THE TRIAL PROCESS
TRIAL
• In law, a trial is when parties to a dispute
come together to present information (in the
form of evidence) in a tribunal, a formal
setting with the authority to adjudicate claims
or disputes
RIGHT TO A PUBLIC TRIAL AND LIMITS
• ONCE ACCUSED PLEADS NOT GUILTY TO
CHARGE, PROSECUTION MUST PROVE
CHARGE BEYOND REASONABLE DOUBT;
• AN ACCUSED PERSON IS ALWAYS PRESUMED
TO BE INNOCENT UNTIL PROVEN GUILTY AND
THE BURDEN OF PROOF NEVER SHIFTS FROM
THE PROSECUTION
• Art 50(2) (d) OF CONSTITUTION, TRIAL HAS TO
BE IN PUBLIC
• PUBLIC MAY GENERALLY HAVE ACCESS TO
TRIAL PROCESS
• COURT RETAINS POWER TO EXCLUDE FROM
PROCEEDINGS UNDESIRABLE PERSONS;
• OTHER THAN PARTIES &THEIR LEGAL
REPRESENTATIVES IF PUBLICITY WOULD
PREJUDICE INTERESTS OF JUSTICE, MORALITY,
WELFARE OF MINORS, PROTECTION OF
PRIVATE LIVES OF PARTIES TO PROCEEDINGS
• THE ACCUSED PERSON HAS THE RIGHT TO BE
AVAILED THE PROSECUTION EVIDENCE IN
ADVANCE ANCHORED IN ARTICLE 50(2)(C)) OF
THE CONSTITUTION. ACCUSED HAS THE RIGHT
TRIAL PROCESS
• TO HAVE REASONABLE ACCESS TO THAT
EVIDENCE. IN GEORGE NGODHE JUMA & 2
OTHERS V AG CR APPLIC. NO 345 OF 2001.
(2003) EKLR
• THERE IS HOWEVER NO CORRESPONDING
RIGHT FOR THE ACCUSED TO PRESENT IN
ADVANCE HIS EVIDENCE TO THE
PROSECUTION. CHOMONDELEY V R C OF A
NO. 116 OF 2007, (2008) EKLR
• RIGHT TO PROSECUTION EVIDENCE IS NOT
ABSOLUTE AND CAN BE QUALIFIED ON EG.
TRIAL PROCESS
• ADJOURNMENTS
• S. 205(2) CPC. A COURT MAY, BEFORE OR
DURING THE HEARING OF THE CASE,
ADJOURN THE HEARING TO A CERTAIN PLACE
AND TIME TO BE THEN APPOINTED AND
STATED IN THE PRESENCE AND THE HEARING
OF THE PARTIES OR THEIR RESPECTIVE
ADVOCATES. NGUI V R (1985) KLR 268 THE
COURT STATED OBITER THAT IT WAS
SCANDALOUS FOR ADJOURNMENTS TO BE
GRANTED ROUTINELY
TRIAL PROCESS
OR IF SUCH EXCLUSION IS IN THE INTERESTS
OF NATIONAL SECURITY,PUBLIC SAFETY OR
ORDER- ART 50(8) CONST &77(1)CPC
• PROSECUTIONS FOR RAPE, ATTEMPTED
RAPE,DEFILEMENT &INCEST MUST BE HELD IN
PRIVATE;
• PUBLICATION OF PROCEEDINGS CALCULATED
TO IDENTIFY VICTIM
TRIAL PROCESS
IS PUNISHABLE-S77(2) CPC
COMPLAINANT
• IF ON DATE OF TRIAL ACCUSED APPEARS BUT
COMPLAINANT FAILS TO SHOW UP, COURT
MAY ACQUIT ACCUSED –S.202 CPC
• R VS MWAURA IKEGO (1979) COMPLAINANT
INCLUDES PROSECUTOR
• RUHI VS R (1985) KLR 373 WAS HELD THAT
UNDER S.208(1) COMPLAINANT
TRIAL PROCESS
• INCLUDES BOTH PROSECUTOR AS WELL AS PERSON
SO DESCRIBED IN THE PARTICULARS OF THE CHARGE
• "complainant" means the Republic or the alleged
victim of a sexual offence and in the case of a child or
a person with mental disabilities, includes a person
who lodges a complaint on behalf of the alleged
victim where the victim is unable or inhibited from
lodging and following up a complaint of sexual abuse;
SEQUENCE OF CALLING WITNESSES
• COMPLAINANT AND HIS WITNESSES ARE
HEARD FIRST
• ITS ADVISABLE TO REQUEST
DEFENCE&PROSECUTION WITNESSES WHO
ARE YET TO TESTIFY TO STAY OUT OF COURT
WHILST WITNESS IS TESTIFYING
• COURT CANNOT REJECT EVIDENCE OF
SEQUENCE OF CALLING WITNESSES
WITNESS BECAUSE HE SAT IN COURT WHEN
OTHERS WERE TESTIFYING
• EVIDENCE OF SUCH WITNESS SHOULD BE
TAKEN
• FACT OF HIS PRESENCE ONLY GOES TO
WEIGHT TO BE ATTACHED TO SUCH EVIDENCE-
WAITHAKA V R (1972)EA 184
OATHS
• EVERY WITNESS HAS TO GIVE EVIDENCE UPON
OATH OR AFFIRMATION-S.151 CPC SS.15&17
OATHS &STATUTORY DECLARATIONS ACT
• WITNESS TO BE SWORN ON A HOLY BOOK
• OATH TAKES FOLLOWING FORMAT
OATHS
• ‘I…DO SWEAR THAT THE EVIDENCE I SHALL
GIVE IN THIS COURT, TOUCHING THE MATTER
IN ISSUE SHALL BE THE TRUTH, THE WHOLE
TRUTH AND NOTHING BUT THE TRUTH. SO
HELP ME GOD’
• FACT THAT PERSON TAKING OATH HAD AT THE
TIME OF OATHING
OATHS
NO RELIGIOUS BELIEF SHALL NOT AFFECT
VALIDITY OF THE OATH.
AFFIRMATIONS
• WITNESS MAY DECLINE TO BE SWORN FOR
LACK OF RELIGIOUS BELIEF/TAKING OATH IS
CONTRARY TO HIS RELIGIOUS BELIEF
• WITNESS TO BE ALLOWED TO MAKE A
SOLEMN AFFIRMATION INSTEAD OF TAKING
AN OATH
AFFIRMATIONS
• THE LEGAL EFFECT OF THE AFFIRMATION IS
THE SAME AS AN OATH-S.15
OATHS&STATUTORY DECLARATIONS ACT)
• WORDS OF IMPRECATION OR CALLING TO
WITNESS ARE AVOIDED
• AN AFFIRMATION TAKES THE FOLLOWING
FORMAT
AFFIRMATION
• “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.”
RECORDING EVIDENCE
• EACH WITNESS’S EVIDENCE TO BE TAKEN
DOWN IN WRITING OR ON A TYPEWRITER IN
THE LANGUAGE OF THE COURT
• TO BE TAKEN IN THE PRESENCE OF THE
MAGISTRATE UNDER HIS PERSONAL
DIRECTION AND SUPERVISION OR BY THE
MAGISTRATE
RECORDING EVIDENCE
• MAGISTRATE HAS TO SIGN RECORDED
EVIDENCE FOR IT TO FORM PART OF THE
RECORD
• EVIDENCE IS TO BE RECORDED IN NARRATIVE
FORM THOUGH THE MAGISTRATE MAY
RECORD ANY PARTICULAR EVIDENCE IN ANY
MODE AND THE ANSWER THERETO S.197(1)
(b)
RECORDING EVIDENCE
• COURT MAY ALSO RECORD REMARKS IT
DEEMS MATERIAL REGARDING THE
DEMEANOUR OF THE WITNESS UNDER
EXAMINATION-S.199 CPC
• IN BYAMUNGU V R (1951)18 EACA 233 AND
MUSAU V R(1980) KLR 54 WAS HELD THAT AN
IMPRESSION AS TO DEMEANOUR OF WITNESS
RECORDING OF EVIDENCE
• OUGHT NOT TO BE MADE WITHOUT TESTING
IT AGAINST THE WHOLE EVIDENCE IN
QUESTION
• A WITNESS HAS A RIGHT TO HAVE RECORDED
EVIDENCE READ TO HIM IF HE REQUESTS
• IF EVIDENCE IS TENDERED IN LANGUAGE THE
ACCUSED DOES NOT
RECORDING EVIDENCE
UNDERSTAND, IT WILL BE INTERPRETED TO A
LANGUAGE THAT HE UNDERSTANDS
• IF EVIDENCE IS IN LANGUAGE OTHER THAN
ENGLISH &ACCUSED’S ADVOCATE DOES NOT
UNDERSTAND THAT LANGUAGE, IT SHALL BE
INTERPRETED TO THE ADVOCATE IN ENGLISH
WITNESSES
• PROSECUTOR DETERMINES ORDER IN WHICH
PROSECUTION WITNESSES ARE TO APPEAR
BEFORE COURT;
• ROY RICHARD ELIMA V.R [Link] 67/2002
MOMBASA-IT IS DESIRABLE FOR
COMPLAINANT/KEY WITNESS TO GIVE
WITNESSES
EVIDENCE FIRST &LAY BASIS FOR THE
PROSECUTION CASE
• DECISION TO CALL WITNESS IS A MATTER
WITHIN THE DISCRETION OF THE
PROSECUTOR
• COURT SHOULD NOT INTERFERE WITH THAT
DISCRETION UNLESS IT IS SHOWN
PROSECUTOR IS UNDER INFLUENCE OF ILL
MOTIVE
WITNESSES
• WHERE PARTY FAILS TO CALL A MATERIAL
WITNESS WITHOUT ANY APPARENT REASON-
COURT IS ENTITLED TO PRESUME THAT THE
EVIDENCE WOULD HAVE BEEN ADVERSE
• MWANGI V R (1984)KLR 595,NGUKU V
R(1985)KLR 412
EXAMINATION IN CHIEF
• OBJECT OF EXAMINATION IN CHIEF IS TO
OBTAIN TESTIMONY IN SUPPORT OF THE
VERSION OF THE FACTS IN ISSUE OR RELEVANT
TO THE ISSUE
• LEADING QUESTIONS (SUGGEST DESIRED
ANSWER OR ASSUME EXISTENCE OF
DISPUTED FACTS WHICH WITNESS HAS BEEN
CALLED TO TESTIFY ABOUT) ARE NOT
ALLOWED
EXAMINATION IN CHIEF
• THEY ARE ONLY PERMISSIBLE IN THE FORMAL
INTRODUCTORY PART OF THE TESTIMONY
EXAMINATION IN CHIEF
• FRAME OPEN QUESTIONS USING WHO, WHAT,
WHEN, WHERE, WHY, HOW,
DESCRIBE,EXPLAIN AND TELL US
• DO NOT USE CLOSED “YES” OR “NO”
QUESTIONS BEGINNING WITH ARE, DID, CAN,
COULD, WOULD.
EXAMINATION IN CHIEF
• TELL A STORY THROUGH THE WITNESS;
• MAINTAIN CONTROL OF THE ORDER AND
ORGANIZATION OF EXAMINATION;
• DEVELOP CREDIBILITY OF WITNESS BY ASKING
RELEVANT BACKGROUND QUESTIONS;
• USE APPROPRIATE COMMUNICATION
TECHNIQUES IE EYE-CONTACT, VOICE
PROJECTION, FACIAL EXPRESSIONS, POSTURE
EXAMINATION IN CHIEF
EXAMINATION IN CHIEF
• ASK SHORT, SIMPLE UNDERSTANDABLE
QUESTIONS;
• AVOID JARGON;
• LISTEN TO THE WITNESS AND ASK FOLLOW UP
QUESTION;
EXAMINATION IN CHIEF
CROSS EXAMINATION
• AFTER EVIDENCE IN CHIEF, ACCUSED IS
ENTITLED TO CROSS EXAMINE
• S.208(3) CPC REQUIRES COURT TO ASK
ACCUSED WHO IS NOT REPRESENTED
WHETHER HE WISHES TO PUT ANY
QUESTIONS TO THE WITNESS.
• THE COURT HAS TO RECORD THE ANSWER
CROSS EXAMINATION
• LEADING QUESTIONS ARE USED IN CROSS
EXAMINATION
• CROSS-EXAMINATION IS TO ELICIT
INFORMATION CONCERNING FACTS IN
ISSUE/RELEVANT TO THE ISSUE THAT IS
FAVOURABLE TO THE PARTY ON WHOSE
BEHALF CROSS EXAMINATION IS DONE
CROSS EXAMINATION
• IT ALSO CASTS DOUBT UPON ACCURACY OF
THE EVIDENCE IN CHIEF GIVEN AGAINST A
PARTY
• RIGHT TO CROSS EXAMINE IS A
CONSTITUTIONAL RIGHT-ART.50(2)(K)
• ABROGATION OF THIS RIGHT VITIATES
RESULTANT CONVICTION (EZEKIEL NYAGA&
3OTHERS V R CA CRIM APP NO.9/1995-
NAKURU
CROSS EXAMINATION
• LEADING QUESTIONS SUGGEST AN ANSWER;
• MAKE A FACTUAL STATEMENT/ASSERTION &
ASK WITNESS TO CONFIRM
• THE QUESTIONER EFFECTIVELY “TESTIFIES”
• ASK ONE NEW FACT PER QUESTION
• DO NOT ARGUE WITH WITNESS
• DO NOT “PUT IT TO” WITNESS
CROSS EXAMINATION
• ASK ENOUGH QUESTIONS TO DEVELOP THE
POINT;
• ORGANIZE THE X-X IN CHAPTERS;
• LISTEN TO THE ANSWER AND FOLLOW UP
OPPORTUNITIES;
RE-EXAMINATION
• RE-EXAMINATION TO BE CONFINED TO
MATTERS THAT AROSE IN CROSS
EXAMINATION
• NEW MATTERS CAN ONLY BE INTRODUCED
WITH THE LEAVE OF COURT
PRIMA FACIE CASE
If it appears to the court that a case is made
out against the accused person sufficiently to
require him to make a defence then it
amounts to a prima facie case;
Bhatt v Republic (1957) EA 332, where the
court defined a prima facie case as one where
a reasonable court directing its mind to the
law and evidence would convict if no
explanation were offered by the defence.
RULING
• Where the court is of the opinion that the
prosecution has failed to establish a prima
face case; then a detailed reasoned ruling will
be written leading to an acquittal under
Section 210
PRIMA FACIE CASE
• Once a ruling that a prima facie case has been
established is entered; S 211 of the CPC
provides;
• That the court shall again explain the
substance of the charge to the accused. This
is to prepare the accused person or to remind
him of the charge.
DEFENCE
• Shall inform him that he has a right to give
evidence on oath from the witness box, in
which case he shall be liable to cross
examination.
• Or that he can make an un-sworn statement in
which case he shall not be liable to cross-
examination.
DEFENCE
• even though it is not mentioned in S 211 the
accused shall be informed of his right to
remain silent see Art 50(2)(i) section 306 (3)
dealing with trial in the High Court which
makes reference to this as an option that the
accused may elect.
• It is now standard practice in criminal courts
that the court must explain this option to the
accused.
DEFENCE
Whichever option the accused person
chooses, he shall be informed of his right to
call witnesses. Whether he chooses to give a
sworn statement, unsworn etc he must be
given the option
DEFENCE
Section 211(2) enables the court to compel
attendance of witnesses on behalf of the
accused where there is need and to grant
adjournment to enable such witnesses to
attend court.
DEFENCE
• The accused shall commence his defence by
calling his witnesses referred to as Defence
Witnesses (DW).
• The practice is for the accused to testify,
where he has elected to give evidence
whether sworn or unsworn, first – see R v
Malakwen arap Mutel
DEFENCE
• ensures that the accused person who must be
present throughout the trial does not have the
advantage of listening to his witnesses and
thereby probably tailoring his own evidence to
corroborate such witness testimonies;
DEFENCE
• The accused shall then call witnesses who
shall be sworn/affirmed and shall give their
evidence in chief, be cross examined by the
prosecutor and re examined by the defence
and finally they may be examined by the
court.
DEFENCE
DEFENCE
• After calling all the witnesses the defence shall
signify to the court the close of their case;
• After the close of the defence case the accused or
his advocate addresses the court; with the
prosecutor having an automatic right of reply where
the accused has adduced evidence (calling witnesses
other than himself)
DEFENCE
• Where only the accused has testified the right
of reply is only exercisable by the prosecution
where the DPP or the Solicitor General
appears in person in court.
• After listening to the arguments from both
sides the court will proceed to write the
judgment
• It will convict take in mitigation and sentence
or acquit;
JUDGMENT
• If court is convinced that the prosecution has
not discharged its burden of proof beyond
reasonable doubt, it will acquit the accused-
s.215
• If court is satisfied that the prosecution has
proved its case beyond reasonable doubt,
then an order of conviction shall be
entered;s.215
JUDGMENT
MITIGATION
• A mitigating factor, in law, is any information
or evidence presented to the court regarding
the convict or the circumstances of the crime
that might result in a lesser sentence;
MITIGATION
MITIGATION
• The court may, before passing sentence or
making an order against an accused person
under section 215, receive such evidence as it
thinks fit in order to inform itself as to the
sentence or order properly to be passed or
made. S.216/s.329
MITIGATION
• The convict will put forth such reasons as he
deems necessary to convince the court to
mete out lenient punishment;
MITIGATION
• C.A. in Samson Kirumbi M’ikamati Vs R
(2006)Eklr court held that a trial court is
supposed to consider all mitigating factors as
much as the effect of the crime on the victim
and the family.
SENTENCING
• a sentence forms the final act of a Judge-ruled
process, and also the symbolic principal act
connected to his function.
• The sentence generally involves a decree of
imprisonment, a fine and/or other
punishments against an accused convicted of
a crime.
SENTENCING
SENTENCING
[Link]
• There is a belief that punishment for crime can
deter people from offending. There are two
forms:
· Specific deterrence is concerned with
punishing an individual offender in the
expectation that he will not offend again.
SENTENCING
• General deterrence is related to the possibility
that people in general will be deterred from
committing crime by the threat of punishment
if they are caught.
• How this aim is effected
• · Prison sentence/long prison sentence
· Heavy fine
SENTENCING
• 2. REHABILITATION
• Rehabilitation involves offering an offender help to
overcome problems which he faces, thereby
attempting to make it easier for him or her to avoid
offending in future.
• This can include various types of assistance provided
in prison or in the course of a probation order which
are intended to help the offender to improve his
social skills, his employment prospects;
SENTENCING
• Rehabilitative ideals can be seen in the official terms of reference of some
of those dealing with offenders after conviction:
• Probation officers derive their mandate from Probation of Offenders Act
Cap 64 S'5.(1) A probation order shall have effect for such period, of not
less than six months and of not more than three years, from the date of
the order as may be specified therein, and shall require the probationer to
submit during that period to the supervision of a probation officer
appointed for
SENTENCING
or assigned to the district or area in which the
probationer will reside after the making of the
order, and shall contain such provision as the
court considers necessary for securing the
supervision of the offender, and such
additional conditions as to residence and
other matters as the court, having regard to
the circumstances of the case,
SENTENCING
considers necessary for securing the good
conduct of the offender or for preventing a
repetition of the same offence or the
commission of other offences.
SENTENCING
• Prisons Act Cap. 90 is described as An Act of
Parliament to inter alia to provide for youth
corrective training centers, ..to provide for the
organization, discipline, powers and duties of prison
officers; and for matters incidental thereto and
connected therewith
• How this aim is effected
• · Individualised sentence
· Community penalty, ie a Community Service Order,
Probation Order or Combination Order.
SENTENCING
3. PROTECTION OF THE PUBLIC
• Protection of the public is one of the major
justifications claimed for punishment.
• imprisonment leads to the incapacitation of
offenders so that they are prevented (at least
temporarily) from offending against the public at
large.
• How this aim is effected
• · Death penalty for capital offenders
· Long prison sentence
SENTENCING
4. RETRIBUTION
• Retribution rests on the notion that if a person
has knowingly done wrong, he or she deserves
to be punished.
• The Government's aim, repeated several
times, was to ensure that convicted criminals
receive their 'just desserts'.
• How this aim is effected
• · Stiff sentence
SENTENCING
• 5. SYMBOLIC DENUNCIATION
• One justification for imposing penalties is that they
denounce particular types of behaviour, and reaffirm
the validity of moral attitudes to that behaviour.
• punishment can be said to denounce criminal
behaviour and express public repugnance of it.
• How this aim is effected
• · Sentence reflecting the blameworthiness of the
offence
MANDATORY SENTENCES
• the mandatory character of some sentences
deprive sentencing judges
• of the power to take appropriate account of
exceptional circumstances and the
• individual characteristics of offenders.
MANDATORY SENTENCE
• Godfrey Ngotho Mutiso v Republic [2010] eKLR
• The two grounds of appeal were couched as
follows:
• “1. The imposition of a mandatory death sentence
upon the appellant was arbitrary and
unconstitutional and the execution of the same in
the instant case would amount to: -
• a) An inhuman and degrading punishment in
breach of Section 74 (1) of the Constitution of the
Republic of Kenya.
MANDATORY SENTENCE
• b) An arbitrary deprivation of life in breach of
Section 71 (1) and 70 (a) of the Constitution of the
Republic of [Link] Ngotho Mutiso v
Republic [2010] eKLR
•
• we are persuaded, and now so hold, that section
204 of the Penal Code which provides for a
mandatory death sentence is antithetical to the
Constitutional provisions on protection against
inhuman or degrading punishment or treatment
MANDATORY SENTENCE
• a) An inhuman and degrading punishment in
breach of Section 74 (1) of the Constitution of
the Republic of Kenya.
• b) An arbitrary deprivation of life in breach of
Section 71 (1) and 70 (a) of the Constitution of
the Republic of Kenya.
•
MANDATORY SENTENCE
• we are persuaded, and now so hold, that
section 204 of the Penal Code which provides
for a mandatory death sentence is antithetical
to the Constitutional provisions on protection
against inhuman or degrading punishment or
treatment and fair trial. We note that while
the Constitution itself recongises the death
penalty as being lawful, it does not say
anywhere that when a conviction for murder
MANDATORY SENTENCE
• is recorded, only the death sentence shall be
imposed. We declare that section 204 shall, to
the extent that it provides that the death
penalty is the only sentence in respect of the
crime of murder is inconsistent with the letter
and spirit of the constitution, which as we
have said, makes no such mandatory
provision.
• We have confined this judgment to sentences
in respect of murder cases,
MANDATORY SENTENCE
• because that was what was before us and
what the Attorney General conceded to. But
we doubt if different arguments could be
raised in respect of other capital offences such
as treason under section 40 (3), robbery with
violence under section 296 (2) and attempted
MANDATORY SENTENCE
• robbery with violence under section 297 (2) of
the Penal Code. Without making conclusive
determination on those other sections, the
arguments we have set out in respect of
section 203 as read with section 204 of the
Penal
TERMINATION OF CASES
• ARTICLE 159 OF THE CONSTITUTION. ART.
159(2) REFERS.
• THIS CAN BE ACHIEVED BY A NOLLE PROSEQUI
UNDER S.82 (1) OF THE CPC;
• TERMINATION CAN ALSO BE ACHIEVED BY
WAY OF WITHDRAWAL UNDER S.87(a) OF THE
CPC;
• TERMINATION CAN ALSO BE ACHIEVED UNDER
S.204 OF THE CPC.
• WHEN THE COMPLAINANT FAILS TO APPEAR
TERMINATION OF CASES
• COURT WITHOUT REASONABLE CAUSE, THE
COURT MAY ACQUIT THE ACCUSED PERSON
UNDER S. 202 CPC
• RECONCILIATION UNDER S. 176 OF THE CPC
• ABATEMENT OF CASE WHEN THE ACCUSED
PERSON DIES S. 87(A) CPC
TERMINATION OF CASES
• NOLLE PROSEQUI
• is a Latin legal phrase meaning "be unwilling
to pursue" a Latin construction that amounts
to "please do not prosecute".
• It is the term used in many common law
criminal jurisdictions to describe a prosecutor
's application to discontinue criminal charges
before trial, or up until, but before verdict.
TERMINATION OF CASES
• Section 82 (1) of the Criminal Procedure Code provides as
follows:-
• “In any criminal case and at any stage thereof before verdict
or judgment, as the case may be, the Director of Public
Prosecutions may enter a nolle prosequi, either by stating in
court or by informing the court in writing that the Republic
intends that the proceedings shall not continue, and
thereupon the accused shall be at once discharged in respect
of the charge for which the nolle prosequi is entered, and if he
has been committed to prison shall be released, or if on bail
his recognizances shall be discharged; but discharge of an
accused person shall not operate as a bar to subsequent
proceedings against him on account of the same facts..”
TERMINATION
• ART 157(6)(C) SUBJECT TO CLAUSE (7) AND
(8), DISCONTINUE AT ANY STAGE BEFORE
JUDGEMENT IS DELIVERED ANY CRIMINAL
PROCEEDINGS INSTITUTED BY THE DPP OR
TAKEN OVER BY THE DPP UNDER PARA(b)
• ART.157(7)-IF THE DISCONTINUANCE OF ANY
PROCEEDINGS UNDER CLAUSE (6)(c) TAKES
PLACE AFTER THE CLOSE OF THE
PROSECUTION’S CASE, THE DEFENDANT SHALL
BE ACQUITTED.
TERMINATION
• ART.157(8) THE DPP MAY NOT DISCONTINUE A
PROSECUTION WITHOUT THE PERMISSION OF
THE COURT.
TERMINATION OF CASES
• S.82 OF CPC ALLOWS DPP TO DISCONTINUE AT
ANY STAGE PROCEEDINGS;
• NOLLE IS ENTERED BY THE DPP OR HIS
REPRESENTATIVE;
• BY PRESENTATION OF A WRITTEN ORDER;
• IN GREGORY &ANOTHER V R THRO’
NOTTINGHAM & 2 OTHERS HC. MISC. CIV
APPL. NO.996 OF 2002
TERMINATION
• “IN EXERCISE OF THE POWERS CONFERRED
ON THE AG BY SECTION 82(1) OF THE
CRIMINAL PROCEDURE CODE CAP 75 LAWS OF
KENYA DELEGATED TO ME BY LEGAL NOTICE
NUMBER 331 OF 1996, I HEREBY ENTER NOLLE
PROSEQUI AND INFORM THIS HOUNOURABLE
COURT THAT THE REPUBLIC INTENDS THAT
PROCEEDINGS AGAINST THE ABOVE NAMED
ACCUSED PERSONS WHO ARE CHARGED WITH
THE
TERMINATION OF CASES
• OFFENCES OF ATTEMPTING TO OBTAIN BY
FALSE PRETENCES CONTRARY TO SECTION
313, FRAUDULENT FALSE ACCOUNTING
CONTRARY TO SECTION 328 (b)(ii) AND
MAKING A DOCUMENT WITHOUT AUTHORITY
CONTRARY TO SECTION 357 ALL OF THE
PENAL CODE SHALL NOT CONTINUE”
• SIGNED BY MRS U.P. KIDULLAH DPP
TERMINATION OF CASES
• IN MWAU VS R (1985) KLR 748 THE CA SAID
POWER TO ENTER A NOLLE IS EXCLUSIVELY
VESTED IN AG BUT COULD DELEGATE THOSE
POWERS;
• ART. 157(9) THE POWERS OF THE DPP MAY BE
EXERCISED IN PERSON OR BY OFFICERS
SUBORDINATE & ACTING IN ACCORDANCE
WITH GENERAL OR SPECIAL INSTRUCTIONS.
TERMINATION OF CASES
• AFTER PRESENTATION OF A NOLLE PROSEQUI
CHARGES AGAINST ACCUSED ARE
DISCONTINUED;
• ACCUSED IS DISCHARGED/ ACQUITTED;
• A NOLLE PROSEQUI MAY BE ENTERED WHEN
ACCUSED IS NOT IN COURT;
TERMINATION OF CASES
• In the case of REPUBLIC THROUGH JOSEPH
NAMU MBUGUA & OTHERS VS. WILLIAM OLE
NTIMAMA, [[Link] CRIMINAL REVISION
NO. 23 OF 1995] at page 14 of the judgment
Aluoch and Amin JJ observed: -
“We find that the learned chief magistrate
duly signed the summons as provided in
section 89 of the Criminal Procedure Code.
The complaint was made in writing.
TERMINATION OF CASES
It was duly signed by the Chief Magistrate.
There were adequate proceedings before the
Chief Magistrate which the court had signed
and duly authorized. These were proceedings
instituted in terms of section 89(1) of the
Criminal Procedure Code…”
TERMINATION OF CASES
• In the case of RAILA ODINGA VS. PROF.
SAITOTI & OTHERS [MISC. CRIMINAL
REVISION APPLICATION NO. 31 OF 1995] at
page 132 of the Judgment, Pall & Juma JJ
held: -
“Plain and ordinary meaning of Section 89 of
the Criminal Procedure Code is that as
TERMINATION OF CASES
soon as a complaint is made to a magistrate
having jurisdiction of the wrong doing of a
person or persons criminal proceedings are
instituted and come into existence. Once
criminal proceedings are instituted the
Attorney General is empowered under
Section 26 of the Constitution to take over
TERMINATION OF CASES
either straight away or at any subsequent
stage of the existence of those criminal
procedures before the verdict or judgment is
given.”
TERMINATION OF CASES
• In Hc. Misc Civ Suit 720 of 2005 OTIENO
CLIFFORD RICHARD Vs R COURT HELD THAT:-
“The proceedings are deemed to have
commenced once an Applicant lodges his
application for permission under Section 88(1)
of the Criminal Procedure Code before a
subordinate court...
TERMINATION OF CASES
• The Plaintiff’s argument before this court that
there were no proceedings for the Attorney
General to take over and that therefore the
entry of the nolle prosequi at the stage it was
presented to court was premature lacks in
merit... we find there was judicial action
undertaken by the court on receipt of the
Plaintiff’s Notice of Motion and written
complaint, by causing a file to
TERMINATION OF CASES
• ...be opened and setting the application
before the trial Magistrate who proceeded to
hear the Plaintiff’s advocate and the Director
of Public Prosecutions. We find and hold that
that lodging of the application in Court and
the placing of the matter before a magistrate
for consideration resulted in proceedings. We
find and hold that proceedings did exist at the
time the nolle prosequi was entered before
TERMINATION OF CASES
...the trial magistrate by the Attorney General.
We shall go further and find that the Attorney
General had power not only to enter into the
proceedings on the first day that the Plaintiff
appeared before the court, but could as well
have filed the nolle prosequi or could have
opted to appear and enter it in court even
before the Plaintiff’s Advocate was allowed to
address, with the resultant effect of effectively
terminating the proceedings”.
TERMINATION OF CASES
• R VS MALEK ABDULLA (1979) KLR 207 HELD
THAT UNDER S. 87(a) COURT CONSENT IS
NOT NECESSARY FOR WITHDRAWAL WHERE
DPP GIVES INSTRUCTIONS;
• DPP’S INSTRUCTIONS MUST BE WRITTEN;
TERMINATION OF CASES
• UNDER S.204 CPC COMPLAINANT HAS THE
RIGHT TO WITHDRAW COMPLAINT BEFORE
COURT MAKES FINAL ORDER
• RELEVANT NEW LEGISLATION
• THE VICTIM PROTECTION ACT
• PERSONS DEPRIVED OF LIBERTY ACT
