must be recorded whether he identified the suspect and in what
circumstances.
xi. A record should be made by the officer conducting the parade of any comment made by the suspect
during the parade, particularly comments when the suspected is identified.
xii. The parade must be conducted with scrupulous fairness; otherwise the value of the identification as
evidence will be lessened or nullified. R vs. Mwango s/o Manaa (1936) 3 EACA 29.

Kenyan jurisprudence on identification parades

o Republic vs Mwango & Maina (1936) 3 EACA 29

Identification parade was conducted in hospital where the suspect was admitted.
Comprised of three (3) men only.
Held: This was a violation of standing order that required accused to have been placed
among 8 persons who are of the same height, age, general appearance.
The order that states that the identifying witness should not be asked to “pick out the
person” he believes committed the offence was also violated.
o Oluoch vs Republic, Criminal Appeal No. 66 of 1984
A witness who attended the identification parade stated that he had been told to “identify the
people who robbed him.”
Held: It is dangerous to suggest to an identifying witness that the person to be identified is
believed to be present in the parade.
o Joseph Kariuki vs. Republic, Criminal Appeal No. 74 of 1985
Four persons were lined up with twelve (12) other persons in an identification parade.
The accused should have been lined up against at least eight (8) other non-accused persons.
o Njihia vs. Republic, Criminal Appeal No. 13 of 1986
Three (3) suspects were mixed with eleven (11) others for an identification parade.
Held: Mathematically, that was too low a ratio to exclude the chance of random guesswork.
o Kamau and 2 Others vs. Republic, Criminal Appeal No. 337 of 1987
The suspects were identified in three identification parades.
Each suspect was called to take his place in a parade involving eight (8) members.
In all the parades conducted, the same members lined up in the same order.
Held : “The 2nd and 3rd identification parades were not conducted properly.
o Omar vs. Republic, Criminal Appeal No. 133 of 1986
The accused in this case was identified by two witnesses.
The witnesses had seen him prior to the parade.

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 o David Mwita Wanja & 2 Others vs. Republic,
The three appellants were charged with robbery with violence.
They were convicted and death penalty imposed on them.
Their first appeal was dismissed.
They appealed to the court of appeal.
The issue of law raised centered on the identification parades
In this case, two parades were conducted.
The eight persons, who took part in the second parade were the same persons who were in the
earlier parade. They had however changed the positions they stood.
held that this was extremely prejudicial to the appellant as the witness could readily tell by
elimination that the two appellants were the only new faces in the parade.

TOPIC FOUR
PREPARATION OF CASE FILES
A. Police file
i. Sub file “A” initial report - complainant/victim/witness will make a report to the police station. The
report is recorded in the occurrence book (ob).
ii. Sub-file “B” - Sketch plan & Documentary exhibits
 In the process of investigations exhibits are collected or produced
 The documentary exhibits are official and personal documents and include expert evidence
iii. Sub-file “C” - Experts report including doctor’s report, postmortem report, ballistic report, document
examiner, government analyst report.
iv. Sub-file “D” - Statements of prosecution witnesses
 The investigation officer will interrogate all persons with information about the crime being
investigated.
 The proposed witnesses will then record statements at the police station which will form this file.
v. Sub-file “E” - charge and cautionary statements of accused persons & statement under inquiry &
statement of the accused (s).
 The investigation officer will interrogate the suspect on the alleged offence any statement made will
be kept in this sub-file.
 Section 25a Evidence Act - any confession or admission of fact shall not be proved unless made
in court.
 Criminal law (amendment) act, 2007 section 25a was amended to include statements made by the
suspect at the police station in the presence of a representative.
vi. Sub-file “F” - investigation diary
 The investigation officer conducting investigations will interview witnesses and suspects.
 He will visit the crime scene, hospitals, mortuary, offices, prisons etc.
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  The times, dates and places should be clearly indicated and recorded.
vii. Sub-file “G” copy of charge sheet and related documents
 Upon completion of investigations, the investigation officer will prepare the charges in a charge sheet
and place in this file.
 If a charge sheet is amended during trial, it will be placed in this file.
viii. Sub-file “H”
 accused previous records
 list of exhibits
 list of witnesses
ix. Sub-file “I” covering report
 This is a report by the officer in charge of investigations.
 Gives the chronology of events and conduct of investigations culminating to the decision to charge the
suspect and arraign him in court with specific charges.
 The findings of the IO will be cross referenced with relevant witness statement and exhibit.
x. Sub-file “J” - minute sheet
 Contains correspondence between police personnel with regard to the case.

B. Advocate’s file
 Instruction note: contains a note of the exact action required of the advocate, advocate’s name, name and
address of the person giving instructions and retainer.
 Client attendance form: contains date of attendance, length of attendance, file reference, name of client,
case number and parties, name of advocate in attendance
 Charge sheet: - after taking the plea (not guilty), the advocate will be given a copy of the charge sheet.
 Bail/bond documents: has the necessary copy of documents necessary for the admittance of the client to
bail.
 Legal opinion/brief: preliminary legal opinion to client on the strengths and weaknesses of the case.
 Witness statements and documentary exhibits
 Legal research: cases to be relied on.
 Case concept/battle plan; copies of reports such as post mortem, ballistic report, finger print, expert
report, handwriting expert and all other expert reports should be on the defence files.
 Defence witness statements

C. Court file
i. Top of the physical file contains
 Court of arms
 Court names/ place
 Case number/ year
 Names of suspect(s)
 Name of the case/ the charge (s)

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 ii. The court clerk indicates the following inside the 1st page of the file
 The date
 Names and rank of judicial officer to conduct trial
 Names and rank of prosecutor.
 Names of court clerk
iii. When the court proceedings start, the judicial officer will record the following
 Names of counsel/advocate (s)
 Names of interpreter (if present)
 Plea taking proceedings
The charge(s) are read from the charge-sheet to the suspect in a language he/she understands
The suspect(s) reply recorded as clearly and directly as possible.
Any applications made by the advocate/ suspect.
The prosecutor’s reply to the applications.
The orders of the courts.

iv. Documents found in the court file

Charge sheet
Remand warrant
Bail/bond documents
Particulars of surety documents
Release order of the suspect
court exhibit list
Court list of witnesses list
High court orders relating to the case

Hearing proceedings
A suspect is arraigned in court and takes plea – the plea taking process is recorded.
All that is said by each witness during the proceedings are recorded.
All pages of the proceedings are marked serially except the court rulings.
 Rulings and judgments are marked separately.
During trial the exhibits are marked and produced but are kept separately from the court file.

TOPIC FOUR
COMPLAINT AND CHARGE
 Most criminal proceedings commence by way of indictment or charge.
 The formal document is referred to as
Charge in the subordinate courts.
information refers to the form of charge in the high court
The CPC refers to these as charge and information.
What is a charge?

Is a formal written accusation or complaint against the accused for an offence known in law.
Drawn by a magistrate or a police officer.
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 Signed as required by law.
Purpose of the formal charge

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