Criminal Proc. - P. L. O. Lumumba
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UNDER REVISION
A HANDBOOK ON CRIMINAL PROCEDURE IN KENYA
P. L. O. LUMUMBA Ph. D
Page 1 of 382
Publication Financed by: University of Nairobi Enterprises and Services (UNES) Ltd P.O. Box 30197 Nairobi. Tel: 714240/7114144 A P.L.O Lumumba Publication © P.L.O Lumumba 1998 First Published in 1998 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior permission of the Author. Computer Typesetting by: Dypac Information Technology Consultants P.O. Box 49482 Nairobi Tel: 334092 Publishing Consultancy Printing by: Business Trends Limited P.O. Box 74327 Nairobi Tel: 554397 ISBN 9966-939-00-8
Page 2 of 382
CONTENTS Foreword .........................................................................................……
xii
Acknowledgement ..................................................................................
xiii
Introduction ............................................................................................ xiv Dedication ..................................................................................……… xviii Table of Statutes ........................................................................................
xix
Acronyms .................................................................................................
xx
Table of Cases ...........................................................................................
xxi
CHAPTER I: THE NATURE OF CRIMINAL PROSECUTIONS 1
A. Introduction ..................................................................................
1
B. The Attorney - General's Constitutional Position ......................
2
C. Private Prosecution ........................................................................
4
D. Limitation of Time ......................................................................
8
CHAPTER II: CONTROL OF PROSECUTIONS .....................
12
A. Introduction.....................................................................................
12
B. Nolle Prosequi.................................................................................
12
C. Withdrawal ......................................................................................
15
CHAPTER III: ARREST ...........................................................…….
16
A. Introduction ....................................................................................
16
B. Arrest Without Warrant .................................................................
17
i) Arrest by a Police Officer .....................................................……….
17
ii) Arrest by Magistrate ..........................................................……….
19
iii) Arrest by a Private Person …................................................……..
20
Page 3 of 382
C. Arrest with Warrant ........................................................................
20
D. Others ..............................................................................................
22
E. Conclusion .....................................................................................
23
CHAPTER IV: SEARCHES AND SEARCH WARRANTS ……… 24 A. Introduction …………………………………………………….
24
B. Searches with a search Warrants ……………………………….
24
C. Searches without a search Warrant …………………………….
27
D. Conclusion ………………………………………………………
29
CHAPTER V: Bail ………………………………………. ……. A. Introduction……………………………………………………..
31
B. Bail in Kenya …………………………………………………
32
C. Constitution of Kenya (Amendment)Act, No. 20 of 1987……
37
D. The abolition of the Discretion of the High Court …….. …….
38
E. Pre-Trial Bail …………………………………………………
40
F. Bail pending Appeal ………………………………….………
46
G. Sureties ………………………………………………………
53
H. Bail Bond …………………………………………………….
56
I. Renewal of Bail Application …………………………... …….
58
J. Bail as viewed by the High Courts ……………………………
60
K. Variance between Law and practice …………………………
62
L. Suggested Reforms ………………………………………….
63
M. The law of bail: Further thoughts on reform..……………….
64
Page 4 of 382
CHAPTER VI: CHARGES AND INFORMATION ……….
70
A.
Introduction ……………………………………………..
70
B.
Charges ………………………………………………….
70
C.
Effect of Citing Wrong or Non-existent Sections ……….
71
D.
Particulars of the Offence Charged ……………………...
74
E.
Lack of particulars and wrong ingredients ………………
76
F.
General form …………………………………………….
79
G.
Joinder of Counts ………………………………………..
81
H.
Joinder of persons ………………………………………..
84
I.
Duplicity …………………………………………………
87
J.
Alternative Charges ………………………………………
92
K.
Amendment of Charges …………………………………..
93
L.
Amendment after conviction………………………………
95
M.
Quashing of information …………………………………
95
N.
Conclusion …………………………………………………
96
CHAPTER VII: PLEAS ……………………………………
98
A.
Introduction……………………………………………….
98
B.
Plea Taking in the subordinate Courts…………………...
99
C.
Recording of pleas……………………………………….
99
D.
Plea of Autrefois Acquit, Autrefois Convict and pardon.
102
E.
Change of plea and the Functus officio Rule……………
102
F.
Plea bargaining……………………………………………
104
Page 5 of 382
CHAPTER VIII: TRIAL PROCEDURE IN THE SUBORDINATE COURTS……..
105
A.
Introduction……………………………………………… 105
B.
The Structure and Jurisdiction of Criminal Courts……… 107
C.
Trial procedure:………………………………………….. 108
i)
The prosecution Case………………………… 108
ii)
Prima-facie Case………………………………. 110
iii)
The defence Case…………………………….. 111
CHAPTER IX: TRANSFER OF CASES………………….
113
A.
Introduction………………………………………………..
113
B.
Factors Giving Rise to Transfer…………………………..
114
C.
Effects of transfer………………………………………….
117
CHAPTER X: TRIAL IN THE HIGH COURT……..
131
A.
Introduction……………………………………………
B.
Committal proceedings and the Committal in the High court 132
C.
Arraignment and the Plea………………………………. 135
D.
Taking the Plea…………………………………………. 138
131
i)
Plea of guilt………………………………….
139
ii)
Plea of not guilty…………………………….
140
iii)
Option of silence…………………………….. 140 Page 6 of 382
iv)
Objection to jurisdiction……………….…….. 141
v)
Demurrer…………………………………
vi)
Autrefois Convict………………………..143
vii)
Autrefois Acquit………………………….
143
viii)
Pardon…………………………………….
144
E.
142
Procedure when Accused Stands Mute of Malice or is
Deaf and/or Dumb…………………………………….
144
F.
procedure when Accused Pleads Guilty: The practice…
148
G.
The hearing and conduct of the trial……………………
148
H.
Conduct of the case and Order of Hearing………….….
149
I.
Summing up to Assessors…………………………..
…
159
J.
The role and conduct of Judges and Assessors……..
…
161
K.
Judgment and Sentence……………………………..
…
165
L.
Conclusion……………………………………………..
165
CHAPTER XI: ASSESSORS…………………………… 166
A.
Introduction…………………………………………….. 166
B.
Evaluation of the Assessors System in Kenya…………. 167
C.
The Assessor System and the Jury System……………… 169
D.
Procedural Aspect of the Assessor System……………. 170
E.
Selection of Assessors………………………………….. 171
F.
The assessor in court……………………………………. 177
G. Opinion of Assessors…………………………………….. 181 H. Assessors as expert……………………………………… 183 I. Evaluation And Recommendations…………………….. 184 J. A Case for reform……………………………………….. 185
CHAPTER XII PROCEDURE IN CASES OF INSANITY.. 187 Page 7 of 382
A.
Introduction ………………………………………………..
B.
Procedure in case of lunacy or other incapacity of
the accused person……………………………………
187
188
C.
Resumption of proceedings……………………………. 190
D.
Refusal to plead insanity……………………………….. 196
E.
Insanity and the prosecution…………………………… 196
F.
Position in Kenya……………………………………… 202
G.
Insanity as a Defence: The verdict of “Guilty But Insane” versus “Not Guilty On Account of Insanity”…
204
H.
Insanity: Evolution……………………………………… 205
I.
“Guilty
but
insane”
Insanity?’’………………..
or
“Not
guilty
on
Account
206
J.
Insanity as and Absence of Mensrea…………………… 207
K.
Procedure after a finding of “Guilt” and “ Sanity”……… 210
CHAPTER XIII: JUDGEMENT……………………….
215
A. Introduction……………………………………………. 215 B. Delivery………………………………………………... 215 C. Form and Content……………………………………… 218 D. Minor and Cognate Offences…………………………..
219
E. Order of Judgment……………………………………
222
F. Conclusion……………………………………………..
222
CHAPTER XIV: SENTENSING…………………………….. 223 A. Introduction……………………………………………. 223 B. Historical Development of Sentencing and Punishment.. 224 Page 8 of 382
of
C. Objectives of Sentencing……………………………….. 227 D. The Available Sentences………………………………… 229 i)
Capital Punishment………………………….. 229
ii)
Imprisonment………………………………… 229
iii)
Detention in detention Camps……………….. 230
iv)
Corporal Punishment…………………………. 231
v)
Fines…………………………………………. 231
vi)
Forfeiture…………………………………….. 233
vii)
Compensation………………………………… 234
viii)
Security for good behavior…………………… 235
ix)
Absolute and conditional Discharge…………. 235
x)
Probation……………………………………… 236
xi)
Extra-mural Penal employment………………. 237
xii)
Police Supervision……………………………. 237
xiii)
Settlements……………………………………. 238
xiv)
The treatment of juvenile offenders…………… 240
xv)
Suspended Sentence…………………………… 240
E.
Alternatives to Imprisonment and Corporal Punishment….
241
F.
Compensation: Revisited………………………………….
242
G.
Restitution……………………………………………….. 243
H.
Costs……………………………………………………….
I.
Sentencing in Traffic Case………………………………. 244
J.
Young persons and sentencing…………………………. 245
K.
Sentencing in Kenya…………………………………...
L.
Concurrent and Consecutive Sentences………………… 249
M.
Alteration of Sentence and Committal…………………. 252
N.
Committals……………………………………………… 254
Page 9 of 382
247
244
CHAPTER XV: CONTEMPT OF COURT PROCEEDINGS…257 A. Introduction…………………………………………….. 257 B. Contempt of Court in Court Proceedings…………………258 C.Criminal Contempt…………………………………….
258
D.
Contempt in the face of Court…………………………
259
E.
Purpose of Punishment………………………………..
260
F.
Liability……………………………………………….
261
i) Wards of Court………………………………..
263
ii) Mental Disorders……………………………….
263
H.
Appeals from Order……………………………………. 263
I.
Execution and discharge………………………………... 263
CHAPTER XVI: APPEALS………………………………… 264 A. Introduction……………………………………………. 264 B. Appeals from subordinate Courts……………………… 264 C Competence of Appeal under Section 348(A)…………. 267 D.
Limitation of time……………………………………… 268
E.
Summary Rejection and Precision of the Appeal……...
269
F.
Summary Allowance of Appeals………………………
272
G.
Admission of Additional Evidence on Appeal………...
273
H.
Appeals from the High Court………………………….
276
I.
Constitution of the court in its Appellate Jurisdiction…
276
J.
Appeal in the absence of written records……………… 278
K.
Conclusion……………………………………………... 279
CHAPTER XVII: DIRECTION IN THE NATURE OF Page 10 of 382
HABEAS CORPUS…………………… 282 A.
Introduction…………………………………………… 282
B.
Territorial Ambit of Habeas Corpus…………………… 283
C.
Habeas Corpus………………………………………...
284
D.
Application of Habeas Corpus……………………….
287
CHAPTER XVIII: REVISIONS…………………………………
A.
Introduction……………………………………………. 288
B.
Revision in Practice……………………………………. 290
C.
Extent of powers of revision…………………………… 294
D.
Revision Jurisdiction When Right of Appeal Exists and is Not Exercised……………………………………
288
299
E. A Finding of Autrefois Acquit and Revision………….. 302 F.
Effect of Revision of a Civil Case upon a Criminal case.. 303
CHAPTER XIX: RE-TRIAL……………………………………
A.
Introduction…………………………………………….. 305
B.
Orders for retrial……………………………………….. 305
CHAPTER XX: INQUIRIES AS TO SUDDEN DEATHS…..
A.
Introduction……………………………………………. 313
B.
Inquest Jurisdiction…………………………………….
C.
Inquest where death occurs in police custody or prison.. 313
Findings after Inquest………………………………….
Page 11 of 382
314
313
305
313
FOREWORD Law students, practitioners, judicial officers and academics will breathe a sigh of relief as they can now resort to a comprehensive hand book on Criminal Procedure for quick reference. The book is written in simple language which affords a comprehensive treatment of the subject. The book is made rich because it incorporates the most recent unreported decisions of the Court of Appeal and the High Court of Kenya, most of which may not be easily available to the reader due to the haphazard and unsystematic law reporting system currently prevailing in the country. The book also affords quick and precise comparison of the subject with the English and the American systems where appropriate.
The author of the book has done service to the development of the law in Kenya, not only in devoting time to the writing and compilation of a much needed book, but the admirable and reliable treatment of the subject of the Criminal Procedure based on the latest decisions of the Highest Court in the land. The author must also be commended for ensuring the book is available at the shelves at such a reasonable cost to the reader.
As the author is a practising lawyer and lecturer at the Faculty of Law, University of Nairobi, this book cannot have a more authoritative source.
PAUL M. WAMBUA ADVOCATE & LECTURER AT THE KENYA SCHOOL OF LAW
Page 12 of 382
INTRODUCTION This book is written for Law Students, Practitioners, Judicial Officers and Academics. It is written as a Handbook to be resorted to for quick reference. At the same time, it provides comprehensive treatment of the subject. The book covers most of the key areas of Criminal Procedure that interest the Student, the Practitioner, the Magistrate, the Judge and the Academic. There are a number of chapters that puritanical students of procedure may consider out of place but are rendered here owing to their close nexus with procedure in a manner that underscores the often quoted statement, Procedure is the handmaiden of Substance. The chapters in the category include those of Criminal prosecutions, Methods of Controlling Prosecution, Contempt of Court Proceedings, Directions in the nature of habeas corpus and inquiries as to sudden deaths. Elucidation, analysis and exposition of basic requirements of procedure and aspects of criminal law, criminology and penology that are germane have been employed and dovetailed to help deal with Kenyan Criminal Procedure. In cases where the use of comparative jurisprudence is deemed necessary reference has been made to principles of English and American Law. Reference has also been made to the decisions of the former East African Court of Appeal arising from Uganda and Tanzania under the 'pari materia' rule. Heavy reliance has been placed on judgements of the Court of Appeal and the High Court. Owing to the absence of systematic and sustained law reporting most recent cases that are used are un reported. Decisions of the superior courts of Common Law Countries like the United States of America and England have been used in spite of their little precedential value, a number of decisions by magistrates have also been referred to where there is paucity of other judicial opinion. Extensive reliance has been placed on the Constitution and a number of statutes principally the Criminal Procedure Code (Cap. 75), The Penal Code (Cap. 63), the Evidence Act (Cap. Page 13 of 382
80) and the Traffic Act (Cap. 403). Being a Legal Practitioner and a teacher, the author has made certain observations and rendered opinion informed by these experiences but germane to the discourse in this book. This book is divided into Twenty one Chapters arranged deliberately into sub-topics for ease of reference and reading. To enhance clarity most chapters commence with an introduction some of which take a historical bent. To enhance the reading of this book it is necessary to outline the basic contents of each of the Twenty One chapters. Chapter 1 deals with the general nature of Criminal Prosecutions. There is mention of the Attorney-Generals constitutional position vis-a-vis prosecutions. There is equally an elaborate discussion on private prosecution. Chapter 2 deals with the subject of control of prosecutions. These are basically through, a Nolle Prosequi and Withdrawal. Chapter 3 covers arrest. The requisites for a valid arrest are given. Since arrests can be with or without a warrant, the circumstances under which the same can be effected and discussed. The chapter also identifies those who are legally mandated to effect arrest. Chapter 4 deals with searches and search warrants. Of special, interest are searches without warrants and searches with warrants. Chapter 5 examines the subject of bail. After giving a brief historical account of the development of the subject, bail in Kenya is examined extensively. There is a discussion of both pretrial bail and bail pending appeal and the factors to be considered in each case. It is also noted that there is a variance between law and practice and reforms are suggested. The Chapter then concludes by looking at bail as viewed by the Courts. Chapter 6 deals with charges and information. It analyses such aspects of a charge, like contents of a charge, the effect of citing wrong or non-existent sections of the law, and rules regarding the framing of dirges. Chapter 7 is on pleas. It examines the importance of and the procedure of Page 14 of 382
taking and recording pleas in the subordinate, courts. The pleas of' autrefois acquit', 'autrefois convict' and pardon are discussed. Change of plea and its effects is examined as well as the concept of plea bargaining. Chapter 8 is on trial procedure in the subordinate courts. It gives the structure of the court system in Kenya and the jurisdiction of Criminal courts. The trial procedure is examined in detail from the prosecution case, a finding of prima facie case upto the defence case. Chapter 9 deals with transfer of cases. It examines factors giving rise to a transfer and the factors that the High Court takes into cognisance before effecting a transfer. It concludes by giving the effects of a transfer.
Chapter 10 is on trial in the High Court. It deals with arraignment and plea-taking and the procedures to be followed.
Chapter 11 is on assessors. It begins with a discussion of the evolution of the assessor system in Kenya. Comparison between the assessor and the Jury system is undertaken. Selection of assessors and their role and/or importance to trials in the High Court is also undertaken.
Chapter 12 examines procedure in cases of insanity and begins with a historical account of the law relating to insanity. Insanity is discussed at two levels:- Insanity at the time of trial and insanity at the time of commission of an offence.
Chapter 13 is on judgments. It highlights the subtleties of a judgment delivery, form and content.
Chapter 14 deals with sentences.
After giving a brief historical
development of sentencing and punishment and the objectives of sentencing, the Page 15 of 382
various sentences are highlighted. The sentencing of young persons and sentencing examines committal proceedings beginning with its origin. To enhance the understanding of the Committal process a brief discussion of the erstwhile process of preliminary enquiries is undertaken.
Chapter 16 is on appeals. It highlights the rules governing appeals, the rules governing summary allowance and rejection of appeals and mentions those entitled to appeal against convictions, sentences and acquittals.
Chapter 16 addresses contempt of court proceedings and the attendant modes of punishment. Chapter 18 is on directions in the nature of habeas corpus. It provides insight into the nature and types of the writ of habeas corpus and concludes by setting out the procedure for seeking the writ of habeas corpus. Chapter 19 covers revisions. The procedure on revision is discussed and the extent of powers on revision. Reference is made to instances such as, revisional jurisdiction when right of appeal exists and is not exercised; a finding of 'autrefois acquit' vis-a-vis revision and the effect of revision of a civil case upon a criminal case based on the same facts.
Chapter 20 covers retrial and addresses instances and reasons for which a retrial may be ordered. Chapter 21 examines enquiries in cases of sudden deaths.
Page 16 of 382
DEDICATION Dedicated to my uncles M. T. Onono and Dr. W. E. Onyango whose generosity in adversity set me on the path of knowledge.
Page 17 of 382
TABLE OF STATUTES 1.
Constitution of Kenya Text of Revised Edition (1998) 1992
s
14 .........................................................................................
261
s
26 .........................................................................................
3,4
s
26(3) ......................................................................................
12
s
26(3) (b) ................................................................................
4
s
27 .........................................................................................
144
s
60(1) ......................................................................................
37
s
65(1) ......................................................................................
1Q5
(2) ...................................................................................... 105 s
67 ..........................................................................................
105
s
72 .........................................................................................
32,33
s
72(1) ......................................................................................
213
s
72(3)(b) .................................................................................
33
s
72(5) ......................................................................................
36,37
s
77(1).......................................................................................
8,188
s
81(1) ......................................................................................
10,36
s
123 ........................................................................................
36
2. Criminal Procedure Code. (Cap. 75) s
21& 24 ................................................................................
16
s
22 ........................................................................................ -
27
s
26 ..........................................................................................
27
s
29 ..........................................................................................
18
s
34(1) .....................................................................................
20
s
36 ..........................................................................................
56,63
s
38 ..........................................................................................
19
s
42 ..........................................................................................
19
s
78...........................................................................................
1H
s
78, 79, 80 & 81 ....................................................................
H3
Page 18 of 382
s
82 ..........................................................................................
Page 19 of 382
8
s
83 .........................................................................................; 14
s
87 ..........................................................................................
143
s
88 ..........................................................................................
7
s
88(1) ......................................................................................
37
s
88(1.3) ...................................................................................
134
s
88&89 ...................................................................................
H
s
89 ..........................................................................................
34
89(1)………………………………………………………………..70 s 99 ............................................................................................. 148 s 102 .......................................................................................... 21 s 105 ........................................................................................... 21 s 120 ........................................................................................... 24 s 123 ........................................................................................... 54,64 s 123(1) ....................................................................................... 34,36 s 125 ...................................................................................... . 56 s 130(1) .................................................................................. 65 s 131(1) .................................................................................. 65 s 135(1) .................................................................................. 82,133 s 135(2) .................................................................................. 91 s 136 ...................................................................................... 84 s 137 ...................................................................................... 79 s 162 ...................................................................................... 193 s 162-167 ............................................................................. 188 s 162 & 280 .......................................................................... 190 s 166 ...................................................................................... 190 s 167 ...................................................................................... 146 s 168 ...................................................................................... 215,222 s 169 ...................................................................................... 218,311 s 170 ....................................................................................... 218,222 Page 20 of 382
s 171(2) .................................................................................. 244 s 175 ....................................................................................... 235 s 177 ....................................................................................... 243
Page 21 of 382
s 179 ...............................................................
219,221
s 181 ...............................................................
221,222
s 193 ..............................................................
149
s 201 ..............................................................
161
s 207 .............................................................
108
s 207(1) ..........................................................
188
s 211 ................................................................
111
s 214 ...............................................................
137
s 219 ...............................................................
8
s 220 ..............................................................
124,131
s 221 ..............................................................
254
s 230 ..............................................................
131
s 231 ..............................................................
136
s 230(b) ..........................................................
131
s 233 ..............................................................
132
s 234 ..............................................................
131
s 230-249 .....................................................
119
s 235 ..............................................................
153
s 253 ..............................................................
134
s 261 .............................................;................
181
s 262 ..............................................................
170
s 263 ..............................................................
173
s 263 & 297 ..................................................
176
s 274 ..............................................................
136
s 276 ..............................................................
96
s 279(2) ..........................................................
220
s 279(a) ..........................................................
143
(b) ........................................................ s 280 .............................................................. Page 22 of 382
143 144,189
s 283 ..............................................................
149
s 298(1) ..........................................................
165
s 300 ..............................................................
149
Page 23 of 382
s 305(1) ..........................................................
298
s 322 ..............................................................
160,171
s 322(1) ..........................................................
159
s 330 ..............................................................
165
s 335 ..............................................................
234
s 336 ...............................................................
235
s 343-345 .......................................................
237
s 345 ..............................................................
238
s 346 ..............................................................
89
s 347 ..............................................................
74
s 348 .........................................;....................
48
s 348(a) ..........................................................
4,267
s 349 ..............................................................
268
s 352 ..............................................................
269
s 352(2) ..........................................................
270
s 352(a) ..........................................................
272
s 354(3) ..........................................................
252
s 354,357 & 358 ...........................................
288
s 357 ..............................................................
48,51,275
s 358 ..............................................................
277
s 359 ..............................................................
277
s 360 or 378 ...................................................
286
s 361(1) ..........................................................
7
(1)&(7) ................................................ s 362 ...............................................................
7 288,295
s 364 ............................................................... 288,295,300 s 364(1) ..........................................................
295,296
s 364(2) ..........................................................
289
s 364(5) ..........................................................
289,299
Page 24 of 382
s 364(1) (b) .....................................................
302
s 379 ..............................................................
147
s 382 .............................................................. 73,75,134,160,216,219
Page 25 of 382
s 385-388 ............................................................................
3L3
s 389 ...................................................................................
282
s 389(1) ...............................................................................
284,286
(2) ..............................................................................
287
3. Police Act (Cap. 84) s 23 .....................................................................................
56
4. Prisons Act (Cap. 90) s .............................................................................................
237
5. Traffic Act (Cap. 403) s .............................................................................................
244,310
6. Vagrancy Act (Cap. 58) s .............................................................................................
18
7. Penal Code (Cap. 63) s 12 ......................................................................................
141, 212
s 14(1) .................................................................................
142
s 15 ......................................................................................
142
s 21 ......................................................................................
250
s 24 ......................................................................................
229
s 27(3) .................................................................................
245
s 31 ......................................................................................
234
s 35 .....................................................................................
295
s 58 ......................................................................................
141
s 121 ....................................................................................
257
s 121(1) ...............................................................................
257
s 129(a) ...............................................................................
80
s 228 ..................................................................................
191
s 243(b) ...............................................................................
221
Page 26 of 382
s 246 ...................................................................................109 s 251 ....................................................................................
239
s 275 ...................................................................................93 s 279 .........................................................................................
255
s 279(c) ..................................................................................... 52 s 280,281,282 or 283 ..............................................................
80
s 296 .........................................................................................
247
s 304 .........................................;...............................................
96
s 306(a) ..................................................................................
91, 256
s 322 .........................................................................................
93
s 323 .........................................................................................
27,29
s 367(e) ..................................................................................... 75 s 367(e)&(a) ...........................................................................
75
s 352 & 356 .............................................................................
294
s 389 .........................................................................................
76
8. Magistrates Courts Act (Uganda) s 7 .............................................................................................
142
s 11 ...........................................................................................
276
s 197,198 & 199 ......................................................................
161
9. Public Order Act (Cap. 56) s 9(1) ......................................................................................... 71
10. Traffic Ordinance 1951 (Uganda) s 9(a) ......................................................................................... 73 s9(b) .......................................................................................... 73,74
11. Mental Treatment Act (Cap. 248) s 30 ........................................................................................... Page 27 of 382
214
Page 28 of 382
12. Children and Young Persons Act (Cap. 141) s 16(3) ...........................................................246 s 17 ............................................................... 240, 245 13. Borstal Institutions Act (Cap. 72)
246
14. Administration Police Act (Cap 85)
18
15. Game (Preservation and Control) Act (Cap. 266) (Uganda) 76 16. Privileges and Immunities Act. Cap 179
22, 141
17. The Constitution of Kenya (Amendment) Act, No. 9 of 1997. 35 18. The Statute Law (Repeals and Miscellaneous Amendments) Act, No. 10 of 1997 s .........................................................................................
Page 29 of 382
141
ACRONYMS Kenya Evidence Act. Criminal Procedure Code. All England Reports. Israel Law Reports. East African Law Reports. Kenya Law Reports. Miscellaneous Application Kenya High Court Decisions. Court of Appeal Reports. Uganda Law Reports. India Law Reports. Australia Law Reports. West African Court of Appeal. Tanzania Law Reports. Ireland Reports. Criminal Law Review Criminal Application Queen's Bench Division Legal Notice Master of the Rolls Chief Justice Penal Code Chapter Modern Law Review Criminal Application High Court of Tanzania Attorney-General
Page 30 of 382
TABLE OF CASES A.G-vs-Marakaru(1960)EA 484 .......................................................
265
A.G -vs- Kelly (1938)I.R ..................................................................
306
Abdallah Change -vs- R (1964)EA ...................................................
94
Abdalla Omer -vs- R (1958)EA 725 .................................................
179
Abdullah -vs- R (1963) EA ..............................................................
50
Abdullahi Ali-vs- R (1958)EA ..........................................................
181
Adan -vs- R [1970] EA .....................................................................
101
Adam Mwambalafu -vs- R (1966) EA 45..........................................
89
Aganyi -vs- R (1960)EA ...................................................................
254
Ahmed Hirsi Mohamad -vs- R (1958)EA .........................................
233
Ahmed Mohamed -vs- R (1959)EA.1087 .........................................
235
Ahmedali Ali Dhalamasi Sumar -vs- R (1964)EA 481 ....................
308
Alexus Afumu & Another -vs- R (1953)26 K.L.R .............
108,148
Ali Mohammed Hassani Mpanda -vs- R (1963)EA .........................
221
Aloys Awori -vs- Uganda (1972)EA 469 .................................... 309 Amand -vs- Home Secretary & Another (1943) A.C ...................
286
Andiazi -vs- R (1967)EA 813 ........................................................
175
Andrea s/o Kulinga -vs- R (1958)EA 684 ..........................
159,178
An Application for Directions in the Nature of Habeas Corpus by Keshavlal Punja, (1955)22 EACA 381 ...............
282,287
Arnold Pudo s/o Aranda -vs- R (1960)EA 380 .....................
269,271
Attorney-General -vs- Times Newspapers Ltd(1973)l All ER .........
23
Augustine Chebon A. Cherutich -vs- R Cr. App. No.16 of 1982 .....
162
Avone -vs- R (1969) EA ............................................................ 71,132 Baland Singh-vs-R (1954) EACA .............................................. 182 Baland Singh -vs- R (1954)21 EACA ........................................... Benjamin Sauzier -vs- R (1962)EA .......................................
94
Bracegirdle -vs- Oxiey (1947)1 All E.R .......................................... Page 31 of 382
179
265
Bratty -vs- Attorney-General for Northern Ireland (1961)3 WLR 965 ................................................................................
Page 32 of 382
199
Byarutu Gata -vs- R [1950] 17 EACA .........................................
101
Chander Kanta Sethi -vs- R (1962)EA 523 ....................................
231
Cherere Gukuli -vs- R (1955)22 EACA 478 .................................
91
Christopher Omufira Akwabi -vs- R Cr. App. No. 131 of 1989 ......
80,97
Consolidated Exploration and Finance Co. Ltd -vs- Musgrave (1900) 64 J.P .........................................................................
53
Desai -vs- R (1971) EA .................................................................
99
Desiderio Kawunya -vs- R (1953)20 EACA ...................................
312
Dhalamini -vs- King (1942) A.C 583 .....................................
166
Durham -vs- US 214 R 2d 862, ................................................ 203,208 Edwards (Inspector or Taxes) -vs- Bairston & Another (1953)3 All E.R ......................................................................
266
Elgood -vs- R (1968)EA ......................................................
273
Ekai Paul -vs- R Crim. App. No. 15 of 1981 ..........................
184
Ellis -vs- State (1930) ALR 783 ..............................................
215
Eliud Mwaura -vs- R Crim. App. No. 446-of 1986 ..................... 38,39 Eneriko Lutalo -vs- R (1966)EA 328 .....................................
216
Ex-parte Malley 50 Nev.248 (1927)53 A.L.R 395 ........................
45
Fatehali Manji -vs- R (1966) EA 343 ..............................................
3Q6
Fazal & Tryabali and Another -vs- R (1959) EA 29 ................ 277 Fernandes-vs-R (1957) EA ......................................................... 304 Francis Juma Musungu-vs-R (1958) EA ................................... lg2 Francis Muzungu (Francis) -vs- R (1958)EA ........................... 179 Galos & Another -vs- R (1944) A.C ......................................... 308 Grace Ibingira -vs- A.G. of Uganda (1966)EA p .............................
285
Gouriet-vs-Union of Post Office Workers (1978) A.C 435 .........
5,135
Govindji -vs- Regina (1954) 21 EACA ..................................... 52 Habib Kara Vesta -vs-R (1943)1 EACA ..................................... 181 Haining & Others -vs- R (1971)EA 421 ................................... 269 Page 33 of 382
Hando -vs- R (1951)18 EACA ................................................. 138 Hasham -vs- R Crim. Appeal No. 582 of 1967 (Un-rep) ................
50
Islam Ali-Abdullah -vs- R Crim. Application No. NAI.2 of 1989 .... 52 Jaffer s- R (1973) EA ................................................................ 64
Page 34 of 382
James -vs- R (1950)18 EACA ................................................... 253 John Brown Shilenje -vs- R Cr. Appl. 180 of 1980 ..............
113 116
Jones -vs- National Coal Board (1957)2 All E.R. ..................... 152 Jopley Constantine Oyieng' -vs- R - Criminal Appeal No. 45 of 1988 ................................................................................
3
Joseph Odhengo s/o Ogongo -vs- R (1954)21 EACA .....................
258
Kabeni -vs- R (1970) EA 503 ................................................... 236 Kaisa-vs- R (1975)EA ......................................................................
245
Kamau s/o Muga-vs- (1963)EA ........................................................
84
Kamau -vs- R (1975)EA ...................................................................
272
Kamlesh M. Pattni -vs- R Cri. App. No. 31 of 1995 ........................
56
Kamlesh M. Pattni -vs- R Cri. App. No. 88 of 1995 ................ 56 Kamundi -vs- R [1973] EA 540 ................................................ 103 Kamwana s/o Muria -vs- R (1958) EA 471 .............................. 82 Kanja Muguku -vs- R Cr. App. No. 397 of 1983 ........................ 255 Kaplotwa s/o Tarino -vs- R (1957) EA 553 ......................................
192
Karioko s/oGichohi.vs-R(1950)17 EACA ......................................
270
Katungo Mbuki -vs- R (1962)EA 682 ....................................... 255 Kenera Opidi-vs-R (1965) EA 614 ..................................................
132
Keshallila -vs- R (1963)EA ...................................................... 298 Keteta -vs- R (1972)EA 532 ...................................................... 246 Khalif-vs- R (1973)EA 364 .....................;................................ 251 Kimanzia -vs- R (1972) EA 495 ...................................................
237
Kimani & Maina -vs- Nathan Kahara H.C.C (Misc) App. No. 11 of 1988 ................................................................................
135
King Emperor -vs- Tramal Reddi (1901) ILR 24 Madras 523 ........163 167 Kinyori s/o Kiraditu -vs- R (1956) EACA 480 .......................
151
Kirby vs- King (1714)93 E.R. 338 .........................................
40
Kityo -vs- Uganda (1967)EA ..................................................... 27 84 Page 35 of 382
Kionywaki-vs-R (1968) EA 195 ...................................................... Kiwala -vs- Uganda (1967)EA 758 ...................................... Kuyate -vs- R (1967)EA 815 ............................................................ Koech -vs- Republic .................................................................... 28
Page 36 of 382
19 290 292 272
Laban Koti -vs- R (1962)EA 439 ......................................................
134
Lall Khan -vs- R 17 EACA .............................................................
286
Lamabutu Mokalya -vs- R (1958)EA 706 ......................................
180
Lambert Houareau -vs- R (1957) EA 575 ........................................
161
Laurenti Busolo s/o Mukumba -vs- R (1957)EA .................
165,179
Lebiningin -vs- R (1974) EA .................................................... 78 Letoyiania Another -vs- R (1972)EA ..............................................
246
Lighten alias Magere -vs- R (1951)18 EACA .................................
270
Loibon -vs- R (1949)16 EACA ........................................................
132
Lujo -vs- R (1946)EA 13 EACA .............................................
132
Mahlikilili Dhalamini & Others -vs- R (1942) A.C 589 ………………………………………………………….......
163,182
Mahmood vs- R (1974)EA .............................................................. Maina vs- R (1970)EA 370 ...............;...................................
57
247, 269
Margaret Magiri Ngui -vs- R Crim. App. No. 59 of 1985 ...............
36
Masran -vs- R (1960) EA 321 ...........................................................
47
Maumba -vs- R [1966] EA ...............................................................
103
Mbebi vs- R (1957) EA 426 ...........................................................
112
M'Kanake -vs- R (1973)EA .............................................................
309
Meek -vs- Powell (1952)1 K.B .........................................................
297
Merali & Others -vs- R (1971) EA ..................................................
310
Merali -vs- R (1972) E.A 47 .............................................................
48, 51
Mehar Singh Bensel -vs- R (1959)EA 813 .....................................
160
Mehar Singh vs- R (1951) U.L.R ....................................................
243
M'bui -vs- Dyer (1967) EA ..............................................................
20, 33
M'Mwenda -vs- R [1957] E.A 429 ..................................................
101
Michael Otieno Ademba -vs- R (1983)1 C.A.R 187, (Court of Appeal Reports) .......................................................
51
Michael Meshaka -vs- R (1962)EA ......................................
….. 292, 293
Page 37 of 382
Misana -vs- R (1967)EA 334 ...........................................……
279
Mka -vs- R (1969)EA 598 ....................................................
232
Motichand -vs- R (1972) EA 399 ............................................. 47 Mohamedi & Another -vs- R (1973)EA 1907 ................................ Mohamed vs- R (1969)EA ..............................................
164
233
Mohamed Juma -vs- R.I.T.L.R .......................................………..
232
Mohammed Hussein -vs- Price Controller (1943)10 EACA ...........
275
Mohanlal Trivedi -vs- R ............................................................ 26 Mongella-vs-R (1934)1 EACA ................:...............................
133
Mukindia -vs- R (1966)EA 425 ................................................. 242 Mulakh -vs- R (1954)21 EACA 383 ........................................... 270 Mulaba Mugeni -vs- R (1964)EA 518 ........................................ 132 Mutemba s/o Rutehenda -vs- R (1953)20 EACA ...................... 271 Murimi -vs- R (1967)EA 542 ................................................... 280 Musa s/o Bakari -vs- R (1968) H.C.D (Tanzania) No. 239 .............
251
Musoke -vs- Uganda .................................................................. 34 Mutwalumbi Bukuli -vs- Busoga (1964)EA 713 ..........................
185
Muyimbo -vs- R (1969) EA 433 ............................................... 307 Mwasya -vs- R (1967) EA - 345 ...................................................
75
Mwangi -vs- R (1974) EA .......................................................... 90 Mwangi s/o Njoroge -vs- R (1954)21 EACA 377 ........................ Nathani -vs. R (1965)EA .................................................……….
16 85
Nathan Godfrey Odhiambo Obiro -vs- R (1962)EA 650 ............... Narrotthandas Vithlam -vs- R (1957) EA 343 ........................
294
109
Narothanda Vithlani -vs- R (1957)EA 343 ................................ 149 Nahashon Marenya -vs- R Cr. App. No. 786 of 1982. ..................
71
Ndirangu -vs- R (1959) EA 875 .................................................. 174 Ndirangu Juma-vs-R (1953)20 EACA 190 ................................. 255 Ngige s/o Gatonye -vs- R (1963) EA 663 .................................... Page 38 of 382
78
Nilsson -vs- R (1970)EA 599 ....................................................... 249,253 Nsubuga -vs- R (1968) EA ....................................................... 65 Ogalo s/o Owuora-vs-R( 1954)21 EACA ................................. 253 Oman -vs- R (1956)23 EACA 580 ..........................................
153
O'Neal -vs- State 35 Ga. App. 665 (1926) ................................ 215 Osman & Another -vs- R (1972)EA 429 .................................... 237 People Ex-parte Summons -vs- Snow 340 iu 469 (1688-93) I.N.P ..
46
People -vs- Tinder 19, Cal.539 .................................................. 44 Pita vs- R EACA Cr. App. No. 66 of 1972 (Unreported) ..............
92
Popat -vs- R (1950)17 EACA ..............................................
153
R -vs- Abdulla Mali (1920-29)3 ULR ..................................…..164,177 R -vs- Assa Singh (1937)4 EACA .................................................
164
R -vs- Barronet and Allain (1852) 17 Y.P ....................................
42
R-vs- Bazilio Sentamu (1936-51)6 ULR .................................... 159 R-vs- Badger (1843)7 ].P ........................................................
53
R-vs- Bennett and Newton, 9 Cr. App. R. .......................................
278
R -vs- Grays Justices, Ex parte Graham (1982) 3 All E.R 635 ........
9
R -vs- Rose (1885 - 99) All E.R 851 .............................................
41
R -vs- Phillips (1974) A.C 111 ......................................................
41
R -vs- Peter Kariuki (1976) .............................................................
43
R -vs- Muturi Kigano 1975 .......................................................... 44 R -vs- Vallet (1951)1 All E.R ..................................................... 44 R -vs- London Sessions Appeal Committee Ex-Parte Beautmont (1951)1 All E.R ........................................................ ......................
45
R -vs- Porter (1908-10) All E.R. ....................................................
54
R -vs- Gabhai jessa, High Court Bulletin No. 54/1963 at ..............
54
R -vs- Gajjan Singh & Others (1947)14 EACA 111 (P.42) ............
55
R -vs- Wood Green Crown Court, Ex-parte Jemima Home Reported in Criminal Law Review (1964) Vol.39 641 …….... 69 Page 39 of 382
R-vs- Nottingham Justices Ex-parte Davies (1980)2 All E.R775.....
58
R -vs- Dalip Singh (1943)1 EACA ............................................. 82 R -vs- Muir (1938)2 All E.R 516 ................................................. 83 R -vs- McBride (1961) 3 W.L.R 549 ............................................
84
R -vs- Scaramanga (1963)2 All E.R 582 ......................................
86
R -vs- Molley (1921)2 KB 364 ........................................................
87
R-vs-Devett 8, C&P 639 .................................................................
87
R -vs- Thompson (1914)2 KB .................................................... 87, 33 R -vs- Benfield 2, Burr.980, 983 ................................................ 88 R-vs- Fuller 1 B & P .....................................................................
88
R -vs- Boyle (1954)2 All ER 721 .................................................
91
R -vs- Guest (1964)3 All E.R 385 ............................................. 95,103 R -vs- Tucker 4 Burr. 2046 .......................................................... 95 R -vs- Phillips 2 Str. 921..........................................…………
95
R -vs Yates (1920)15 Cr. App. Rep .................................................
96
R -vs- Malakwen Arap Mutei (1949)23 KLR ............................... 111,158 R -vs- Garden (1879)5 QBI ....................................................... 128 R -vs- Gee (1939)2 KB 442 ....................................................... 136 R -vs- Ndolo (1926)10 KLR 11 ................................................. 123 R-vs- Jonah Orao Anguka, H.C.Crirninal Case No.41 of 1992 ........
135
R -vs- Mushraf Akhtar (1964) EA ................................................
137
R -vs- Main (1954)21 EACA .........................................................
137
R -vs- Akatendasama (1956)23 EACA 487 ................................ 137 R -vs- Home Secretary ex parte Soblen (1963)2 QB ........................
283
R -vs- Gusambizi Wasonga (1948)15 EACA ................................
163
R -vs- Tomasi Mufumu (1959)EA 625 ....................................... 148 R -vs- Chacha (1953)20 EACA 339 ...............................................
176
R -vs- Yonasani Egalu (1942) EACA .....:....................................... 140 143 R -vs- Waithaka (1963)EA ...............................................................140 Page 40 of 382
R -vs- Mungu Atosha (1938)5 EACA .............................................
130
R -vs- Deputy Chairman of Inner London Quarter Sessions (1970)2 WLR ............................................................... ............. 142 R -vs- Obau 15 KLR 107 ............................................................ 149,164 R -vs- Leiawan Leseroi (1964) EA III, Supreme Court of Kenya ....
144
R-vs-Daudji (1948)15 EACA ........................................................
143
R -vs- Salim Bin Karama (1951)18 EACA .....................................
143
R -vs- Loizeau (1956)23 EACA 566 .......................................... 143 R -vs- Livingstone Anyanga, Crim. Appeal No. 125 of 1989 ........
147
R -vs- Grimsby Recorder (1951)2 All ER 889 ................................
148
R -vs- W. Y. Wilken (1965)EA ........................................................
176
R -vs- Anyelwisye Undule (1965) EA 451 ......................................
193
R -vs- Beynon (1957)2 WLR 956 ....................................................
193
R -vs- Roberts (1954) Crim. L. R. .................................................
194
R-vs-Mwita (1948)15 EACA ........................................................
132
R -vs- Ndambere (1947)14 EACA .................................................
133
R -vs- Mutwiwa (1935)2 EACA .....................................................
183
R -vs- Podola (1959)3 All E.R 418 .................................................
194
R -vs- Juston (1945)6 Cos 385 .......................................................
195
R-vs- Pritchard (1836)7 C & P ......................................................
195
R -vs- Barnett (1956) Cr. Law Rev. 560 .........................................
195
R -vs- Bastian (1958)1 WLR 413 .................................................. 197498 R -vs- Bishom s/o Mwango 2 TLR, ...............................................
232
R -vs- Price (1962)3 WLR 1308 ....................................................
{97
R -vs- Oliver Smith (1910) Cr. App. Rep. .....................................
197
R -vs- Casey (1947)32 Cr. App. Rep. ............................................
197
R -vs- Cain 25 Cr. App. Rep.2, .....................................................
152
R -vs- Noormohamed Kanji (1937)4 EACA ............................ 12 R -vs- Jack Jezelani (1947)14 EACA .......................................... ^Q Page 41 of 382
R -vs- Wachira (1975)EA ......................................................... 267 R -vs- Kidasa (1973)EA 368 ..................................................... 268 R -vs- Mallo (1958) EA II .......................................................... 268 R -vs-Kemp (1957)1 399 ..................................................................
193
R -vs- Nott (1959) Crim. L.R 365 .....................................................
199
R -vs- Dickie (1984)3 All E.R ................................................
204
R -vs- Magata s/o K-achehakana (1957)EA 330 ..............................
205
R -vs- Smith 8 Cr. App. Rep. ..................................................... 200 R -vs- Dixon (1961)3 All E.R 460 ............................................. 200 R -vs- Duke (1961)3 All E.R 737 .................................................
200
R -vs- Indo Parsad Dave (1963)EA .............................................. 296 297 R -vs- Tuttle (1929)A11 E.R .................................................... 297 R -vs- Ajit Singh s/o Vir Singh (1957)EA 822 ................................
299
R -vs- Telenga (1967)EA 407 ..................................................... 98,295 R -vs- Morris (1961)2 WLR 986 ..................................................
\QQ
R -vs- Mandi s/o Ngoda (1963) EA .................................................
202
R -vs- Malakwen Arap Mute (1949)22 KLR ..................................... m 153 R -vs- Sironga & Mindo (1918)7 KLR .............................................
291
R -vs- Orunyo (1970)EA ............................................................. 251 R -vs- Wamasuya s/o Bola (1944)11 EACA ................................
154
R -vs- Sherrif 20 cox Cr. C. 334 ................................................ 155 R-vs-Makali& 3 Others Crim. App. No. 4&- 5 of 1994 .......
750 757
R -vs- Pinckrey (1904)2 KB ....................................................... 284 R -vs- Gray (1900)2 QB ................................................................
261
R-vs- Zablon Ogalo Obonyo Cr. Case No. 24 of 1991 ..................
22
R-vs-Heifer (1951)1 KB ..................................................................
49
R-vs-Guest ex p. Anthony [11964]3 All ER 385 ..............................
103
R -vs- Lokidilio s/o Laitogon, Confirmation case No.344 of 1958 (1958)EA ......................................................................... 234 Page 42 of 382
R -vs- Saidi Kabila Kiunga (1963)EA I .......................................
191
R .vs Sowedi Mukasa (1946)13 EACA C.A ...................................
249
R -vs- Parks (1961)3 All E.R 633 ..................................................
274
R-vs-Nathani (1965)EA 777 ..........................................................
250
R -vs- Paulo Lwevola (1943)10 EACA ...............................
178,181
R -vs- Cosma (1955)22 EACA 450 ................................................
134
R -vs- Mathenge s/o Muriemo (1938)5 EACA ............................
150
R (Through J. K. Mbugua & 2 others) -vs- William R. Ole Ntimama. Private Prosecution case No. 13 of 1995 ......................
6
R (Through Afro Travels Ltd) -vs- A. K. Holdings, Trust Bank Holding, Ajay Shah Cr. Revision Case No. 56 of 1995 ..................
6
R-vs-Eric Kotut & 5 Others Private Prosecution case No. 1 of 1994 ...…6 R-vs-The Chairman of London Sessions Ex-parteDownes(1954)lQBI ... 96 R -vs- Abdaka Mali (1921) 3 ULR ................................................. R -vs- Odera (1973)EA 392 .....................................................
171
238
R-vs-Yowasi (1939)6 EACA .........................................................
170
R-vs-Wilkin (1964) unreported ..............:......................................
175
Raghbin Singh Lamba -vs- R (1958) EA 337 ...................................
47,4.9
Rajabu Jalum -vs- R (1965)EA 365 .................................................
181
Rarilal Shah -vs- R (1958) EA ..............................................
222,311
Raila Odinga -vs- George Saitoti & Others Misc. App. No. 31 of 1995 .6 Re Castings (1958)42 Cr. App. Rep. .............................................
217
Republic (Through James Orengo & 7 Others) vs Rashid Sajjad & 3 Others Misc. Appl. No. 37/1997 .............................. 42 Republic (Through James Orengo) vs Rashid Sajjad & 13 others. Misc. Appl. No. 41 of 1997 .......................................... 42 Richard Kimani & S. M. Maina -vs- Nathan Kihara - High Court Criminal (Revision) Case No.ll of 1983 .......................... 41 King -vs- Thomas 2, East P.C 934 ................................................. Page 43 of 382
37
Robert Ndecho & Ogonyo Luora-vs-R( 1951) 18 EACA ................
219
Robbert Martins-vs-R Criminal Case No. 1321 of 1975 .................
43
Ross -vs- R (195DA11 E.R 451 .....................................................
3Q6
S (An Infant) By Parsons (His next Friend) -vs- Recorder of Manchester (1970)2 WLR ..............................................…..
103,301
Sabur -vs- R (1958) EA ..........................................................72,104 Samwiri^vs- R (1953)20 EACA ................................................. 312 Saina •vs- R (1974) EA ............................................................... 91 Shah -vs- R (1976) C.A unreported ...............................................
47
Selemani s/o Ussi-vs- R (1963)EA 44 2 ...................................... 180 Semi Longa -vs- R (1964)ea 512 ...................................................
132
Semuyaga -vs- Uganda (1975)EA ......................................……… 296,302 Seidi -vs- R (1969) EA ................................................................ 82 Seifu s/o Bakari -vs- R (1960)EA 338 ...........................................
250
Sey -vs- King (1950)13 WACA .......................................................
13
Shiani -vs- R [1972]EA 557 ..........................................................
104
Shire -vs- R (1967)EA ................................................................ 280 Sirasi- vs- R (1936)3 EACA ..........................................................
275
Somo -vs- R (1972) 476 at 480 ......................................................
47
Sowedi Kauta-vs-R (1933)13 K.L.R ............................................
134
Stanley Munga Githunguri-vs-R Misc. Application No. 271 of 1985…10 Suleman Ahmed -vs- R (1922)9 EALR ...........................................
292
Surat Singh -vs- R (1946)13 EACA ............................................ 251 Tamano -vs- R (1969) EA ............................................................ TheRepublic,ThroughDevjiKanji-vs-DavendraValjiHalai(1978)KLR ……………………………………………………......... 45 Torroha Mohammed Torroha -vs- R Criminal Appeal No. NAI.5 of 1988 (Unrep) .....................................................
53
Uganda -vs- Keneri Opidi (1965)EA 614 ................................
73
Page 44 of 382
310 ........
Uganda -vs- Zubairi and Another (1973)EA 470 ..........................
77
Uganda -vs- Polasi (1970)EA 638 ..................................... 300,302 Valezi Kashiza -vs- R (1954)21 EACA 389 ................................... Wachira s/o Njenga -vs- R (1954)21 EACA 398 ................
133
220,221
Wafula s/o Waniamira -vs- R (1957)EA 498 ' ............................... Wafula -vs- R (1954)EA 498 ....................................................... Wandera Reuben Kubanisi -vs- R (1965) EA 572 ..........................
75
Wanjema -vs- R [19711 EA 493 ....................................................
14
Ward -vs- James (1965)1 All E.R 563 ............................................
159
Washington s/o Odingo -vs- R (1954) EACA 392 .......................
59
Washington s/o Odindo -vs- (1954) EACA 392 ............................ Washington s/o Odindo-vs-R (1954)21 EACA 392 ..................... Wenlock-vs-River Dee Co; 19 Q.B.D ....................................... 17 Wheatley -vs- Lodge (1971)1 All ER ............................................. Witherley -vs- Witherley (1608)2 Rolle's Abridg ...............
5
83 284
Yakobo -vs- R (1945)12 EACA .....................................................
775
Yokobo Uma and Another -vs- R (1963)EA 542 .......................... Yosefu Muwonge and Two Others -vs- Uganda Cr. App. No. 86 of 1965 (unreported) ...............................................................
779
Yowana Sebuzikira -vs- R (1965) EA 684 .....................................
133
Yozefu & Another-vs-R (1969) E.A ............................................
75
Yusuf Maumb -vs- R (1966)EA .....................................................
95
Zaver -vs- R (1952)19 EACA ..................................................... 779 Zaverchand Hemraj Shah -vs- R (1960) EA 562 .............................
Page 45 of 382
73
CHAPTER ONE
THE NATURE OF CRIMINAL PROSECUTIONS
A. INTRODUCTION
Criminal procedure is the process through which substantive penal laws are applied to achieve their general purpose. It is the means and mode of bringing to trial those suspected of criminal activities. The procedure of trying a suspect is an elaborate one and runs from the time of arrest, through interrogation and charge, to the time of taking the suspect to court for the plea, trial, judgment, sentence, appeal and revision of a case if necessary. Criminal proceedings are instituted in the name of the State as the complainant. Thus in any one criminal case the complaint will appear as Republic -vs- Wachira, Wachira being the name of the accused person. This means that in law every crime is against the State1 and, therefore, the state takes the responsibility to seek redress on behalf of the victim by punishing the offender. There has nevertheless been the argument among criminologists as to who actually is the complainant in criminal prosecutions: the State or the victim of the crime? The answer is that the State is as much a complainant in any one criminal prosecution as the victim of the crime. Being under the duty to protect the society, the State takes the responsibility to prosecute those who commit crimes. But there is almost always a background complainant in crimes involving private property and crimes against the person. Such complainants usually appear only as prosecution witnesses. In most cases they appear as the
1
See Rufus Riddlesbarger v. Brian John Robson (1959) E.A. 841. Page 46 of 382
victims of the crime. The State, on the other hand, is usually the complainant and the prosecutor. Since it is the state which through its legislative arm enacts laws, breach of such laws by any criminal activity is in direct conflict with the interests of the state. Thus, as the custodian of the legal and administrative order, the state becomes a complainant when her laws are breached.
B. THE ATTORNEY GENERAL'S CONSTITUTIONAL POSITION
The Constitutional basis of criminal prosecution is founded on section 26(3) of the constitution which provides:
"The Attorney-General shall have power in any case in which he considers it desirable so to do:-
(a)
to institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed by that person;
(b)
to take over and continue any such criminal proceedings that have been instituted or undertaken by himself or another person or authority and
(c)
to discontinue at any stage before judgment is delivered any criminal proceedings instituted or undertaken by himself or any other person or authority".
THE NATURE OF CRIMINAL PROSECUTIONS
Page 47 of 382
The foregoing provision underscores that under Kenyan law it is the State, through the Attorney-General, which is bestowed with the power of controlling criminal prosecutions. This was the position of the court of Appeal of Kenya in the case of Jopley Constantine Oyieng' -v- Republic2 wherein the court observed:-
"... in the instant case, the appellant was pursuing a right to file a private prosecution. Only the Attorney-General has the right under section 26 of the Constitution to institute criminal proceeding's. No similar right is extended to a private individual and it is obvious that section 88(1) of the Criminal Procedure Code does not override section 26 of the constitution...”3 The state is therefore the prosecutor in all criminal prosecutions4. That power of the state to control all criminal proceedings subsists whether the proceedings have been initiated by a complaint and the prosecution conducted by a private individual under the provisions of section 895 of the Criminal Procedure Code. The problem of who has the right to prosecute is even more pronounced in respect of appeals. On the one hand section 348(a) provides that;
"when an accused person has been acquitted on a trial held by a subordinate court, or where an order refusing to admit a complaint or formal, charge, or an order dismissing a charge, 2 3 4 5
Criminal Appeal No. 45 of 1988. Ibid Sec Riddlesbarger, Supra, note. The section allows a private individual to prosecute a crime subject to permission being granted by a magistrate with Jurisdiction, Page 48 of 382
has been made by a subordinate court, the Attorney-General may appeal to the High Court from the acquittal or order on a matter of law".
This provision seems to oust from the scope, of a private prosecutor conduct of criminal appeal, and to rest on the Attorney-General monopoly right of prosecuting criminal appeals a position which was upheld in Riddlesbarger v Robson6. On the other hand, the Court of Appeal in Republic Thro' Devji Kanji v Davendra Valji Halai7 held that a private prosecutor has a right of appeal against an acquittal. Faced with those two conflicting authorities, in the case of Charles Wainaina v H. K. Ndegwa 8the High Court decided that it was bound by the latter case being the most recent in point of time. On the whole, the cumulative effect of section 26 of the Constitution of Kenya and section 348(a) of the Criminal Procedure Code is that it is the Attorney-General who has the ultimate and undisputed control over all prosecutions. C. PRIVATE7 PROSECUTION
The State's constitutional and legal rights over criminal prosecutions are not exclusive. A private individual other than the Attorney-General may also institute criminal proceedings if he/she has reason and probable cause to believe that an offence has been committed. This right is recognised under section 26(3) (b) of the Constitution which also empowers the Attorney-General to take over and continue any such criminal proceedings that have been instituted or undertaken by another person or authority.
6 7 8
Supra, note 1. (1978) KLR 1978. Criminal Appeal No. 925 of 1979, High Court, Nairobi (unreported). Page 49 of 382
Section 89 of the Criminal Procedure Code confers the right to institute criminal proceedings on any person by means of complaint to a Magistrate, and section 88 confers the right to any person to conduct the prosecution subject to the permission of "any Magistrate trying the case". The right to private prosecution has been said to be "a useful constitutional safeguard against capricious, corrupt or biased failure or refusal of police forces and the office of Director of public prosecutions to prosecute offenders against the criminal law9". A private individual who wishes to institute a private prosecution must first make a complaint to the Magistrate after which the Magistrate may upon being satisfied grant permission for private prosecution. But there are conditions which a private prosecutor must fulfil before the Magistrate grants the permission. Such conditions were stated, by the High Court of Kenya in the case of Richard Kimani & M. Maina -vs- Nathan Kahara10 thus:"When an application is made under section 88 to conduct a prosecution, we think that the Magistrate should question the applicant to ascertain whether a report has been made to the Attorney-General or to the police and with what result. The Magistrate should also ask himself how is the complainant involved? What is his LOCUS STANDI? Has he personally suffered injury or damage or is he motivated by malice, or political considerations?". Thus in granting permission for a private prosecution, the discretion of the Magistrate must be exercised judicially, sparingly and only on extremely good grounds. This is to avoid misuse of the right to private prosecution for personal vendetta and vengeful intentions. The Court further emphasised the importance of private prosecution by stating:-
"...the right of Private Prosecution is essential to counteract
9 10
Gouriet V Union of post office workers (1978) AC 435 at 477. High Court Criminal (Revision) case No. 11 of 1983 Page 50 of 382
attempts by wealthy and influential people to stifle prosecutions when offences by them are alleged in reports to the police.11 But the question has arisen as to the validity of a private prosecution commenced and/or accomplished without prior permission of the Magistrate.12
Since there are certain conditions which the Magistrate must consider before granting or refusing permission for private prosecution, one would assume that without the Magistrate's permission any prosecution or purported prosecution by a private individual is a nullity. This issue was raised in the case of The Republic, through Devji Kanji -v- Davendra Valji Halai.13 In that case, the appellant brought a private prosecution in the Senior Resident Magistrate's Court, Nairobi, against the respondent. Both parties were represented by counsel and, at the close of the prosecution case, counsel for the respondent took the objection that the private prosecutor had not obtained permission from the court to prosecute the case, as required by section 88(1) of the Criminal Procedure Code. The Senior Resident Magistrate upheld the objection, and held the proceedings to be a nullity. He was upheld by the High Court (Sachdeva, J.) exercising revisionary jurisdiction which had been invoked. The appellant appealed against the High Court decision and it was held that where all persons concerned are aware that a private prosecution and the parties are represented by counsel, if no objection is raised to the absence of formal permission from
11 12
13
Ibid See decisions in the unreported cases of Raila Odinga v Prof. George Saitoti & Others. Misc. Application No. 31 of 1995; Kamlesh Mansukhlal Pattni v Republic. Criminal Appeal No. 88 of 1995; R (Through Joseph Kairu Mbugua & 2 others) v William Rongurwa Ole Ntimama, Private Prosecution Case No. 13 of 1995. R (Through Afro Travels Ltd) v A. K. Holdings Ltd, Trust Bank. Ltd, Ajay Shah , Criminal Revision Case No. 56 of 1995. . R v Eric Arap Kotut & 5 Others Private Prosecution No. 1 of 1994, Republic (through James Orengo & 7 others) v Rashid Sajjad & 4 others. Misc. Appl. No. 37 of 1997 (28/8/1997) Republic (through James Orengo) vs Rashid Sajjad & 13 others, Misc. Appl. No. 41 of 1997 (22/9/97) [1978] KLR 178 Page 51 of 382
the Magistrate to the institution of such proceedings in accordance with section 88 of the (Criminal Procedure Code) until after the close of the Prosecution case, such permission may properly be inferred from the fact that the trial has been allowed to proceed so far. The court in the same case substantially lifted the limitation of a private prosecutor in appeal cases by stating that a private prosecutor as a party to proceedings in revision in the High court is entitled in accordance with section 361(1) and (7) of the Criminal Procedure Code to appeal from that decision to the Court of Appeal, subject to the residuary control exercised by the Attorney-General over all criminal proceedings. The Court further observed:-
"Further, by section 361(1) of the Criminal Procedure Code any party to an appeal from a subordinate court may appeal against the decision of the High Court in its appellate jurisdiction to this court. A private prosecutor is such a party. Section 361(7) equates an order of the High Court made in its revisional jurisdiction with a decision made in its appellate jurisdiction. We are accordingly satisfied that a private prosecutor as a party to the proceedings in the High Court has a right to appeal to this court subject to the residuary control by the Attorney-General over every criminal case under the provisions of section 82 of the Criminal Procedure Code."
In addition, the Criminal Law Amendment Act of 2003 has made a provision in the Criminal Procedure Code for power of courts to order for costs against a private prosecutor under section 171 (1) Criminal Law Amendment.
Page 52 of 382
D.
LIMITATION OF TIME
Justice delayed is justice denied is a legal maxim but there is no legal prescription for the period constitutes "delay" in criminal cases nor is there any provision for redress of "denial" of justice due to delay, however, the constitution provides that such prosecution must commence within reasonable time. Section 77(1) of the Constitution of Kenya provides that;
"If a person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair bearing within a reasonable time by an independent and impartial court established by law". The question has always been: What period of time constitutes "reasonable" time? In general criminal prosecutors are never time barred except in special circumstances such as contemplated under section 219 of the Criminal Procedure Code which provides;-
"Except where a longer time is specifically allowed by law, no offence the maximum punishment for which does not exceed imprisonment for six months, or a fine of one thousand shillings, or both, shall be triable by a ‘surbodinate court’ unless the charge or complaint relating to it is laid within twelve months from the time when the matter of the charge or complaint arose".
The absence of time limit notwithstanding, criminal prosecution must be initiated promptly and without undue delay. This is because, any criminal prosecution is generally presumed to have the object of harmonizing the society and ridding it of activities perilous to social good. It would therefore defeat the Page 53 of 382
intention of good government, to bring in prosecution founded on a crime whose peril has waned due to the passage of time. In the words of Lord Shawcross, Britain’s Chief Prosecutor at the Nuremberg trial of Nazi war criminals, evidence given after a long lapse of time would be "unsafe after four weeks and hopeless after 40 years14". Such prosecution, may be construed to pursue not the establishment of peace and tranquility, but execution of personal, social or political vendetta and as the court observed in the case of R –v- Gray Justices ex parte Graham15:
"In our opinion, delay of itself, with nothing more, if sufficiently prolonged, could in some cases be such as to render criminal proceedings brought long after the events said to constitute the offence both vexatious and an abuse..."
There are, however, certain instances when institution of criminal proceedings against a suspect might be withheld for a long time while investigations are carried out. Morally, this is a better alternative to arresting a suspect and keeping him in remand under the pretext that investigations are still being carried out. But it offers no excuse for a prosecution to be brought against a person after a period of time when even some of the prosecution witnesses have died, and others can hardly remember what actually took place. Such action may prejudice an accused person to the extent that his constitutional rights under section 77 of the Constitution are abused. In the case of Stanley Munga Githunguri –vs- R16, the High Court of Kenya stated.:-
"There is no time limit to the prosecution of serious offences
14 15 16
See The Times, May 13, 1991, P53 (1982)3 All ER, at 653 Miscellaneous Application No. 2 of 1985, High Court, Nairobi, unreported. Page 54 of 382
except where a limitation is imposed by statute....In so far as the time limit is concerned the Attorney General is therefore free to prosecute provided he does not offend the fundamental rights conferred by section 77(1) as protected by section 84(1) of the Constitution".
The underlying principle in the above case is that the prosecution must be brought within a reasonable time. Although the issue of "reasonable" time is to be judged by the circumstances surrounding each particular case, courts will generally be reluctant to entertain delayed prosecutions in absence of proper explanation for the delay. The delay itself must be reasonable.
CONCLUSION
The following points are demonstrable from the foregoing that:-
(i)
The state through the Attorney-General, has an overall and residuary
control over all criminal prosecutions in Kenya. This has its basis both in the Constitution and the Criminal Procedure Code. It is however more pronounced in criminal appeals.
(ii)
In cases in which a public prosecutor (the Attorney-General) does not wish to commence criminal proceedings, a special provision is made under sections 88 and 89 of the Criminal Procedure Code to enable a private individual to institute criminal proceedings by a complaint made to the Magistrate. Before the Magistrate grants permission for private prosecution, he must be satisfied that prima facie the commission of an offence has been disclosed and the complaint is neither frivolous nor vexatious. Page 55 of 382
(iii)
The right to private prosecution is a constitutional safeguard against inertia or partiality on the part of authority and it is the best legal check against corruptible laxity on the part of the state to initiate criminal proceedings against suspected offenders.
(iv)
Although permission of the Magistrate is a statutory requirement before a
private prosecution is commenced, such prosecution is not rendered invalid for want of permission of the Magistrate. Provided that no objection is raised to the absence of formal permission from the Magistrate to the institution of such proceedings until after the close of the prosecution case, such permission may properly be inferred from the fact that the trial has been allowed to proceed this far.
(v)
The underlying principle of private prosecution is that the Private Prosecutor must have a locus standi such that his complaint is not one merely founded on political or other personal considerations.
Page 56 of 382
CHAPTER TWO
METHODS OF CONTROLLING PROSECUTIONS
A. INTRODUCTION
The power of controlling prosecutions is vested in the Attorney General under section 26(3) of the Constitution.1 The major methods of control are the instruments of nolle prosequi and withdrawal. The former entitles the Attorney General to take over and continue any criminal proceedings and the latter empowers him to withdraw proceedings at any stage before judgment is delivered.
B. NOLLE PROSEQUI
A Nolle Prosequi is a statement that the Republic intends to discontinue the proceedings and is entered by the Attorney-General. In the case of crispus njogu-vs-the attorney general2 a nolle prosequi was defined to mean :
A Nolle Prosequi is procedural device which has its origins in English Common Law. Under English Constitutional System the monarch is the constitutional head of the courts.
The powers to commence and terminate proceedings lies with the
1
2
See the Constitution of Kenya (1998) 1992. Text See also Chapter 1, Supra. The government has created the office of the Director of Public Prosecutions (DPP) but this has not removed the Attorney-General from his position as the overall in charge of prosecutions. It is arguable that the office of DPP as currently constituted is no more than an administrative office and should not be confused with the office of the DPP in a place like England where the DPP actually directs prosecutions High Court of Kenya, Criminal application No. 39 of 2000 Page 57 of 382
monarch. A nolle prosequi becomes merely a procedural device through which the monarch can exercise her prerogative powers to end criminal proceedings and because the monarch is the constitutional head of the courts, a nolle prosequi entered by the Attorney General personally as the monarch’s minister cannot be challenged in any English courts.
The Attorney-General may enter a nolle prosequi at any stage of the proceedings before verdict or judgment. No criminal proceedings are terminable after judgment, which means that the power of the state to discontinue proceedings by nolle prosequi is only exercisable in the court of first instance. In a murder case for instance, a nolle prosequi may be entered in the trial in the High Court. There are two modes of entering a nolle prosequi under the Criminal Procedure Code. First, the Attorney-General may state it in court or in he may inform the court in writing that a nolle prosequi has been entered3. Once a nolle prosequi is entered, it stays the proceedings in respect of which it was entered sine die and discharges the accused person(s). It is the most formidable power exercisable by the State in the realm of the Criminal Law. Neither the Constitution nor the Criminal Procedure Code attaches any preconditions to its exercise In practice the bulk of prosecutions are conducted by State Counsels and Police Prosecutors all of whom are subject to his (Attorney-General's) directions ,therefore, Under the Criminal Procedure Code, any State Counsel or Prosecutor may withdraw any criminal prosecution under his charge, but such withdrawal is subject to consent by the court4 ,However, 'Nolle Prosequi' is different from such withdrawal in that it is not subject to any form of control by the courts and is a power exclusively vested in and exercisable by the Attorney-
5 4
Section 82(1) of Criminal Procedure Code (Cap 75). Section 87 of Criminal Procedure Code (Cap 75). Page 58 of 382
General unless he delegates in writing pursuant to section 83 of the criminal procedure code to his senior surbordinates - Solicitor-General, The Deputy Public Prosecutor or a State Counsel. The import of this proviso is that the Attorney General should only delegate this power to those officers temporarily. When an accused is discharged following the entry of nolle prosequi such discharge is no bar to subsequent proceedings on account of the same facts. If the accused is not before the court when a nolle prosequi is entered, the Register or Clerk of the court in which the Nolle Prosequi has been entered must forward a notice to the head of the prison where the accused is held. A central feature of ‘Nolle Prosequi’ is that it overrides Judical control,generally,no reasons are in law required for its entry in any particular proceedings, and in practice no reason is seldom given.This matter has recently received judicial consideration in the case of Crispus Karanja Njogu –vs- AG5, where the question for determination by the High Court was whether the court is entitled to know the reasons why the Attorney-General or his agents seeks to enter a nolle prosequi. The Court held inter alia that the High Court pursuant to the provisions of Section 123 (8) of the Constitution is entitled to know the reasons why the Attorney-General or his agent seeks to enter a nolle prosequi. The Court stated as follows; “Thus, rightly contended, this court is the sole constitutional entity vested with the responsibilities rather than the Attorney General of ensuring that criminal justice system is not abused or used oppressively. This court does, for instance by inquiring whether the power of entering a nolle prosequi vested in the Attorney-General has been exercised in accordance with this constitution or any other law so that under our constitution the exercise of such powers of the Attorney-General
with respect to the
entering of a nolle prosequi can be questioned by the court… the power of the Attorney-General under Section 26(3) of the Constitution are subject to the
5
Supra note 2 Page 59 of 382
jurisdiction of the courts by virtue of Section 123 (8) of the Constitution. Where, therefore, the exercise of the discretion to enter nolle prosequi does not meet the test of constitutionality by virtue of Section 123 (8) of the Constitution then the nolle prosequi so entered will be deemed and declared unconstitutional.” The court held that pursuant to the provisions of section 123(8) of the constitution, the High Court is entitled to know the reasons why the Attorney General or his agent seeks to enter a Nolle Prosequi. In the subordinate courts however, the trial Magistrate is not entitled to question the discretion of the Attorney General to enter a Nolle Prosequi. The question is whether the Attorney General exercises this power as a Minister or as the Chief Prosecutor.
Although ‘nolle prosequi’ may be
characterized as a ministerial power supposedly subject to ultimate control by Parliament, the Attorney General, not being a Minister ‘sensu stricto’ does not share in the collective responsibility of Ministers to parliament; nor can he defend his acts as a Minister in Parliament.
Moreover, parliament cannot
criticize the Attorney General before he enters a ‘nolle prosequi’ since the proceedings are sub judice; nor can parliament actively question him after he has exercised the power since that would be Unconstitutional6 and contrary to the concept of separation of powers.7 Ultimately therefore, the question as to whether 'nolle prosequi' can possibly be used for objective purposes beneficial to the public interest may rest on the personal character and dynamism of the Attorney-General particularly in the absence of a delimitation of the areas in which it may be entered.
6
section 26 (8) See generally: Burin & Shell, 'Politics, Law and Social Change.' Selected essays of Otto Kircheimer, New York Columbia University Press, 1969. It is therefore arguable that Nolle Prosequi is a power 'sui generis' 7
Page 60 of 382
In Keynan Wehliye –vs- Republic8 It was held that there is a legally constituted office of the Director of Public Prosecutions. That the power to institute and undertake criminal proceedings and discontinue at any stage before judgement is bestowed upon the Attorney-General under Section 26 of the Constitution. This power is vested in the Attorney-General to the exclusion of any other person. The power to enter a nolle prosequi is given to the Attorney general under Section 82 of the Criminal Procedure Code under section 83 of the Criminal Procedure Code the Attorney General is empowerd to delegate his powers under that Act. The Officers to whom he may delegate are named thereof and absent in that list is the Director of Public Prsecutions . It therefore follows and we so find that the power to enter nolle prosequi Prosecutions.
is nto delegatable to the Director of Pubilc
That a nolle prosequi purporting to be signed by the
Director of Public Prosecutions. That a nolle prosequi purporting to be signed by the Director of Public Prosecutions is in our view invalid.
C. WITHDRAWAL Withdrawing from prosecution of trials before subordinate courts may be undertaken by a Public Prosecutor with the consent of the court or on the instructions of the Attorney-General at any stage of the trial but must be before judgment is pronounced9. Withdrawal takes two forms. First before the accused person has been called upon to make his defence in such a case, he is to be discharged but such discharge however is not a bar to any subsequent proceedings against
the accused on account of the same facts secondly
withdrawal may be made after the accused has already made his defence in
8
Criminal Case No. 223 of 2003 (Unreported) at the High Court of Kenya, Nairobi
9
Section 87 Criminal Procedure Code (Cap 75) Page 61 of 382
which case, he is to be acquitted10. In departure from the classical situations contemplated above, a number of cases have suffered withdrawal before being brought to court. Two cases illustrate the point .In the case of Clifford Derrick Otieno –vs- Lucy Kibaki11, Clifford a television cameraman filed a suit against the Lucy Kibaki (Kenya’s current First Lady) alleging assault and malicious damage to property at the Nation Media Group’s newsroom. However, even before the matter was entered into the court’s record, the
Director of Public Prosecutions(now deputy public
prosecutor) entered a nolle prosequi under the direction of the AttorneyGeneral. The Magistrate observed that “he feels that the ‘nolle prosequi’ goes against public expectations and tramples on the right of the vulnerable and hopeless in the society. Whichever way the court feels, it could complain about the circumstances of presentation but can not ever reject a ‘nolle prosequi’. That is the law and am bound by it.” ‘’ (ii)
Seanoi Parsimei ole Sisina and & Others –vs- Attorney-General12
Thomas Cholmondeley was charged with the murder of a Kenya Wildlife service warden at his Soysambu ranch but before the case could proceed to trial
the Attorney-General
withdrew
the murder charge citing
insufficient evidence to support and sustain the murder charge.
10
Ibid. No proceedings can be commenced against him on the same facts. Miscellaneous Application No. 5 of 2005 (unreported) at the Chief Magistrate’s Court in Nairobi. 12 Criminal Case No. 345 of 2005 at the High Court of Kenya in Nakuru. 11
Page 62 of 382
CHAPTER THREE ARREST
A. INTRODUCTION The Criminal Procedure Code1 does not define an arrest ,however, sections 21 and 24 of the Code shed some light on what an arrest is. Section 21 provides that in making an arrest the arresting person shall actually touch or confine the body of the person being arrested unless that person submits to custody either by word or by conduct2. Section 24 states that the arrested person must not to be subjected to more restraint than is necessary to prevent his escape. The effect of these two sections is to define an arrest as a restraint, whether by actual touching or merely by confining person on commission of a crime or on suspicion of a crime having been committed or in order to prevent the commission of threatened crime. In the event of resistance the person arresting may use all means necessary to effect arrest3, including reasonable use of force4, therefore, it is not necessary to handcuff or tie a suspect who has submitted to custody by word or conduct and intends to cause no trouble. Another requirement of a lawful arrest is that the person arrested should be informed of the reason for his arrest5, however, if the circumstances are such that the arrested person
1 2 3 4 5
Cap 75, Laws of Kenya Section 21(1), Criminal Procedure Code (Cap 75 Law of Kenya). Section 21(2), Criminal Procedure Code (Cap 75 Law of Kenya). Section 21(3), Criminal Procedure Code (Cap 75 Law of Kenya). Mwangi s/o Njoroge v R (1954) 21 EACA377: (F.Wheatley v Lodge (1971)1 All E.R 173 Page 63 of 382
ARREST
must know the nature of the offence for which he is detained, it is not necessary to inform him of the reason for his arrest6. The same applies where the suspect runs away or resorts to attacking his arresters7. The powers given to law enforcing agencies such as the police, are exclusively for lawful purposes and must be exercised reasonably. There are remedies in civil and criminal law to victims of unlawful arrest but this will depend on whether the arrest was with or without warrant .
B. ARREST WITHOUT WARRANT
(i) By A Police Officer Most arrests are effected by police officers as part of their duty of maintaining law and order8. The powers of the police in respect of arrests, prevention of crime and investigation of offences are governed by the provisions of the Criminal Procedure Code and other laws9. Under the Code10, a police officer may arrest without a warrant, any person he reasonably suspects of having committed a cognizable offence. He may also arrest without a warrant any person who commits a breach of the peace in his presence. Any person who obstructs a police officer while in the execution of his duty or who has escaped or attempts to escape from lawful custody may be arrested without a warrant. Further a police officer may arrest without a warrant any person possessing anything which may reasonably be suspected to be stolen property. He can also without a warrant arrest a person who is a deserter from the armed
6 7 8
9 10
Christie v Leachinsky C\9A7).C. 573, (1946) KB 124 Ibid See section 14, Police Act Cap.84 and section 8(a), Administration Police Act Cap.85. See Part III, Criminal Procedure Code (Cap 75). See Section 29, Criminal Procedure Code (Cap 75). Page 64 of 382
forces. He may also arrest any person he finds in a highway, yard or other place during the night and whom he reasonably suspects of having committed or being about to commit a felony. Likewise, he may arrest any person who has in his possession any implements for housebreaking. Further, he may arrest any released convict committing a breach of any provision by virtue of section 344 which relates to conditions imposed on such people while under police supervision. Finally, under section 29 of the Code, a police officer may arrest without a warrant any person for whom he has reasonable cause to believe a warrant of arrest has been issued. And according to section 30, vagabonds, persons who, by repute, are habitual robbers, thieves and those who are commonly associated with other crimes of dishonesty, may be arrested by a police officer without a warrant.
Section 32 provides that even if a person has committed a non-cognizable offence, a Police officer may arrest him without a warrant if upon demand he refuses to disclose his name and other particulars. If a person is arrested without a warrant he must be taken before a Magistrate, or officer in charge of a police station as soon as possible11. If the arrested person is brought before the officer in charge of a police station, the officer may inquire into the case and release the person on bond unless the offence is treason, murder, robbery with violence or attempted robbery with violence, or the offence is found to be of a serious nature12. If however, the officer is satisfied that there is not sufficient evidence against the prisoner, he may set him free altogether. Thus the power for absolute discharge is discretionary but officers in charge of police stations must report to the nearest Magistrate, the cases of all persons arrested, with or without a warrant in their
11 12
Section 33, Criminal Procedure Code (Cap 75 Laws of Kenya). Section 36, Criminal Procedure Code (Cap 75 Laws of Kenya). Page 65 of 382
areas13.
(ii) Arrest By Magistrate According to section 38 of the Criminal Procedure Code a Magistrate may personally arrest or cause to be arrested any person who commits an offence in his presence in the local limits of his jurisdiction. Thereafter he may release the offender on bail or commit him to custody14, Similarly, he may arrest or direct the arrest in his presence, within the local limits of his jurisdiction, of a person whose arrest he is competent at the time and circumstances to issue a warrant15. In effecting an arrest, the Magistrate acts as a judicial officer and not in. a ministerial capacity16. His actions are therefore protected by judicial immunity and he cannot, in law, be subjected to criminal or civil proceedings.
Section 42 of the Criminal Procedure Code imposes an obligation, on everyone to assist a police officer or Magistrate who, in execution of his duties, reasonably asks for such assistance. This means that an unreasonable request, for example, a request which may endanger the life of the person whose assistance is asked for, can be turned down with impunity.
(iii)
Arrest By A Private Person
Section 34 (1) of the Criminal Procedure Code empowers a private person to arrest any person who, in his view, commits a cognizable offence or whom he reasonably suspects of having committed a felony. This power, of course, must be exercised reasonably as the use of unreasonable force in order to effect an
13 14 15 16
Section 37, Criminal Procedure Code (Cap 75 Laws of Kenya) Section 38, Criminal Procedure Code (Cap 75 Laws of Kenya), Section 39, Criminal Procedure Code (Cap 75 Laws of Kenya). See Kionywaki v. R (1968) EA 195 (High Court of Tanzania). Page 66 of 382
arrest may lead to criminal and civil liability for assault and false imprisonment respectively17. The most obvious instance where this power is readily exercised is where the owner of property or his servants arrest a person found committing a crime against such property. Usually, a person would, with due regard to his own safety, set upon the criminal and arrest him.
(C) ARREST WITH WARRANT In some cases it becomes necessary to secure the appearance in court of an accused person by issuing a warrant for his arrest. This occurs when criminal proceedings are commenced by a police officer or a public prosecutor first laying a charge in court or by private complaint18. The court may then issue a warrant for the arrest of the person against whom the charge has been preferred. Similarly, a warrant of arrest will almost certainly be issued by the court for witnesses who have been bonded but fail to turn up to give evidence, and for accused persons who have jumped bail or absconded.
Section 102 of the Code requires that a warrant of arrest be in writing, signed by the Magistrate and bearing the seal of the court. The warrant must state briefly the charge against the suspect and describe his details. It shall also order the person or persons to whom it is directed to apprehend the person against whom it is issued and bring him before the court issuing the warrant, or before some other court having jurisdiction in the case. Once issued, the warrant remains in force until it is executed or cancelled by the court which issued it.
Any person or police officer to whom a warrant is issued is bound to execute it. In so doing he, like the court which issues the warrant, is protected by judicial
17 18
Section 250 of the Penal Code (Cap 63.). Also see the law of Torts generally M'lmbui v Dyer (1967) E.A. 315 (High Court of Kenya). Page 67 of 382
immunity19. Under section 105 of the Code, a warrant may be directed to a landholder, farmer or manager of land. The warrant is Issued by a Magistrate empowered to hold a subordinate court of the first class within his jurisdiction. It directs such persons to arrest an escaped convict or a person accused of a cognizable offence who is hiding on his property. A person arrested in this manner must be handed over to the nearest police officer who shall cause him to be taken before a Magistrate with the requisite jurisdiction. A warrant is invariably directed to a police officer whose name is endorsed on the warrant by the officer to whom it is directed or endorsed20. The person executing the warrant must inform the person arrested of its substance and show him the warrant if asked to do so. Upon being arrested the accused must be produced before the court requiring his attendance without delay21. A warrant of arrest may be executed in any place in Kenya 22. However, if a warrant is executed outside the local limits of the jurisdiction of the issuing Magistrate, the person arrested must first be brought before the court in whose jurisdiction he was arrested unless the court issuing the warrant is only 20 miles from the place of arrest or is nearer than the court within whose local limits of jurisdiction arrest was made23. The Magistrate before whom the arrested person is brought will cause his removal in custody to the court which authorized his arrest if he is satisfied of the person arrested. The Magistrate may release such a person on bail unless he is arrested for murder, treason, robbery with violence or attempted robbery with violence.
19 20 21 22 23
(1956) EACA 480 from 482 Section 106, Criminal Procedure Code (Cap 75). Section 108, Criminal Procedure Code (Cap 75 Laws of Kenya). Section 109, Criminal Procedure Code (Cap 75 Laws of Kenya). Section 112, Criminal Procedure Code (Cap 75 Laws of Kenya). Page 68 of 382
(D) OTHERS
Besides the police, ordinary courts and private persons, other tribunals which exercise quasi-judicial powers such as the Rent Restriction Tribunal and Judicial Commissions of Inquiry have powers to issue warrants of arrest24. Likewise, every officer of the National Assembly is vested with police powers under the National Assembly (Powers and Privileges) Act25. In exercising this power, the speaker or any officer of the National Assembly is not subject to the jurisdiction of any court26.
(E) CONCLUSION Ideally, the Police Force as a State institution, is required to ensure public order and tranquility. In exercising the powers of arrest, police officers must therefore comply with the prescription of Kenyan law.
24
25
26
See Republic v Zablon Ogalo Obonyo, Criminal Case No. 24 of 1991, Principal Magistrates Court, Kisumu Section 30, National Assembly (Powers and Privileges) Act, Chapter 179 of the Laws of Kenya. Ibid section 29. See also Attorney-General v. Times Newspapers Ltd. (1973)1 All ER 815. Page 69 of 382
CHAPTER FOUR
SEARCHES AND SEARCH WARRANTS
A. INTRODUCTION A search warrant is an authority to search a place for evidence of a crime which is suspected or believed to have been committed or to make an arrest of a suspected criminal. A search warrant authorises the person to whom it is addressed to enter by force if necessary, the place or premises described therein for that thing and if the thing be found to seize it and take it before a court having jurisdiction to be dealt with according to the law1. If a police officer has reasonable suspicion that there is evidence in any place or premise which he considers necessary for the investigation of a case, he may apply to the court to issue a search warrant authorising him to search the place or premises. Evidence of reasonable grounds is necessary and must be given on oath. A search warrant maybe issued on any day including Sunday between the hours of sunrise and sunset although the court may by warrant authorize the police officer or other person, to whom it is addressed to execute it at any hour2.
B. SEARCHES WITH A SEARCH WARRANT Section 120 Criminal Procedure Code imposes an obligation upon a person in charge of a closed place to allow ingress and egress to a police officer wishing to execute a search warrant, failure to which entitles the police officer to use force3.
1 2 3
Section 118 of Criminal Procedure Code (Cap 75 Laws of Kenya). Section 119, Criminal Procedure Code (Cap 75 Laws of Kenya). Section 22 and 23 Criminal Procedure Code (Cap 75 Laws of Kenya) Page 70 of 382
The direction in the search warrant must be strictly observed.
The
articles which are not mentioned in the warrant should not be seized unless such unnamed articles are likely to provide additional evidence as to the identity of such articles or which at least have some relevance in the charge against the accused person. A warrant shall be under the hand of the Judge or Magistrate issuing it and shall bear the seal of the court.4 It shall state the offence with which the person against whom it is issued is charged. A search warrant may be directed to one or more police officers of the area within which the court has jurisdiction or generally to all police officers of the area5. If it is directed to more than one person it may be executed by all or by any one of them. A search warrant directed to a police officer may be executed by another police officer whose name is endorsed upon the warrant by the officer to whom it is directed or endorsed6. It may be executed at any place in Kenya7. When a search warrant directed to a police officer is to be executed outside the local limits of the jurisdiction of the court issuing it, he shall take it for endorsement to a Magistrate within local limits of whose jurisdiction it is to be executed. The Magistrate to whom a search warrant is so forwarded shall endorse his name thereon and the endorsement shall be sufficient authority to the police officer to whom the warrant is directed to execute it within the local limits and the local police officers shall if so required assist that officer in executing the warrant8. If there is reason to believe that delay will be occasioned by obtaining
4 5 6 7 8
Section 102, Criminal Procedure Code (Cap 75 Laws o'f Kenya). Section 104, Criminal Procedure Code (Cap 75 Laws of Kenya). Section 106, Criminal Procedure Code (Cap 75 Laws of Kenya). Section 109, Criminal Procedure Code (Cap 75 Laws of Kenya). (1957)EA355. Page 71 of 382
endorsement, it will be executed without endorsement in any place outside the local limits of the jurisdiction of the court which issued it. The seizure of irrelevant articles is legally unjustified and may damage the prosecution case. In order to prove to the court that the articles seized were from the accused, it is necessary to prove the contents of the warrant. In Mohanlal Trivedi -v- R9 the appellant was convicted by the district court of Busoga of being in possession of property reasonably suspected of having been stolen and failing to give a satisfactory account of his possession. The police acting on information received, searched the house and shop of the appellant for a camera. They did not find the camera but found an exposure meter which was the subject matter of this charge. At the appeal, it was contended that the conviction ought not to stand as no search warrant was produced and there was no evidence to show that the appellant's house and shop were the buildings named in the warrant. The officer who conducted the search gave evidence to the effect that he obtained a search warrant and searched the premises of the appellant named therein. It was held that it was impossible to establish that the search was conducted under the authority of a warrant without proving the contents of a warrant and evidence that the house searched was the one named, in the warrant cannot be proved, by secondary evidence in section 63 (equivalent to section 68 K.E.A) of the Evidence Act. Thus for the prosecution to succeed, it is imperative to prove the contents of the search warrant by actually producing it in evidence. This decision is germane as it is in pari materia.
C. SEARCHES WITHOUT A SEARCH WARRANT Section 22 of the Criminal Procedure Code authorises a police officer to
9
Section 111, Criminal Procedure Code (Cap 75 Laws of Kenya). Page 72 of 382
search a place entered into by a person sought to be arrested without a search warrant if obtaining the warrant would afford the person sought to be arrested an opportunity to escape. Section 26 gives a police officer or other person authorised in writing in that behalf by the Commissioner of Police power to detain and search aircrafts, vessels, vehicles and persons if he has reason to suspect that it contains stolen property or property unlawfully obtained. He can also seize any property found on a person after search. However, the application of this section is called into question when a police officer after stopping and searching, proceeds to charge the person searched with an offence under section 323 of the Penal Code. On a charge such as this, the prosecution must satisfy the court that there was reasonable suspicion before the vehicle, person, e.t.c. was stopped and searched; suspicion must precede stopping. Suspicion arising after stopping will render the action of the police illegal under section 26 Criminal Procedure Code. There need not be a precise suspicion about anything stolen, it is enough if in the circumstances there is reason for such suspicion. In Kityo -vs- Uganda10 the appellant was charged with being in possession of parts of motor vehicle suspected of having been stolen. On stopping the vehicle the police officer told the appellant that he was suspicious about the way he (the appellant) had been moving around Kampala and wanted to check his car. His morris minor was searched and motor vehicle parts suspected of having been stolen were found fitted on his vehicle. Prior to the stopping all the police stations in Kampala had been alerted to watch the movements of this particular car. It was noted that at every place frequented by the appellants car, there was always theft of Morris Minor cars or their parts. Eventually the appellant was
10
(1967) EA 23. Page 73 of 382
charged and convicted. On appeal it was argued on his behalf that he was not stopped and searched on any particular suspicion and that if there was any suspicion at all it was not a reasonable one. It was further argued that the prosecution had not proved that the motor vehicle parts found in the appellant's car were the subject of suspicion. Dismissing the appeal Sir Udo Udoma CJ said that it is not necessary that at the time of the stopping and searching the police officer must have in mind a precise suspicion about anything stolen or unlawfully obtained provided the circumstances are such that there is reason for suspicion. It is a traditional approach of the courts that a person charged with an offence under some sections, a plea of guilty cannot be accepted under any circumstances. The procedure has been that after reading and explaining the charge to the accused, the evidence on which the prosecution relies on ought to be heard and then the explanation of the accused if any. If he/she cannot give an account to the satisfaction of the court as to how he/she came to be in possession of the goods reasonably suspected to be stolen, then he/she can be convicted of the offence. According to Saeid, CJ this rigid approach does not take into account accused persons who through admitting suspicious possession as alleged in the charge, stubbornly refuse to offer any explanation whatsoever. In Koech -v- Republic11 the said judge said: “I have set out this portion of the judgement exclusively to emphasise that procedure suggested in no way offends against what has consistently been held by this court, yet it provides the flexibility which is in my opinion, so obviously desirable. It is not altogether uncommon for a situation to arise where a person accused of an offence under this section admits everything and stubbornly insists on offering no explanation whatever for his possession of the suspected goods.
11
(1968) E.A 109. Page 74 of 382
“I see no useful purpose being served in such a case of strictly adhering to the long line of previous authorities which not only frown upon acceptance of a plea of guilty but are clearly totally against it. If the procedure set out in Koech with which I respectfully agree is followed and practised scrupulously, I see no compelling or valid reason accepting a plea of guilty to an offence under section 299 (equivalent to section 323) of the Penal Code. It will be noticed, that sufficient safeguard exists in this procedure for protection of an accused person who does not understand the nature of the charge but where no such difficulty arises and, the accused, of his own volition and free will admits each and every assertion and also declines to offer any explanation when asked for, I think that in such circumstances a plea of guilty may rightly and properly be entered”.
D. CONCLUSION The principle underlying instances of search is to consider on the one hand the freedom of the individual; his privacy and his possessions are not to be invaded except for the most compelling reasons. On the other hand, the interest of society at large in finding out wrongdoers and repressing crime. Honest citizens should help the police and not hinder them in their efforts to track down criminals. In order to achieve this societal interest, the following requisites must be satisfied:
1 . The police officers must have reasonable grounds for believing that it is a serious offence. 2.
The police officers must have reasonable ground for believing that the
article in question is either the fruit of the crime (as in the case of stolen goods) or is the instrument by which the crime was committed, or is to be committed or is material evidence to prove the commission of the crime. 3.
The police officers must have reasonable grounds to believe that the Page 75 of 382
person in possession of it has himself committed the crime or is implicated in it or is accessory to it or at any rate his refusal must be quite unreasonable. 4. The police must not keep the article nor prevent its removal, for any longer than is reasonably necessary to complete their investigation or preserve it for evidence. 5. The lawfulness of the conduct of the police must be judged at the time and not by what happens afterwards.
Everyman is presumed to be innocent until he is found guilty. If his house is to be searched and his property seized on suspicion of an offence, it must be done by due process of law. And due process demands that there must be a valid warrant and the seizure is limited to those things authorised by the warrant. In the recent case of Royal Media -vs- Telkom Kenya12 The Court held that there would be no justification whatsoever where in carrying out a search, the defendant takes away more than is necessary in the circumstances. There was no evidence whatsoever in this case that the persons who executed the search warrants acted with excessive force or that they took away more than was necessary for the purpose.
12.[2001]1 EA 210 Page 76 of 382
CHAPTER FIVE BAIL A.
INTRODUCTION Unless it falls within the specified legal exceptions, interference with the
liberty of an individual is unconstitutional. The law guards against such interferences and in order for it to carry out its role of a guardian more effectively, the law is aided by criminal procedures. Among these procedures is bail, whose object is to shield the individual from pre-trial incarceration. Thus a person who is arrested for violating any of the state-laws should except in very few cases be entitled to pre-trial release. Bail has its roots in the legal system of Anglo-Saxon times. It probably arose out of medieval sheriffs' desire to avoid costly and troublesome burden of personal responsibility for those in their charge. Sheriffs commonly released a prisoner either on his own recognizance, with or without requiring some form of bond or on the promise of a third party, to assume personal responsibility for the appearance of the accused at trial1. The sheriffs were heavily fined for the escape of a prisoner. In the Norman times, there was a difference between bail and what was then called a mainprise. The latter involved surety in a less stringent degree of responsibility in that he was liable. Further, a person admitted to a mainprise was not considered to be in custody and the sureties could not discharge their responsibilities by seizing the principal and returning him to custody. With time, the distinction between bail and mainprise became blurred. The sheriffs had wide discretionary powers and it was recognized that there ought to be guidelines for the exercise of these powers. "The sheriff should exercise his discretionary powers having regard to the importance of the charge, the character of the person and the gravity of the evidence against
1
Yale Law Journal Vol. 70 at 966 Page 77 of 382
him.”2 These factors still hold supreme to date.
In 1275, a first enactment was undertaken in the Westminster statute with the aim of reducing abuse by the sheriffs of their wide powers to refuse bail. The enactment systematized and codified the ad hoc arrangements between the sheriffs and the principal (the accused) with the hope of standardizing the practice of bail.3
The above surety system was capable of abuses. First, those who offered themselves as sureties were either insufficient or secondly they took upon themselves the names of other persons ability. No wonder an Act of James 1 provided for the punishment of false and insufficient sureties.
B.
BAIL IN KENYA In Kenya, the law relating to bail is founded on the Constitution and the
Criminal Procedure Code. Bail may be defined as an agreement between the accused (and his sureties as the case may be) and the court and that the accused will pay a certain sum of money fixed by the court should he fail to attend his trial.4 The law on bail in its skeleton form is laid down in the Constitution. This is in respect to the constitutional right to individual liberty5, section 72 of Constitution. No right has been known to be absolute and the right to personal liberty has been qualified.6 A person may be arrested and his liberty curtailed by a police officer if he has reasonable suspicion that the person is about to
2 3 4
5 6
Redcliffe - The English Legal System and Bail Procedures in magistrate's courts supra note no. 1 at 966. Douglas Brown, Criminal procedures in Uganda and Kenya, 1970, (Sweet and Maxwell, London) (2nd Ed). Section 72 of the Constitution (1998) 1992 Text Ibid, Section 72 (1)(d). Page 78 of 382
commit a felony or has committed it. 'The interpretation of reasonable suspicion' as given in M’Ibui –vs- Dyer7 seems to suggest that even if the suspicion is incorrect, it matters not so long as it was reasonable in the circumstances. The effect of para (e) of section 72 Constitution is to give wide discretionary powers to the arresting officers, the consequences of which are that the individual's liberty is greatly compromised as he may be restrained in custody while sufficient evidence is being sought against him. This provision is susceptible to abuse and section 72(3)(b)8 of the Constitution is intended to remedy any such abuses. The case of pre-trial liberty is dealt with in section 72(5) which states that: Unless one is charged with a capital offence:-
"If a person arrested ... is not tried within a reasonable time, then, without prejudice to any further proceedings that may be brought against him, he shall be released either unconditionally upon reasonable conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial".
This subsection implies that the right to bail is conditional upon several factors, as read together with the provisions of the Criminal Procedure Code (Cap 75).
1.
It should be granted if the trial does not occur within a reasonable time. If this is true, then it would seem that many of the releases granted on bail are unconstitutional because they are granted on the first day of appearance. While interpreting a similar Ugandan provision, Kiwanuka C.J (Ag) in Musoke –vs- Uganda noted in the East African Court of
7 8
(1967)EA315. The arrested person be brought to court as soon as is reasonably practicable. Page 79 of 382
Appeal that:
"The might of the provision is centred on the phrase within a reasonable time, and the provision was meant to apply to a case like the present one where the hearing had been previously fixed twice and then just because the charge is amended and amended in the manner provided...,, the file is shelved for several months. In those circumstances, the accused was entitled to bail. There was excessive delay in bringing him to trial".
2. If it will not be prejudicial to the proceedings. If it is shown that he is likely to abscond, bail may be denied. Prejudicing the proceeding's may also assume the form of interfering with witnesses.
3.
By virtue of section 123(1) of the Criminal Procedure Code, a person will not be granted bail if he is charged with either the offence of murder, treason, robbery with violence, or attempted robbery with violence.
The right to bail may be invoked at any stage of the proceedings, as provided by the Criminal Procedure Code at section 123(1). The question of bail involves, a delicate balance between two competing values: the welfare of the society sought to be protected and fairness to the accused. It has been argued that in capital offences, owing to the mandatory death penalty upon conviction a person is especially tempted to abscond, tamper with witnesses or even unleash more harm to the society9. Therefore, there is need to
9
See Muli J. argument in 'Kenya Times', Nov 18th, 1987. Page 80 of 382
give such offences a strict treatment10. Before the 1987 amendment11, the Constitution provided that any person could be admitted to bail whether conditionally or unconditionally so long as his subsequent attendance was assured. The first amendment affecting subsection (3) came in 1978. The section which allowed the High Court to grant bail in any case if circumstances deemed it necessary was amended to read:
"The high court may in any case save where a person is accused of murder or treason, direct; that a person be admitted to bail or the bail required by a subordinate court or police officer be reduced12.
This greatly eroded the discretion of the High Court because under both subsections (1) and (3) of section 123 if a person was charged with murder or treason, he could not be granted bail under whatever circumstances. The subsection as amended created a contradiction. It meant that whereas under subsection (1) four offences murder, treason, robbery with violence and attempted robbery with violence were non-bailable, under subsection (3) only two, murder and treason were non-bailable. It was therefore quite possible for a person charged with robbery with violence or attempted robbery with violence to be denied bail under sub-section (1) but get it under sub-section (3) because in subsection (3) allowed bail in any case save murder and treason. The lacuna, created in the 1978 amendment was filled in 1984 and sub-section (3) was amended to make it tally with sub-section (1). By Act No. 19 of 1984, robbery with violence and attempted robbery with violence were made non-bailable.
10 11 12
Constitution of Kenya (Amendment) Act of 1987. Constitution of Kenya (Amendment) Act No. 20 of 1987. Statute Law (Miscellaneous Amendments) Act No. 13 of 1978. Page 81 of 382
The effect of this quick development was to make the four offences nonbailable under both sub-sections. This status was temporary. In the following year (1985) a Constitutional court in the case of Margaret Magiri Ngui v R13 declared section 123 of the Criminal Procedure Code inconsistent with the constitution and therefore null and void by virtue of section 3 of the Constitution. In the case Margaret Magiri Ngui was together with others charged with robbery with violence, which was not a bailable offence in terms of section 123 of Criminal Procedure Code. While in custody, she suffered severe ulcers and high blood pressure. She applied for bail, which was refused. An application was made to the High Court under section 84(1) of the Constitution challenging the constitutionality of section 123 of Criminal Procedure Code. It was argued on her behalf that in denying bail to persons accused/charged with capital offences, the section was inconsistent with section 72(5) of the constitution which allowed bail to persons charged with all offences. It was further contended by the applicant that the classification of offences into bailable and non-bailable was a feature alien to the constitution. The constitutional court agreed with this argument and held section 123 to be inconsistent with the constitution and declared it to be null and void. The court then proceeded to consider the application on merit having first found it had power to grant or refuse bail. It held that bail, as a general rule, should not be granted where the offence charged carries a mandatory death penalty because the temptation to abscond in such cases is very high. The court thus refused to release the applicant on bail. In order to give effect to the ruling of the constitutional court, Act No. 19 of 1985 repealed the words: "Save where a person is accused of murder, treason, robbery with violence or attempted robbery with violence" in subsection (3) and substituted the words with "in any case whether or not
13
Criminal Appeal No.59 of 1985. High Court of Kenya, Nairobi, unreported. Page 82 of 382
an accused has been committed for trial". This erased the classification of offences into bailable and non-bailable. Section 123 (3) Criminal Procedure Code was amended by deleting sub section (3) Act. No. 5/03 to read as below: Section 123(3) The High Court may in any case direct that an accused person be admitted to bail or that bail required by a subordinate court or police officer be reduced.
C. CONSTITUTION OF KENYA (AMENDMENT) ACT NO. 20 OF 1987
By this Act, section 72(5) of the Constitution was amended by repealing:-
"... he shall be released either unconditionally or upon reasonable conditions,..." and replacing it with"... he shall, UNLESS he is charged with an offence punishable by death, be released either unconditionally or upon reasonable conditions".
This amendment had far reaching implications. It not only re-introduced the pre-1985 reality of bailable and non-bailable offences but greatly worked to defeat the original jurisdiction (unlimited) of the High Court given to it under section 60(1) of the Constitution. It therefore meant that the criterion for granting or refusing to grant bail is not the merits of each particular case but the punishment to be meted out to the accused upon conviction. In moving this Bill, the Attorney-General advanced several arguments which have since been found wanting. The Attorney-General argued that if the Bill was not approved, courts would readily grant bail in capital offences which would prejudice the administration of justice owing to their grave implications. However, this argument holds no water as courts are still very cautious when Page 83 of 382
granting bail to non-capital offenders. In fact, in the Margaret Magiri14, case, the court observed inter-alia that;
"... bail, as a general rule should not be granted where the offence charged carries a mandatory death penalty, as great is the temptation to jump bail in such cases,". Further, in the case of Eliud Mwaura -v- R15 the applicant was denied bail although he had been incarcerated for more than eleven months before his trial. This shows how seriously courts treat the issue of bail to a capital offender and it was therefore not a viable argument that courts do readily grant bail to such offenders as to warrant its discretion to look at each case on its own merits to be taken away.
D. THE ABOLITION OF THE DISCRETION OF THE HIGH COURT
The abolition of discretion of the High Court in granting or refusing to grant bail in capital offences has been highly criticized. In England, Michael Zander, a renowned English scholar has argued that it has prejudicial consequences for the person, he observes;
"... the mere fact of being imprisoned may have an effect on one's prospect in the criminal justice system16".
The accused lacks free and unrestricted constant consultation with his
14 15 16
Ibid. Eliud Mwaura -vs- Republic, Criminal Application No. 446 of 1986. Michael Zander, Cases and materials on English legal System," London, Weidenfield & Nicholas, 1988 (5th Ed), at 239. Page 84 of 382
counsel. His ability to gather evidence and consult with his witnesses is made a myth'. A second criticism is that it is unfair to an accused who is ultimately acquitted. A person may be charged with murder but after trial it emerges that it was a clear case of manslaughter which is a bailable offence, and the accused having been remanded for a long period can legitimately claim to have been unfairly treated. It is also unfair because the Kenyan legal system makes no provision for compensation in cases of unfair remand of an accused person nor is the court enjoined to take the remand period into cognizance while meting out sentence. A third criticism of the strict 'non bail' characters of capital offences is that it is an unnecessary burden on the prisons since the accused becomes a permanent inmate for as long as the case has not been finally determined. This increases prison expenditure by caring for inmates who are not contributing to the prison's income17. To this drawback on the financial standing of the prison, overcrowding is added. It is equally posited that capital offence trials take long to be determined and pre-trial bail ensured that in deserving cases, the accused persons do not suffer unduly through no fault of theirs18. The denial of bail also negates presumption of innocence. An accused person is deemed innocent until he is proved otherwise or he pleads guilty19. However, after the 1987 amendment, the accused is in theory treated as innocent but in practice he is treated as a convict and put in remand all along. Furthermore, the consequences of the amendment have been termed as inhuman. This is so because it totally ignores the individual circumstances of a case and merely focuses on the punishment to be meted upon conviction. Yet as
17 18 19
Michael Zander, "Bail, A re-Appraisal", (1965) C.L.R,25. See Nairobi Law Monthly, No. 31 March 1991, at 35. See Constitution section 77(1 )(b). Page 85 of 382
Bosire, J said in Eliud Mwaura -v- R, “In certain cases, there may well exist exceptional or special circumstances personal to the applicant which when weighed against the risk of the applicant absconding if released on bail, the balance will tilt in favour of granting bail.”20
In England, bail has been granted where it otherwise ought not to have been granted on account of ill-health.21
E.
PRE-TRIAL BAIL Much of the criticism concerning bail decisions has centred around the
adequacy or otherwise of the information available to the court about the defendant and his ties with the community, personal relationships, residence, employment etc. Pre-trial bail is significant in the judicial process and if a presumption is to exist in its favour, the question which arises is in what circumstances is it proper for bail to be refused? In England this has been dealt with since the early 1970s, and indeed, in 1971 the Home Office Working Party's findings on bail saw its proposals translated in substance into the Bail Act, 1976. One of the most important contributions of the working party was in making clear the distinction between the REASONS for a refusal of bail and the EVIDENCE in support of those reasons. For instance, a prosecutor may object to bail on the ground that the applicant has no fixed abode and that he has a criminal record. Critically examined, this is quite alien to both sense and logic. Lack of a fixed abode and being a person with a criminal record cannot be used as reasons for locking up people22. The Working Party identified the main
20 21 22
Criminal Application No. 446 of 1986. Kirby -v- King (1714) 93 E.R 338. Brian Harris, The New Law of Bail, Sussex, Barry Rose Limited, 1978 Page 86 of 382
reasons for refusing bail as being the likelihood of the accused absconding and the likelihood of further offences being committed. In light of the above, it is appreciated that the absence of a fixed address could be evidence in support of the argument that the defendant would not appear at the adjourned hearing and a record of previous convictions could be evidence for anticipating that if released, he might commit other offences while on bail. Several reasons have been suggested for refusing bail and several others have also been propounded for its grant.
1. Fear Of Absconding
The trial of serious offence cannot normally proceed in the absence of the accused. Therefore, any remand arrangements which fail to secure his attendance will be unsatisfactory, as Lord Russel said;
"The requirements as to bail, are merely to secure the attendance of the prisoner at the trial.”23
Where the only objection to bail is fear of absconding there should be few cases indeed where the court cannot by calling for adequate and sufficient sureties and by imposing suitable requirements ensure the attendance of the accused. If he fails to find sureties, he will necessarily remain in custody, but it is hoped that courts will not refuse bail with sureties simply because they believe that the accused would be unable to obtain them.
23
R -vs- Rose (1885-99) All E. R at 851. Page 87 of 382
2. Fear Of Further Offences
It does not matter how many sureties are tendered, they will still not be adequate to meet the case if the true ground for objection is that the defendant will commit an offence or offences while on bail.
While referring to a
defendant who had committed nine offences while on bail, Atkinson -J- noted that "... to let such a man loose on society until he has received his punishment for an offence which is not in dispute is in the view of this court very inadvisable24".
3. Interference With Witnesses This is a more difficult consideration for the court to evaluate. Such an objection can easily be made without foundation. On one hand, fears of this sort may be felt by experienced police officers and yet on the other hand be incapable of proof. The home office working party commented:
"The possibility of the defendant interfering with witnesses will usually be relevant only where the alleged offence is comparatively serious and there is some other indication such as a past record of violence... of the defendant. Where there is a substantial ground for fearing such interferences this seems to be a very strong reason for refusing bail”25.
If the prosecution is objecting to the release on bail on the ground that the accused is likely to interfere with witnesses if granted bail, such an allegation should be supported by facts showing reasonable cause for the belief.
24 25
R -vs- Phillips (1974) A.C 111, 334. See para. 6 of the proposal. Also see Brian Harris, "New Law of bail" Sussex, Barry Rose Limiled, 1978 Page 88 of 382
4. Nature And Seriousness Of The Offence This has for ages been a factor considered at common law to determine bail decisions. The more serious the offence charged, the stronger the temptation to abscond26. The Kenyan courts have also given the gravity of the offence great weight in bail determinations. Thus in R –vs- Peter Kariuki27 the charge was that the accused had told the Manager of the Egyptian Airline (Egyptian) in Nairobi that their aircraft would be blown up by the engineering section of the East African Airways after take-off. The information was false. The accused applied for bail but was refused on the ground that the accused made a serious allegation which resulted in scaring the passengers on board. Where a case arouses the interests of the state, courts find themselves in difficulties when trying to play their role as custodians of human rights. The net effect is that the accused is denied pre-trial liberty as was indeed the case against Robbert Martins.28 Here, the accused, a senior lecturer of the University of Nairobi was charged with (among others) inciting students to riot. He applied for a release on bail but was refused on grounds that the crisis at the University had not yet been quelled. On appeal to the high court, Madan C J upheld the decision of the lower court to refuse bail.
5. The Severity Of Punishment The court should have regard to the likely sentence if the accused is convicted. This is so because his perception of the probable consequences of a conviction may be expected to have considerable effect on his reaction to bail. If for
26 27 28
R-vs- Barronet and Allain, (1852) 17 Y.P 245. Case reported in Sunday Nation Jan. 4, 1976 at p.3, In Resident Magistrate's court at Nairobi, Criminal Case No. 1321 of 1975. Page 89 of 382
instance, the penalty is likely to be a fine or probation the defendant is less likely to abscond than if the penalty after conviction is a long custodial sentence.
6.
Illness Hardship to a defendant who has been refused bail may arise through
serious illness. This has been recognized in America under section 73 of the Institute Code which provides that courts, when satisfied upon investigation that any confinement will endanger life may admit the defendant to bail.
7. Delay Delay in the prosecution of a case through failure either to indict or to try completely, constitutes a reason to allow bail as there may be great hardships on the defendant29. Where the accused is applying delaying tactics and keeps postponing the date for trial, the court may exercise its discretion and withdraw bail where it had been granted30.
8.
The Defendant's Character And Antecedents These include an accused's previous convictions and not the whole of his
past history. If the defendant has abused the grant of bail in the past, or if he is already on bail in respect of another charge, these facts should count strongly against him. In other cases however, the defendant's previous convictions may not necessarily provide a reliable guide to his likely reaction to bail unless they disclose a large number of serious offences. A case in point is the English decision in R –vs- Vallet31 where Lord Goddard CJ held inter-alia that
29 30
31
People -v- Tinder 19, Cal. 539. R -vs- Muturi Kigano [Reported in Daily Nation Nov 18th 1975, at 3] [also Daily Nation 19th Nov 1975 at 3] (1951)1 All ER 231. Page 90 of 382
'character and antecedents' of the defendant are not limited to previous convictions. It has further been observed that an order to find sureties for good behaviour is not an order made on conviction32.
9.
Other Factors To Be Considered
Other factors to be considered include the defendant's association and community ties. The strength of the evidence is a matter to be considered in each case in conjunction with the seriousness and nature of the offence charged. If the case against the defendant appears to be weak in the eyes of the court, it should be an additional ground for considering the grant of bail. One of the most fundamental questions in the law of bail is whether or not the courts should be allowed any discretion in refusing to release on bail, and if so, to what extent33. It has also been said that the general guarantee of bail as found in the Constitution is applicable only before conviction34. Fears mount in many people when this discretion is being exercised for a number of reasons. First, there is always the probability that the amount of bail will be set by an official who is not entirely acquainted with the significant facts of the case. These include the socio-economic factors of the defendant. The bail required may be excessive, and although this is remedied by the Criminal Procedure Code35 it is not impossible to have the imposed bail being excessive. It has infact been held that mere inability to procure bail does not of itself make the amount excessive36. Bail is excessive only if the amount required is unnecessary
32
33 34
35 36
R -v-London Sessions Appeal Committee Ex-parte Beautmont (1951)1 All ER 232. See Waite, ‘The Problem of Bail’ (1929) A.B.A.J, 71. See OrField L.B, "Criminal procedure from arrest to Appeal", (New York, New York University Press, 1947). Section 123 (2) and (3). Ex parte Malley- 50 Nev, 248; (1927)53 A.L.R. 395. Page 91 of 382
to secure the compliance of the defendant with the bail bond37. In Kenya the factors to be considered in exercising bail discretion are not enacted in the Criminal Procedure Code. However, against the primary purpose of ensuring the accused's attendance at his trial the following factors should guide a court seized of a bail application.
(a) Nature of the accusation, (b) Gravity of the offence and the severity of punishment in the event of conviction, (c) The antecedents of the applicant in so far as they are known, (d) Whether the applicant has a fixed abode, (e) Whether he is likely to interfere with any of the prosecution witnesses or any evidence tendered in support of the charge.
F. BAIL PENDING APPEAL Bail pending appeal primarily depends upon the cogency of the grounds of appeal, although ultimately its grant will depend on the exercise of the court's discretion on the particular facts of the case.38 The principles governing the grant of bail pending appeal differ from those governing bail before conviction. Bail pending appeal may be granted after considering:
(a) Whether leave to appeal has been granted, (b) Whether there is a strong likelihood of success of the appeal, (c) Where there is a risk that if bail is not granted, the sentence will have been served by the time the appeal is heard.
37 38
People ex parte summons -v- snow 340 iu 469; (1688-93) I. N.P., 170 Thompson D.R, Proceedings in the Criminal Division of the Court of Appeal, Sussex, Barry Rose Publishers Ltd, 1970. Page 92 of 382
Even in these circumstances, bail is not always automatic. In the case of Shah –vs- R39 it was suggested that rather than grant bail, steps should be taken to see that the hearing of the appeal is expedient and it was further added that bail should be granted only in exceptional cases. In Somo -vs- R, Trevelyan J noted:
"It seems to me that where these applications are considered it must never be forgotten that the presumption is that when the applicant was convicted, he was properly convicted… That is why, where he is undergoing a custodial sentence, he must demonstrate...
that
there
are
exceptional
or
unusual
circumstances in the case.”40
These exceptional or unusual circumstances are different from those that pertain to pre-trial bail and as noted by Sheridan J, "Different principles must apply after conviction ...41”. The most fundamental ground for consideration is whether the appeal has an overwhelming chance of success, and where this is shown then there is no justification for depriving the applicant his freedom. In Motichand-v- R, Muli – J-42 (as he then was) granted bail on the ground that the appeal had a probable chance of success. Muli -J- refused to follow the decision in Lamba. He noted that if the test in Lamba –vs- R43were to apply, it would virtually mean that in all applications for bail, the overwhelming probability of success of the appeal must be conclusively demonstrated. In doing so, it would be tantamount to constituting the court hearing the application for bail, a Court of Appeal. He 39 40 41 42 43
13th August 1976 C. A (unre ported). (1972) EA 476 at 480. Masran -vs- R (1960) EA 321. Motichand -v- R (1972) EA 399. Raghbin Singh Lamba -vs- R (1958) EA 337. Page 93 of 382
further noted that it would amount to a deprivation of the fundamental rights and freedoms of the individual which the Constitution guarantees, he said; “... Section 357 (Criminal Procedure Code) permits the admission to bail pending appeal and I see no justification in applying too stringent a test to defeat this statutory provision...”44
It was further noted that a single factor is not enough to warrant a grant of bail but the totality and cumulative considerations of all the facts of the case.
BAIL PENDING APPEAL ON A PLEA OF GUILTY The Criminal Procedure Code provides that an appeal will not be allowed if the accused is convicted on his own plea of guilty. An appeal will only be allowed as regards the legality of the sentence45. In the case of Merali –vs- R46 the applicant had been charged and convicted of an Exchange Control offence on his own plea of guilty. He filed an appeal claiming inter-alia that the plea was equivocal. He applied for bail pending appeal. Notwithstanding the plea of guilty, the court held that where and if the requisite tests were met, bail would be allowed. Harris -J- was alive to the fact that by virtue of section 348 (Criminal Procedure Code) an appeal would not be allowed on a plea of guilty. However, this bar is only to the extent that it (plea) is not bereft of legality - that is; it must be unequivocal and be freely given by the defendant. The defendant himself must infact plead and it is not enough that counsel pleads on his behalf by indication or otherwise. This was the decision in R –vs- Heifer47. Harris J
44 45 46 47
See Note 5 (Supra). Section 348 (Cap 75). (1972)EA 47. (1951)1 KB 29. Page 94 of 382
gave four conditions to be considered:
(a)
Character of the applicant;
(b)
The possibility of a substantial delay in the hearing of the appeal;
(c)
Whether the offence with which the applicant was charged involved personal violence; and
(d)
That the appeal is not frivolous or vexatious and has a reasonable possibility of success.
The application was allowed and while agreeing that no precedent existed before this case (for grant of bail pending appeal on a plea of guilty) the court observed that:
"... notwithstanding that no precedent has been found... for granting of bail pending an appeal from a conviction based on a plea of 'guilty'... subject to proper safeguards, the present application should be allowed.48 In Raghbin Singh Lamba -vs- R49 the arguments for bail pending appeal were that the appeal could more easily be prepared if the applicant was on bail, previous good character of the applicant and the hardships to his dependants if he remained in prison. In his judgment, Spry -J- held that the principle to be applied is that 'bail pending appeal should only be granted for exceptional and unusual reasons'. He further noted that neither the complexity of the case nor the good character of the applicant nor the alleged hardship to his dependants could justify the grant of the bail. Had the court been "satisfied" that there was
48 49
(1972) EA 47 at 49. (1958)EA337. Page 95 of 382
an overwhelming probability that the appeal would succeed, the application would have been granted. The present application was dismissed for want of satisfaction to the court that there was an overwhelming probability of success. The decision which was later denied force by Muli -J- in Motichand50. While insisting on unusual reasons, Spry -J- was of the view that when a person is awaiting trial, the onus of proving his guilt ultimately rests with the prosecution and consequently, the onus of showing cause why bail should not be granted. On the other hand, when a person has been convicted the onus is on him to show cause why the conviction should be quashed and similarly, its upon him to show cause why as a convicted person, he should be released on bail.
"...the fact remains that the prisoner has been convicted and the onus is on him to show that he was wrongly convicted.51 A short custodial period, as accepted by Madan -J- in Hasham -v- R52 is not in itself a special ground for granting an application for bail. However, without prejudice to this argument, if the sentence is the maximum provided, then the fact should be taken into consideration as there is the possibility that the sentence might be served before the appeal is heard or when it is going on. Such was indeed the case in Abdullah –vs- R53 where the appellants had already served their sentences and had been discharged when the appeal was allowed, the conviction quashed and sentence set aside. It has also been noted that delay alone is not enough and must be accompanied by other factors, but in exceptional cases could be considered alone. However, courts seem more prepared to take the case in its totality rather
50 51 52 53
(1972) EA 399. Supra (note II) at page 337. Criminal Appeal No. 582 of 1967 (unreported). (1963)EA223. Page 96 of 382
than pick specific factors. Harris -J- said: "...taking the case AS A WHOLE, I am satisfied...54"
The question whether the Court of Appeal can grant bail pending appeal was discussed in the case of Michael Otieno Ademba –vs- R55. In this case the appellant pleaded guilty to a charge of personating a person employed in civil service, contrary to section 105(b) of the Penal Code. He was sentenced to twelve months' imprisonment. He appealed against the sentence to the High Court, which declined to grant bail pending the appeal. He subsequently appealed against the judge's refusal to grant bail. Porter, Kneller and Hancox JJA held that the Court of Appeal has no jurisdiction under Criminal Procedure Code, or the rules of the Court of Appeal56 to entertain an appeal from a refusal of the High Court to grant bail pending an appeal to that court. In this case, the Court of Appeal noted that the accused's counsel had selected the wrong section and sub-section of the Criminal Procedure Code for his application to the High court for bail pending appeal to that court. He chose section 379(4) which empowers a High Court judge or a Court of Appeal judge to grant bail pending the hearing and determination of an appeal from the High Court to the Court of Appeal except where the appellant has been sentenced to death. The application ought to have been made under sections 356 or 357 (Criminal Procedure Code) according to whether the appellant has or has not entered his appeal in the High Court. The Court of Appeal followed the case of Nemchand Govindji –vsRegina57 where the former East African Court of Appeal held that it had no jurisdiction to grant bail pending an appeal to the Supreme Court of Kenya58.
54 55 56
57 58
Merali -vs- R (1972) EA 47 atg 49, See para. G and H. Court of Appeal Reports (1983) Vol 1, at 187, [ (1983)1 C.A.R. 187]. Rule 5 of Court of Appeal rules deals with bail pending the hearing and determination of an appeal before it. (1954) 2.1 E.A.C.A266. The Supreme Court is now the High Court of Kenya. Page 97 of 382
As noted above therefore, a single factor may not suffice to warrant grant of bail pending an appeal and several factors must be considered before the discretion is exercised. In the Islam Ali Abdulla -vs- R59 it was held that an appellate court can only grant bail pending appeal where it is satisfied that there is a substantial point of law to be argued which could, result in the conviction being quashed. The applicant had applied for an order that he should be released on bail pending the determination of his appeal. He had been sentenced to one year imprisonment with five strokes of the cane after pleading guilty to a charge of stealing goods on transit contrary to section 279(c) of the Penal Code. It was argued on his behalf that besides the applicant's plea of guilty in the court of first instance being not unequivocal, there were irregularities pertaining to the taking of that plea which were incurable. It was further contended that the factors outlined in support of the charge laid against the applicant did not disclose the offence with which the latter was charged. It was further argued that by the time the appeal is heard and determined, the applicant will have served the sentence. The court asked itself whether the above facts were exceptional to the extent that they drive the court to the conclusion that justice can only be done by granting bail. The court further noted the dictum in Torroha Mohammed Torroha –vs- R60 where an appellate court is satisfied that there is a substantial point of law to be argued and that it could lead to the conviction being quashed, the court may grant bail pending appeal. In refusing to grant the bail, the court stated inter alia that:
"...Indeed, we are as of now unable to say that they (above reasons) could result in the applicant's conviction being
59 60
Criminal Application No. NA1.2 of 1989. Court of Appeal Criminal Application No. NAI. 5 of 1988 (unreported). Page 98 of 382
quashed. Accordingly in the judicial exercise of this court's discretion, we refuse the applicant's application and dismiss the same".
G.
SURETIES
In considering the suitability of sureties, regard may be had to: (a) His financial resources, (b) His character and previous convictions, (c) His proximity to the bailed person, (d) It is essential that the person giving bail should be interested in looking after and, if necessary using powers he has to prevent the accused from escaping.61
It has however, been held that a court may not refuse a surety for his political opinions or otherwise inquire into his private interests or character62. In England, to ensure that sureties are not driven by monetary consideration it is settled law that an agreement to indemnify sureties is an illegal contract63 and has been made an offence in England under the Bail Act (1976) at section 9(1). Further,
the
Criminal
Justice
Act
(1967)64
introduced
special
requirements of bail. This section was re-enacted in the 1976 Act and allows the court to impose any conditions it considers necessary to secure that a bailed person:(a) 61
62 63 64
Surrenders to custody;
See North J in Consolidated Exploration and Finance Co. Ltd -vs- Musqrave(1900)64 J. P.89. R –vs- Badger (1843) 7 J.P. 128. R -vs- Porter (1908-10) All. ER 78. Section 21 thereof. Page 99 of 382
(b)
does not commit an offence while on bail,
(c)
does not interfere with witnesses or otherwise obstruct the course of justice,
(d)
makes himself available for purposes of inquiries or a report.
In Kenya, the law as to sureties is laid down in section 123 of the Criminal Procedure Code. A surety simply defined is a pledge by some other person guaranteeing that the accused person shall appear for his trial and if he does not then the surety shall pay to the court a certain sum which has been fixed by the court. The qualifications that need to be met by one in order to stand as surety were discussed in the case of R –vs- Gabhai Jessa65. A person standing as surety must be a person of social standing in the community. He must also be aged twenty one or above and must be capable of meeting his financial obligations as a surety. Unfortunately, the introduction of wealth into the law of bail has led to a distinction based on the financial well being of each person. This has led to the poor being denied bail, yet, all shall be accorded equal treatment of the law 66. Bail is therefore seen as no longer serving the purpose for which it was intended. Section 123(2) provides that bail should be granted with due regard to the circumstances of the case and should not be excessive. However, determination of what is excessive raises a problem. The mode of granting bail is a discretionary exercise and further, there are no guidelines as to what sums should be deposited. What is excessive can only be determined accurately by bringing before the court (or before the officer so seized of the matter) the
65
66
High Court Bulletin No. 54 /1963 at P.31. It should be noted that the Age of Majority is now 18. See the Age of Majority Act Cap 33 of the Laws of Kenya. See Constitution section 82. Page 100 of 382
accused together with a document to show what property or wealth he owns assuming he does! The section also provides that bail will be determined having regard to the circumstances of the case. A test for granting bail was set in the Jaffer Case67 where it was stated that the true test of a bail application is whether its grant will be detrimental to the interest of justice68. However, the term interest of justice is so wide that it cannot offer a definite guideline. It has also been said that an aspect to be considered while granting bail (or refusing) is the prisoner's safety. There ought to be a cooling off period so that the people he (accused) had wronged are not aroused and lead to further offences. Such a consideration heavily relies on the nature of the offence charged. The case of R -vs- Gajjan Singh and Others69 is illustrative and here where the landlord was charged with a criminal offence, letting him off could have led to a breach of the peace i.e. attack by the tenants. The court observed that:
"... that application was opposed by the prosecuting advocate not on the ground that the appellants might not appear to stand their trial but on the ground that there was reason to apprehend breach of the peace by one side or the other. ….We consider that the attitude taken up by the prosecuting advocate was very sensible and wise...70"
H. BAIL BOND The bulk of the law relating to bail and bond is outlined in the Criminal
67 68 69 70
(1973)EA39. Ibid at 41. (1947) 14 E.A.C.A III. Ibid at 113. Page 101 of 382
Procedure Code and the Police Act71. Section 36 of the Criminal Procedure Code empowers a police officer in charge of a police station, where an accused cannot be brought before a court within the required time ‘... unless the offence appears to be of a serious nature, release the person on his executing a bond, with or without sureties...' Section 23 of the Police Act emphasizes the same. The purpose of granting such bail bond is to ensure that the accused persons do not serve pre-trial custody/sentences. However, the only accused persons who may qualify for the release upon executing such a bail bond are those charged with minor offences. Bond can be given for prevention of offences72 as well as security for good behaviour73. Habitual offenders can only be bonded by a Magistrate74, who when granting such a bond must state the information received, the amount of bond granted or to be executed, the period for which it will be in force and the number, class and character of sureties if any that are given.75 Section 125 of the Criminal Procedure Code states that in granting bail and before the release of the accused person, a bond for the amount stated shall be executed by the accused in case of personal recognisance, or by one or more of the sureties in case of bail bond. The bond shall state the time and place of appearance. Release then follows. In some instances, a bond has been discharged in the absence of the accused. The Tanzanian case of Mahmood –vs- R76 indicates that such an order (of discharge) is valid until set aside by the High Court. In this case, the application was security for the attendance of the accused in a criminal case, when the accused failed to appear, the accused applied to be released/
71 72 73 74 75 76
Cap. 84. Section 43 Criminal Procedure Code (Cap 75 Laws of Kenya). Section 44 and 45 Criminal Procedure Code (Cap 75 Laws of Kenya). Section 46 Criminal Procedure Code (Cap 75 Laws of Kenya). Section 47 Criminal Procedure Code (Cap 75 Laws of Kenya). (1974)EA300. Page 102 of 382
discharged from his bond, which discharge was granted. Later, the applicant was ordered to forfeit its bond. He applied to the High Court to review this order, and the respondent argued that the first order was a nullity and could be ignored, although it had not been set aside by a superior court. The High Court allowed the application and noted the following;
i) the first order was valid even if made irregularly, until set aside by the High Court; ii) an order irregularly made can only be set aside when the irregularity has occasioned a failure of justice; and iii) to uphold the forfeiture of a bond already set aside would occasion a failure of justice.
The mode and style of operation of bail and bail bond is not in strict sense wholly governed by the legal rules only. Persons who may be admitted to it largely depend on other social factors. This is so because the legal system or institution of a country cannot be looked at as being isolated, or abstract. It is part of a broader social, political and economic status of the country. It can best be understood only within the context of the concrete material conditions which brought it about and which continues to shape it. Any analysis, therefore, must focus on the economic, social, political and cultural organisation of the society in which it operates.
"... the structure of a society always forms the real basis which, in the last analysis, is to be explained the whole superstructure of the legal and political, institutions.77
77
Engels F, "On historical materialism in Marx and Engels; Basic writings on politics and philosophy." New York, 1959, at 43. Page 103 of 382
Therefore, although we have stated the rules as relates to bail and bond in Kenya, the practice may be seen to deviate. This deviation can only be explained after considering the above socio-political and economic factors.
I.
RENEWED BAIL APPLICATION
Renewed or successive application for bail will be heard de novo, only if there has been a change of circumstances. It has been suggested that only circumstances which have occurred since the last hearing or matters not brought to the attention of the court on the previous occasion, may be taken into account; A case for consideration is R -v-Nottingham Justices ex parte Davies78, whose jurisprudence, has been debated upon in several fora. In this case, the applicant, who had been remanded in custody pending his trial on a charge of rape made two successive application to justices for remand on bail. Each was refused on the grounds that his case came within one or more of the exceptions to the right to bail (as contained in the schedule to the 1976 Bail Act of Britain). When he subsequently applied to a differently constituted bench for remand on bail, he was asked whether, there had been any change(s) in the circumstances since the previous application. He informed them that there had been none but asked for a full hearing of the case on its merits. It was held that since there had been no change in circumstances, there were therefore no grounds on which to re-consider the application. Leave to appeal to the House of Lords was refused. The reasons given for the refusal were that although an accused has a prima facie right to bail, and although the matter must be considered on every application, nonetheless the earlier or previous finding, refusal of bail was a finding to be treated as "res judicata" or analogous thereto.
78
1980) 2 All. E.R 775, Page 104 of 382
The court should therefore start at the point when the matter was last considered and need only investigate the matter further if there are new circumstances or evidence of old circumstances not previously before the court. It has also been said that the mere passage of time is not itself evidence of a change in circumstances. The effect of the Nottingham principle means that a refusal of bail is indefinite unless and until something new turns up. "It is strongly submitted that the Nottingham decision is very bad79". Whereas the passage of time is not in itself a change of circumstances, it may lead to a change of circumstances. For example the risk of interference with witnesses may diminish as the police complete their inquiries and the taking of statements. Police objection to bail may diminish or even disappear with time. There is no doubt that in some cases, the renewed or successive application for bail may be hopeless and the reason(s) for refusing bail in the last application may have been overwhelming;
"... a robust court should be able to control its proceedings, to get fairly but expeditiously through bail applications, to shorten the prolix advocate, to express displeasure at hopeless applications, to curb abuse? but nonetheless still to consider the matter on its merit80".
The accused, whose liberty is at stake should be entitled to a full and proper hearing of his case, whatever it is. For instance, suppose that the earlier decision was bad, may be the evidence was misunderstood, the reasons for refusal were not justified by evidence or were otherwise spurious, is the accused still to be bound by a bad decision?
79 80
"Bail: Renewed Application", The New Law Journal (1981)Vol 131,132 - 133 Ibid at 133, Page 105 of 382
What one can then note is that refusal of bail may be an unfortunate necessity, but the liberty of the citizen is not to be trifled with. A lawful bail application should always be treated on its merits.
J.
BAIL AS VIEWED BY COURTS
Despite the fact that the substantive law of bail is being restated every day, the subject generates great tension and passion between the bar and the bench. The bar admires the bench which grants bail liberally according to its members' views and convictions. However, no Magistrate will allow or refuse bail indiscriminately and it has therefore been said that it is a fallacy aggravated by coincidences or ignorance that some Magistrates are seen to be impervious to the prisoner's rights; while others are considered excellent, steeped in sympathy and constitutional propriety towards the prisoners. However, courts try to apply the law according to the circumstances in each case and make the decision (to grant or to refuse bail) in a responsible manner. Courts claim competence to deal with such cases as they deem fit because they carry the burden of conscience bearing in mind the conflicting claims of the prisoner and those of the state. The dilemma is best illustrated by the Indian case of Lokmanya Tilak.81 He was arrested on a charge of sedition and an application for bail made and argued on his behalf by a young barrister, Mr. Daver, before Justice Ronade, who was himself an admirer of Tilak's philosophy. The application was refused and two days later, it was taken before a Muslim judge, Tayabji Badruddin. In view of the anti-muslim bias of the Article which was the basis of the prosecution, Mr. Justice Badruddin was hardly expected to allow Tilak bail. However, that is exactly what happened! Thus the two jurists had differing views about the ends of justice. The young
81
Second Source - Proceedings of Kenya's 1st Law Society Conference, Rauf, A 1978. Page 106 of 382
barrister, Daver, was elevated to the High Court Bench and in the fullness of time, and by the irony of fate which only history is capable of, Tilak was again charged with sedition. Bail application was again made, but this time, Daver was not dealing with it from the bar, but as the presiding judge. The same arguments that Daver had presented to Justice Tayabji were presented to him. Daver -J- refused bail saying:
"If it was only a question of personal feeling, I would be most unwilling to keep the prisoner in custody. I think it would be wise under the present circumstances not to give reason or enter into a discussion of the considerations weighing with me in refusing the application.”
The bench has times without number shown that it is qualified just as the bar is, and that their training does not remove them from their belief in human rights which they strive to uphold. Their (judges') philosophy is inconsistent with conscious distortion of the fundamental and noble concepts of law. However, they are called to perform the impossible task of matching the ideal with the reality. The conflict between the ideal and the reality is evident in all corners of nature. Santayana82 exemplifies the ambivalence:
"... the whole transcendental philosophy, if made ultimate is false, and nothing but a selfish perspective hypothesized... because nature is not a product of the mind but on the contrary there is an external world."
82
Sarvtayana, "Germany Philosophy and Politics". Page 107 of 382
The circumstances of each case must be considered on their own merits. For the defence, the litmus test of the court's impartiality and independence is determined by its attitude towards the bail application. On the other hand, the prosecution counsel will judge the court's sensibility to the social and national imperatives from the opposite direction. This reflects the dynamism with which bail questions are answered and determined. The attacks upon the court are merely expressions of the unrest which characterises the concern of the lawyers and jurists with the fundamental rights of the individual enshrined in the Constitution of Kenya and the United Nations Declaration of Human Rights to which Kenya is a subscriber. The constructive criticism is welcome and ought to be encouraged - constant vigilance is the price of eternal liberty and peace. However, the hope to achieve the absolute right to bail, one must campaign to change the law and make it mandatory for the courts to grant bail in all but very few exceptional cases. This is a difficult suggestion. For a start an experiment could be made to narrow down the court's discretion on bail in specified cases and widen the list gradually, all depending on the success of the experiment. But mandatory bail may appear to be risky at this stage of the development of our institutions, but in view of the importance of the prisoner's right to bail it is a risk worth taking.
K. VARIANCE BETWEEN LAW AND PRACTICE
It is a truism that practice does not always follow the law. A variance is often detected. Delay in the criminal process is a common feature despite the fact that it is unconstitutional. While one cannot turn a blind eye to the fact that crime rate is on the increase, which occasions pressure of work, one still feels that the main cause of the delay lies with those who are entrusted with the administration of justice. There are delays occasioned by the arresting of an accused by officers before investigations are effected on grounds of suspicion Page 108 of 382
with investigations being left to be done later. The apologists of this 'misfit' justify it on the premise that if no arrests are made before the investigations are. done, that would defeat administration of justice. Several factors explain this variance between the law and what the practice is.
i)
Socio-economic conditions of the accused: Bail should be fixed according
to the circumstances of the case but unfortunately this term has been interpreted by the courts to cover only the nature of the offence, and the evidence of the accused. The economic well-being of the accused is not given the requisite attention and hence more often than not the amount fixed is excessive.
ii.)
Surety: The more influential and well-known to the police and the court
the surety is, the greater the likelihood of bail being granted.
iii)
Ignorances: The ignorance of the accused of his/her rights is a major
problem to pre-trial liberty. In Kenya only a minority is literate and even the few have no proper exposition to court procedures and will therefore not apply for bail.
L. SUGGESTED REFORMS
i)
Kenyan law on bail be amended to incorporate a provision like the Ugandan Act83 which stipulates that the Magistrate should inform the accused persons of their right to apply for bail.
ii)
Section 36 of Criminal Procedure Code should be amended to empower police officers in charge of a police-station to release on bail. The officer is supposed to release a person who is not charged with a capital offence
83
Magistrates' Courts Act (Uganda) section 75. Page 109 of 382
if it is not possible to bring him before the court within the stipulated period. Secondly, it must not appear to him that the offence is of a serious nature. This last requirement should be deleted because practice has shown that nearly every offence appears to be of a serious nature to police officers, Bail has been refused by police officers for offenses such as being found drunk and disorderly in a public place. A list of bailable and non-bailable offenses should he made available to the officers with a provision for adherence to the list. This is the only way to render operative and effective the section84 for as it stands now, its a dead letter law. iii)
Magistrates should have full information regarding the defendant's economic standing, social and family ties, nature of the offence and evidence against him before exercising his discretion.
M.
THE LAW OF BAIL: FURTHER THOUGHTS ON REFORM
The bulk of the law relating to bail in Kenya is found in the Criminal Procedure Code and in particular section 123 thereof. It provides that the issue of bail can arise at any time that is before proceedings are commenced or during the course of them as the section states "at any stage of the proceedings". The section further gives police officers in charge of a police station power to grant bail. It is provided that a cash bail or a bond with sureties may be granted. Usually, the cash bail is set at a rate that even if the accused, absconds the amount, it is enough to repair damage done or compensate for anything lost or injuries suffered. Cash bail is usually given in offences subject to minimum sentence as was done in the case of Jaffer -vs- R85, where the court held that all offences falling under Minimum Sentences Act of Tanzania are bailable and proceeded
84 85
Section 36 of Cap 75. (1973) EA 39. Page 110 of 382
to grant a cash bail of Shs. 5,000/- and one surety.
Section 123(1) provides for a bond without sureties as well. This can be a free bond on the accused's own recognizance that he will appear for trial and he does not have to pay or deposit any security. Where the accused has executed a bond without sureties or no security and he fails to appear in court, a warrant will be issued and when found he shall face a criminal charge for absconding. Where there is a surety or security and the principal fails to turn up, the surety forfeits the amount deposited, or in the case of property it is forfeited to the state, The Ugandan Case of Nsubuga -vs- R86 lays down the law relating to forfeiture. In this case, an accused was granted the sum of Shs. 500/- on the 2nd day of February 1967 in the Magistrates court Mengo, as security for his attendance, for trial on July the 25th 1967 and was released on bail. Sometime on the 25th July 1967 the Magistrate recorded that the accused was absent and a warrant of his arrest was issued at the request of the prosecution. On 8th August 1967, the accused appeared before the court and stated that he had been present on July 25th 1967 but his name was not called out. The prosecutor stated that the accused had been absent but no evidence was called to prove this. The Chief Magistrate then ordered the Shs. 500/- to be forfeited. The accused appealed. It was held by Sir Udo Udoma (C-J) that:
i)
a mere statement by the prosecution is not sufficient to satisfy the requirements of section 130(1) of Uganda Criminal Procedure Code [which is similar to section 131(1) of the Kenyan Criminal Procedure Code],
ii)
evidence should have been given on oath,
iii)
the procedure adopted by the Magistrate was defective. The appeal was
86
(1968)E.A. 10. Page 111 of 382
allowed and the forfeited sum ordered to be refunded to the accused. Sir Udo noted:
"... it is beyond the reach of argument that before any person who has entered Into recognisance and who is bound by such recognisance to appear before a court can be called upon to pay the penalty prescribed in the said recognisance, or to show cause why such penalty should not be paid by him, it must have been proved by evidence to the satisfaction of the court and the ground of such proof must have been recorded in a record of the proceeding's of the court87. It was observed that the section88 is ambiguous in parts. For instance, what is meant by the term/expression 'The Court shall record the grounds of such proof ’ Sir Udo wondered as to whether it would not have been sufficient to state simply that 'The Court shall record such proof.’ The above case concerned itself with failure to appear in court and the court was at pains in deciding whether the section should be read as:
"Whenever it is proved to the satisfaction of the court by which a recognisance under this code had been taken when the recognisance is for appearance before a court that such recognisance has been forfeited"
or
87 88
Ibid at page 13. Section 130(1) Ugandan Criminal Procedure Code (See S,131(1) Cap 75). Page 112 of 382
"Whenever it is proved when the recognisance is for appearance before a court to the satisfaction of such court that such recognisance has been forfeited". The law in Kenya takes the position, as illustrated above89.
A number of proposals have been forwarded regarding the regulation of bail. Various writers have strongly indicated a need for reform. Michael King90 proposes the ideal model for bail system which is to have four main tenets:
(i)
Consideration be given on the number of defendants who can safely be released pre-trial. This is to be a comparative safety taking into account the other factors relevant to bail decisions. If, from the totality of the case it is evident that the accused person's incarceration is less when weighed against the probable consequencies of his release on bail, then bail will not be the appropriate step to take. However, if it is shown that it is 'safe' to grant it, his continued incarceration is without merit.
(ii)
There ought to be a very efficient mode of communication between the
people who are to make the bail decision (invariably the court and police officers) and those who are in possession, of information relevant to the bail application and decision. This information could include that which regards the accused's financial standing, his employment and community ties.(iii) It must be a ‘just’ system, 'just' should be taken to refer to equality and consistency. For instance there should be no discrimination against individuals or groups of individuals for reasons wholly unconnected with their suitability for bail. Further there should be safeguards to protect 89 90
Section 131(1) Kenyan Criminal Procedure Code (Cap 75 Laws of Kenya). Michael King, "Bail Reform", Criminal Law Review, (1974) at 451. Page 113 of 382
defendants in their applications for bail against the prejudices or even the eccentricities of individual courts or individual members of the judiciary. (iv) There ought to be adequate compensation for those persons who spend their time in jail awaiting trial and are then acquitted by the court or who have the charges against them dropped.
"... the decision whether or not to release a person before his trial will still contain an element of guesswork, and it is quite wrong that innocent people should suffer because those administering justice make the wrong guesses.”91
Similarly, if the accused is convicted and is to do a prison term, the time he spent in his pre-trial incarceration should he included while computing his prison sentence, for if this is not done, why was he in prison then? It is further suggested that before there can be a just and effective system of bail, there must first exist an effective- system for controlling and monitoring the pre-trial decisions of Magistrates92. This suggestion has been received positively by among other writers Martin Wright93 who suggests that reform must be undertaken to make the bail system accord with the constitutional and other rights of the accused especially when considering the presumption of innocence. There are numerous effects of pre-trial detention, and studies94 have shown that an accused who has been detained in jail between his arraignment and the final adjudication of his case is more likely to receive a criminal conviction or jail sentence than an accused who has been free on bail. Thus, a person's inability or 91 92 93 94
See Criminal Law Review (1974) at 451. Ibid at page 457 “Bail: Recognition of the need for Reform". Criminal Law Review, 1974 P. 457, See 'The Manhattan Bail Project' - reported in The New York University Law Review,Vol. 67, 1963. Page 114 of 382
unwillingness to post a bail may result in more than a temporary deprivation of his liberty95. Rankin noted that: “…detained persons are more likely to receive prison sentences than bailed persons, regardless of whether they have previously been arrested or convicted...96
There has been a concern on the issue of who owes the duty to ensure that the accused appears. Several sources have suggested that the duty is wholly on the state and not on the relatives or friends of the accused. There are several cases and legal works which question the legality of resting the burden which should necessarily be borne by the state, onto an individual. The case of R -vs- Wood Green97 captures the matter. The applicant sought judicial review of an order of the Crown that she forfeit the sum of 35,000 pounds which she had taken as surety for her brother, a defendant to a charge of conspiracy to supply unlawful drugs. The applicant's brother duly appeared but when the case was later refixed for trial he failed to report to the surety (the applicant) as he had always done. She informed the police and she also sought to withdraw her surety. It was held inter-alia that it was open to a surety to make a complaint in writing at a police station that the defendant was unlikely to surrender to custody and a constable could thereafter arrest the defendant without warrant. However, it was further held that there was no power for a surety to withdraw as the applicant had sought to do, unless the defendant was before the court and an appropriate application made. There has been a great concern over the above judgment and several writers have thought that there is a strong case for saying that the 95
96 97
Ann Rankin, "The effect of Pre-trial detention", New York University Law Review, (1964) vol 39 641. Ibid at 648. R vs- Wood Green Crown Court ex-parte Jemima Home, Reported in Criminal Law Review 1991 at 694 Page 115 of 382
responsibility for ensuring that defendant's turn up for trial should be on the state and not on the family and friends of the accused, however willing they may appear to be to undertake this role98.
98
See Corre, 'Bail in Criminal Proceedings' 1990 [From second source (1991) Criminal Law Review]. Page 116 of 382
CHAPTER SIX CHARGES AND INFORMATION
A. INTRODUCTION The Criminal Procedure Code provides a number of ways in which a complaint may be made. It is by virtue of such a complaint that proceedings will be instituted. Section 89(1) of the Criminal Procedure Code provides that proceedings may be instituted either by the making of a complaint or by bringing before a Magistrate of a person who has been arrested without warrant, further, a complaint may be made orally or in writing, but, if made orally, should be reduced to writing by the Magistrate, and be signed by both the complainant and the Magistrate1. The form of the complaint so made is regulated by rules of procedure as discussed below.
B. CHARGES A charge is a formal written accusation of an offence drawn by a Magistrate or by a police officer and signed as required by law for the purpose of use in preliminary proceedings or in a proper trial. It lies against all persons who actually commit, or who procure or assist in the commission of any crime or who knowingly harbour a felon. A charge is drawn among other reasons as a means of making known to the accused person the offence with which he is charged. This is to enable him to fully prepare his defence. The Constitution also gives significance to the charge. It is required that no person can be convicted of an offence unless that offence is defined and the
1
Criminal Procedure Code section 89(3) (Cap 75). Page 117 of 382
penalty thereof prescribed in a written law2. This makes it mandatory that the charge be based on some known offence (known to law) otherwise it cannot stand. The law prescribes the manner in which the charge is to be framed. It contains three basic parts: the commencement, the statement of the offence and the particulars of the offence. The charge is a succinct description of the offence and the particulars and it should not contain any evidence. However, the particulars must be clear enough to enable the accused person to know what offence he is charged with. This notion and centrality of clarity was noted in the case of Nahashon Marenya. –vs- R3. The appellant had been charged with failing to comply with a curfew restriction order contrary to section 9 (1) of the Public Order Act4, The particulars of the offence did not mention this matter making the charge equivocal. Todd -J- allowed this appeal and said inter-alia that:
"Charges and particulars should be clearly framed so that the accused persons know what they are charged with, and proper references should also be made otherwise confusion may arise? and if confusion arises, it cannot be said that failure of justice may not have been occasioned"(emphasis added).
C. EFFECT OF CITING WRONG OR NON-EXISTENT SECTIONS
Sometimes a charge may cite sections and sub-sections of statutes which are non existent. At other times, the charge may quote the wrong section. Sir
2 3 4
See Constitution S.77(8). Cr. App. No. 786 of 1982. Chapter 56 of the Laws of Kenya. Page 118 of 382
Udo Udoma focused on the point in Avone -vs- R5. In this case, the appellant was charged with three counts; one of obtaining credit by fraud, one of forgery and one of personation. The charge misdescribed the sections of the Penal Code under which two of the counts were laid. The appellant was convicted on all three counts. He appealed contending that a conviction based on such a charge was a nullity in law. The court however held that the misdirections in the charge had not prejudiced the appellant and therefore the convictions should stand. In dismissing the appeal, Sir Udo briefly noted:
"I am prepared to overlook these serious lapses... because I am satisfied that the appellant, in the instant case was in no way prejudiced by these lapses... In my view no miscarriage of justice has been occasioned by these lapses6”.
Another case which spells out the judicial position on the question of non-existent and wrong sections is Sabur -vs- R7. The appellant was served with a summons to answer two charges preferred against him under the Traffic Ordinance, 1951. The first count charged the appellant with exceeding the speed limit for commercial vehicles and the second count was for reckless driving. The appellant was convicted and he appealed. It was contended on his behalf that he should have been charged under section 40(1) of the Ordinance instead of section 39(1) and therefore the charge was defective. But it was held that since the particulars of the offence were adequate to inform the appellant of the offence with which he was charged, there had been no failure of justice and the defect was curable under the Criminal Procedure Code. Looking at the Ordinance in question.
5 6 7
(1969)EA129. Ibid at 132. (1958) E.A 126. Page 119 of 382
“Section 39(1) provided that "no person shall drive a motor vehicle of any class or description on a road at a speed greater than the maximum speed prescribed for such a vehicle..."
Charges And Information
Section 40(1) Provided that "any person, who drives... a motor vehicle at a speed greater than the maximum limit lawfully imposed shall be guilty of an offence and shall be liable on conviction to a fine not exceeding Shs. 1,000/= or to imprisonment for a period not exceeding three months".
It is therefore clear that section 39(1) does not create an offence but merely prohibits exceeding the speed limit. Section 40(1) on the other hand declares it to be an offence. The Criminal Procedure Code provides that if the offence charged is one created by enactment it shall contain a reference to the section of the enactment creating the offence. The philosophy seems to be that if the defects have not occasioned a failure of justice, then the charge will stand and a conviction based thereon cannot be quashed on mere ground of the defect. Section 382 of the Criminal Procedure Code is clear that unless the defect has occasioned a failure of justice or has prejudiced the accused, an order or conviction should not be quashed. This does not however warrant the drafters to be careless. A limit beyond which the defects are not permissible exists. Grave defects cannot be countenanced. This issue has received judicial consideration in the Ugandan case of Uganda -vs- Keneri Opindi8. In this case, the accused pleaded guilty firstly for failing to display an 'L' plate and secondly for being a learner driver,
8
(1965)EA 614. Page 120 of 382
driving while not accompanied by a competent driver. The first count was laid under "section 9(b) 123 of the Traffic Ordinance" and the second under "section 9(a) and 12 of the Traffic Ordinance", 1951. It was contended in support of a revisional order against conviction and sentence that the counts were manifestly wrong in law in that the first should have been laid under section 9 of theTraffic Regulations (NOT ORDINANCE) and that the second failed to indicate the law under which the charge was laid. On behalf of the D.P.P., it was contended that the convictions on both counts should be stood as the accused was in no way prejudiced by the counts being laid under the Traffic Ordinance instead of the Traffic Regulations; and that it was probable that the framers meant section 9(b) of the Traffic Regulations. Sir Udo Udoma C.J held firstly with regard to the first count that there being no section 9(b) of the Traffic Ordinance, only section 9 (which did not create an offence) the particulars set out as constituting an offence however clearly stated, by themselves could not create an offence. Secondly, that the error was a fundamental one in law in that the accused was charged with a non-existent offence. It was further held that it was not competent for the court to speculate on the intention of the framer of the charge but must be guided in determining such intention, by the expressions contained in the record of proceedings, and it being impossible to ascertain from the record whether the second count was laid under the Traffic Ordinance or Traffic Regulations, the charge was bad and contravened section 347 (of the Ugandan Criminal Procedure Code)9. The conviction and sentences were set aside and the accused acquitted and discharged.
D.
PARTICULARS OF THE OFFENCE CHARGED
Every charge, or information should contain such particulars as may be
9
Equivalent to section 382 (Cap 75) Criminal Procedure Code Page 121 of 382
necessary for giving reasonable information as to the nature of the offence charged10. The particulars of the offence should contain the essential ingredients of the offence. It has been stated further that the particulars should be framed simply and in the ordinary language without recourse to the use of technical words and phrases. Sometimes, an error may occur in the particulars. If such an error has not occasioned injustice to the accused then a conviction therefrom cannot be quashed on appeal. Thus in Mwaura -vs- R11 it was held that a simple error in the particulars of the charge is not sufficient to occasion a failure of justice. In this case, the appellant accompanied by another tendered a forged currency note of Shs. 100/= at the entrance of a night club in Nairobi, the price of entrance being Shs. 10/= per head. The forged note was accepted and change given. The appellant later gave another forged note inside the club for cigarettes and received change. The appellant's companion later tendered another forged note for another packet of cigarettes to the receptionist who, on going to get change discovered the forgery. The appellant was arrested as he left the club but his companion escaped. The club handed over to the police five forged notes in its possession. The appellant was convicted under section 367(e) of the Penal Code and sentenced to five years' imprisonment. The charge read:
"Having possession of paper for forging contrary to section 367 (e) of the Penal Code [in that the appellant] on 25th day of December 1966, at Nairobi, jointly with others ... without lawful authority or excuse knowingly had in his possession five papers upon which were words, figures, letters, marks, lines as were intended to resemble and pass as a special paper such as is prescribed and used for making bank notes." 10 11
Section 134 (Cap 75) Criminal Procedure Code. (1967)EA345 Page 122 of 382
These particulars were a mixture of section 367(e) and (a) of the Penal Code. On appeal, Rudd and Trevelyn JA ruled that although the charge was defective, the defect was not of such an irregularity or error as had occasioned a failure of justice under section 382 of the Criminal Procedure Code.
E. LACK OF PARTICULARS AND WRONG INGREDIENTS
The question of 'no particulars' was considered in Wandera Reuben Kubanisi- vs- R12. The appellant was charged under section 389 of the Penal Code, the particulars stating that the appellant attempted to commit a felony contrary to section 389 of the Penal Code. The exact charge was styled thus;
"Attempted to commit an offence c/section 389 Penal Code".
Particulars: "Wandera Reuben Kubanisi on 29th January 1965 at 8 p.m at Bungoma Railway Station in Bungorna District of Western Province attempted to commit a felony cont. to section 389 Penal Code." In their ruling Rudd and Harris JJ stated inter-alia;
"This charge is bad for uncertainty because it does not state the felony that was alleged to have been attempted. We would add that contractions such as 'cont’, Penal Code'; and 'section' should, not be used in framing the particulars of a charge.13"
The appeal was thus allowed.
12 13
(1965)EA572. Ibid para i Page 123 of 382
Another issue which has received judicial consideration is whether a charge is defective if it contains a wrong ingredient of the offence or omits an essential ingredient thereof. The case in point is Yozefu and another-vs-R14. In this case, the relevant statute that had been contravened was Game (Preservation and Control) Act15 whose section 14 stated;
"It shall be an offence for any person to possess any live animal or any trophy, flesh or any other part of any animal which has been killed, captured or appropriated or obtained in contravention of this Act unless such animal or thing has been disposed of under the provisions of this Act by order of the Minister".
The two were charged and the particulars were that the accused on a certain date and at a certain place, were found in possession of game trophies without a valid licence from the Chief Game Warden, to wit seventeen drums made out of Zebra skins and forty seven pieces of Zebra skin. The accused pleaded guilty, were fined and fines paid. On appeal, which was allowed, it was held that the charge was defective in that it did not allege an essential ingredient of the offence i.e. that the skins came from animals killed etc in contravention of the Act. As per Spry JA;
"It is fundamental that every charge should allege all the essential constituents of an offence. In the present case, where an offence against section 14 was alleged, we think that the allegation that the pieces of skin came from an animal killed in contravention of the Act was an essential
14 15
(1969)EA236. Chapter 266 of the Laws of Uganda. Page 124 of 382
ingredient, and that its omission makes the charge defective.”16
The argument that "the offence is complete once a person is in possession of a trophy" was rejected by the court. The court opined that since the Act creates a number of offences, it is essential for the charge to make it clear which is alleged; and continued to say that the true interpretation of the wording of section 14 is that the section only makes it an offence to be in possession of the skin of an animal if that animal was killed, captured, appropriated or obtained in Uganda. This shows how important it is to understand the offence before one can draw up the charge. Another issue that has been the subject of determination it whether a charge is bad if it (the charge) relates to a contravention of an order yet that particular order alleged to have been contravened is not specified. The Ngige case17 focuses on the issue. The facts were that the appellant was charged with moving maize without a permit contrary to section 24 of the Maize Marketing Ordinance (Cap 338). On appeal, it was common ground that the particulars as laid in the charge did not conform to section 24(2) of the Ordinance which referred to contravention of an order issued under section 24(1) of the Ordinance, whereas the particulars did not refer to any such order. On this appeal, Rudd and Wicks JJ held that the charge was bad because it did not specify that an order made under section 24(1) had been contravened and did not specify the Maize Marketing (Movement and Maize products) order that was alleged to have been contravened. However, in cases of stolen property, it is not fatal to omit the name of the owner of the property. This was stated in the case of Zaverchand Hemraj
16 17
Ibid at 238 para F. Ngige s/o Gatonye -vs- R (1963) EA 663. Page 125 of 382
Shah -vs- R18 that a conviction based, on a charge that did not name the owner of the property cannot be quashed on that premise so long as the property is proved to have been stolen. On the question of form of the charge, it is important to note that the defence available to the accused be stated in the negative.19 This has further been judicially stated, in the case Lebiningin –vs- R20. In this case, the appellant was convicted on his own plea of guilty of illegal possession of game trophy. On appeal, it was contended that the charge was bad as it did not negative by averment all the defence open to the appellant, among other grounds. The High Court of Kenya held that it is not necessary in the charge to negate exceptions to or qualifications of the offence.
F. GENERAL FORM
The general form of a charge or an information is provided for at section 137 of the Criminal Procedure Code. It is required that the form of the charge conform as nearly as possible to the form provided in the second schedule (Criminal Procedure Code).21 If there are more than one count, the Criminal Procedure Code requires that they be numbered consecutively. The description of property should be in ordinary language and indicate with reasonable clarity the property referred to. It is not necessary to name the owner. Where the property is vested in more than one person and the owners of the property are referred to in a charge or information, it is adequate for purposes of the proceedings to describe the property as owned by one of those persons by the name with the other, and, if the persons owning the property are a body of
18 19 20 21
(1960)EA562 Section 137(b) (ii) Cap 75 Criminal Procedure Code. (1974)EA103. Section 137(a) (iv) Cap 75 Criminal Procedure Code (Cap 75 Laws of Kenya). Page 126 of 382
persons with a collective name, it is sufficient to use the collective name without
naming
any
individual22.
Such
names
may
be
'Trustees',
'Commissioners’, 'Club', 'Inhabitants' etc. If the property belongs to or is provided for the use of a public establishment, service or department it may be described as the property of the government23.
Paragraph (d) of section 137 (Criminal Procedure Code) provides that the description or designation, in a charge of the accused person, or of another person to whom reference is made therein shall be reasonably sufficient to identify him without necessarily stating his correct name, or his abode. If owing to the name of the person not being known, or for any other reason, it is impracticable to give such a description or designation, a description or designation shall be given as is reasonably practicable in the circumstances or the person may be described as "a person unknown.” It is further allowed that the gross sum may be specified, in certain cases of stealing. Thus when a person is charged with an offence under sections 28024, 28I25 28226, or 28327 of the Penal Code, it shall be sufficient to specify the gross amount of property in respect of which the offence is alleged to have been committed and the dates between which the offence is alleged to have been committed without specifying particular times or exact dates28. The notion of naming persons must be distinguished from the naming when the naming is the actual ingredient of the offence alleged to have been committed. The case of Christopher Omufira Akwabi –vs- R29, as analyzed
22 23 24 25 26 27 28 29
Section 137(c) (ii) Cap 75 Criminal Procedure Code (Cap 75 Laws of Kenya). Section 137(c) (iii) Cap 75 Criminal Procedure Code (Cap 75 Laws of Kenya). Stealing by person in public service. Stealing by clerk or servant. Stealing by Director or officer of Company. Stealing by agent etc. Section 137(j) Criminal Procedure Code (Cap 75 Laws of Kenya). Cr. App. No, 131 of 1989. Page 127 of 382
below, brings out the difference. A plea of guilty to a defective charge cannot stand and the accused person cannot be convicted and sentenced on such a plea. The Court of Appeal so held that the appellant was convicted on his own plea of guilty to the offence of giving false information to a person employed in the public service contrary to section 129(a) of the Penal Code. The particulars of the case were as follows: Christopher Omufira on 24th May 1989 at the Nairobi City Hall gave false information to one Mr. Shigholi, a person employed in the public service to the effect that some prominent personalities had given money to a Nairobi City Commission official in order to induce the said official and other workers of the commission to undermine the smooth running and operations of the Nairobi City Commission, which information the said Christopher knew to be false and likely to cause the said Shigholi to do an act which he would otherwise not do if the true state of facts respecting the said information was known to him.
Counsel for the appellant contended that there was an incurable defect in that it was improper to omit the names of the prominent personalities and the official of the City Council whose alleged misconduct formed the false information given to Shigholi. The counsel urged that that was a fatal omission. The court in its judgment ruled that it was imperative for the "prominent personalities" and the "official" to have been identified bynames in the particulars of the charge, as without the names or actual identifying information alleged to have been given by the appellant, the false statement alleged to have been given to Shigholi was incomplete. The charge as framed was incomplete and deficient to that extent and a plea of guilty to it is not quite unequivocal. In the court's view, "they" as witnesses must be distinguished from ordinary witnesses to an event. "In this case", the court said, " 'they' were not witnesses to an offence (i.e. the event) but are alleged to be the actual participants in. the Page 128 of 382
event and their alleged actions constituted the vital ingredients in the false statement. On account of the role they are alleged to have played in the false statement, a fullest possible identification of these persons was essential". Thus, a plea of guilty to a defective charge cannot stand.
G.
JOINDER OF COUNTS
The legislative cushion upon which several counts may be joined is section 135(1) of the Criminal Procedure Code. It is a provision that has received judicial interpretation in R -vs- Dalip Singh30. The appellant had been charged jointly with another with the theft of property belonging to the KenyaUganda Railway and convicted of conveying stolen property. In the second count, the appellant was charged alone and convicted of bribing a police officer in order to procure his release. It was adduced in evidence that the bribe had been given very shortly after the arrest of the two men. When the matter went on appeal, it was argued on behalf of the appellant that there had been a misjoinder of offences because theft and bribery were not offenses of a similar character. It was however held that although the two offences were different in character, they were founded on the same facts as the evidence clearly demonstrated that the bribe was offered, within in a very short time after the appellants had been arrested. This demonstrates that it is not necessary that the offences are of the same character and nature as a condition precedent to their inclusion in one charge under different counts. The above is true notwithstanding section 135(1) which provides that:
"Any offences, whether felonies or misdemeanours, may be charged `together in the same charge or information if the offences charged, are
30
(1943) 1 EACA121. Page 129 of 382
founded on the same facts, or form or are part of a series of offenses of the same or a similar character".
Other cases show that even if a defect is noted in the charge, the defect will not warrant the conviction to be quashed, unless and until the defect has occasioned a failure of justice31. The Kenyan, case of Kamwana s/o Mutia –vsR32 elaborates further. In this case, the question which arose was whether the trial would be a nullity where there was a joinder of counts for dissimilar offences in one charge sheet. The appellant appealed against conviction and sentence on three counts involving 'theft' 'breaking and entering premises' and 'therein stealing money', and on a fourth count for possession of 'bhang'. The fourth count of possessing 'bhang' was not treated as an issue at the trial, but when the appellant had been convicted on the other three counts, he asked that this offence should be taken into consideration whereupon the Magistrate purported to convict him of this offence also, and imposed for it a separate sentence. On appeal, the Supreme Court of Kenya held that the count charging the appellant with possession, of 'bhang' should not have been included in the same charge sheet with the three other dissimilar counts; but since no injustice resulted from the improper joinder, the trial of the other three should not be treated as a nullity. This shows that so long as the anomaly of misjoinder alleged does not occasion an injustice, courts are ready to disregard the impropriety of the technicalities and deal with 'substantial justice'. The above position prevails even in English courts which are not persuaded to quash a conviction unless the misjoinder has occasioned a failure of justice. The English decision in R –vs- Muir33 is in point. The appellant was convicted upon an indictment which charged four offences, two of rape of a young girl on two
31 32 33
Seidi -vs- R (1969) EA 280. (1958)EA471. (1938)2 ALL E.R 516. Page 130 of 382
different occasions, a third of stealing from the girl's father, and a fourth of indecent assault on a totally different person who was a married woman. He appealed on the ground that the two charges of rape and the one of indecent assault should not have been tried together. The court held that those two dissimilar offences should not have been charged together in one indictment. However, the court only ruled as to the desirability of the two dissimilar offences being tried (and charged) separately and upheld the conviction noting that the impropriety did not occasion a miscarriage of justice to the accused.
There are cases for which, it is desired that the counts be charged together. This was discussed at length in the case of Kamau s/o Muga –vs- R34. The applicant was convicted on three counts namely: causing death by dangerous driving, driving under the influence of alcohol and driving an unlicensed public vehicle. He appealed against the conviction and sentence on the first count. At the trial, evidence was adduced that there was a mechanical defect in the steering mechanism and that the appellant was under the influence of drink at the material time to such an extent as not to be capable of proper control. The crown invited the attention of the court to the case of R –vsMcbride35 and requested a direction in similar terms to that given by the Court of Criminal Appeal on the advisability of joining a count of driving when under the influence of drink with a count of causing death by dangerous driving. It was felt that generally an indictment containing a charge of causing death by dangerous driving should not include a charge of driving under the influence of alcohol but may properly be coupled with a charge of dangerous driving if the evidence regarding the influence of drink upon the driver is such as to justify it. Thus the dictum in R -vs- McBride (above) was approved. Therefore, a misjoinder of counts will not be occasioned where the 34 35
(1963)EA172, (1961)3W.L.R549. Page 131 of 382
offenses with which the accused person is charged are based on the same facts36.
H.
JOINDER OF PERSONS
Section 136 of the Criminal Procedure Code spells out the circumstances under which persons may be joined as co-accused persons. The said circumstances include the following:
(a)
Persons accused of the same offence committed in the course of the
same transaction; (b)
Persons accused of an offence and persons accused of abetment, or of an attempt to commit the offence.
(c)
Persons accused of having committed offenses created under the Penal Code or any other law committed by them jointly within a period of twelve months.
(d)
Persons accused of different offences committed in the course of the same transaction.
(e)
Persons accused of an offence under chapters XXVI to XXX of the Penal Code (both inclusive).
(f)
Persons accused of an offence relating to counterfeit coins under chapter XXXVI of the Penal Code.
For purposes of section 136(h), a person is said to have abetted and aided another if it can be demonstrated that they participated in the same transaction and that in the course of the said transaction he actively assisted in the continuance or completion of the offence that is called into question. However,
36
Kityo -vs- Uganda (1967) EA 23 Page 132 of 382
there is no clear definition of 'same transaction' and what is the same transaction will be subjectively judged from the peculiar circumstances of each case. The requirement that persons who are jointly charged must have participated in the course of the same transaction is important so far as that constitutes 'the same transaction'. The case of Nathani -vs- R37 is illustrative of the point. The facts of this case were that the appellant who was a proprietor of a travel agency, was charged together with a public officer, on a number of counts. The appellant was convicted on one count of wrongfully and corruptly giving money to a public officer. The Public Officer was convicted in the same trial for wrongfully receiving the said bribe. The appellant lodged an appeal. One of the grounds was that there had been a misjoinder of parties. The East African Court of Appeal held that there had been no such a misjoinder because the concatenation of events was uninterrupted and therefore the offences constituted the same transaction. In the case of Yokobo Uma and Another –vs- R38, the two appellants were charged and tried jointly. The offence against each was "doing an act intended to cause grievous harm". The first appellant alone was charged on the second count. The particulars of each alleged offence showed that the incident said to involve the first appellant had occurred on a different date at a different place and with a different weapon from the one said to involve the second appellant. The complainant was the same in each count. They appealed against the convictions. Sir Udo Udoma CJ ruled that the charge as laid was bad in law for misjoinder. The law relating to joinder of persons is that those who join in the commission of an offence, may be jointly indicted for it or each of them may be indicted separately. Thus if several people commit a robbery or murder, they 37 38
(1965) E.A 77. (1963) E A 542. Page 133 of 382
may be indicted for it jointly or severally. [And] although they have acted separately yet the essence of the law of joinder is that it gives the legal imprimatur allowing the charging of persons jointly or severally. However, where two persons are jointly charged with one offence, convictions cannot stand against both of them on evidence that an offence of that nature was committed by each of them independently. This is the jurisprudence from R -vsScaramanga39. Although misjoinder of parties is undesirable, it is a curable irregularity which does not render the trial a nullity. However, it is a reason which may sometimes justify the quashing of a conviction and invite an order of a trial de novo.
I. DUPLICITY It is a requirement of law and practice that a charge, should not suffer from duplicity; that is to say:
"No one count of the indictment should charge the prisoner with having committed two or more separate offences40".
This for our purposes will suffice as a definition for the term 'duplicity'. The same definition is also attributable to the English case of R -vs- Molley41. What is contemplated by the definition can be illustrated in the old English case R -vs- Devett42 where the charge read; "On diverse dates between January 1909 and October 4th 1910" and in another count; "On diverse dates between
39 40
41 42
(1963)2 All. E.R 582. Archbold J.F; Archbold: Pleadings, Evidence and Practice in Criminal cases, London, Sweet & Maxwell, 5th ed., 1962 at 53. (1921)2 KB 364, 8, C&P 639. Page 134 of 382
October 4th 1910, and the end of February 191343. Such a charge is defective in that there is a considerably long stretch of time between the counts. These are two offences which should receive separate treatment. But where the offences charged consist of one single act they may be made the subject of a single count. For instance, when the prisoner was charged in one count with uttering a number of forged receipts, and it was proved that all the forged receipts were uttered at one and the same time, in one bundle, the count was held good and not bad for duplicity. This was the case of The King -vs- Thomas44. Likewise, a man may be indicted for battery of two or more persons in the same count where the battery is one transaction, or for a libel upon two or more persons when the publication is one (single) act, without rendering the count bad for duplicity. This was stated in the case of R -vs- Benfield45. What the above judicial authorities indicate is that a count charging a person with one endeavour to procure the commission of two offences is not bad for duplicity because the endeavour is the offence charged. This is in fact given judicial restatement in the case of R –vs- Fuller46, which case re-stated the above position. A charge may be duplex but if the duplicity does not occasion a failure of justice, the conviction, therefrom must stand. A case in point is R -vsThompson47. This case involved duplicity in the charge, which charge was formulated to the effect that:
"On diverse days between the month of January 1909 and October 1910", and an other count "on diverse days between October 4th, 1910 and the end of February 1913..."
43 44 45 46 47
R -vs- Thompson (1914) 2 K B 99. R -vs- Thomas 2, East P.C 934. 2, Burr. 980, 983. IB & PP 180. (1914) 2 KB 99. Page 135 of 382
Objection was taken that the charge (indictment) was bad for duplicity. The objection, being overruled by the lower court became the subject matter of the appeal from the conviction. It was held that the indictment was bad in that it charged more than one offence in each count; but that as the prisoner had not in fact been prejudiced in his defence by the presentation of the indictment in that form, there had been no miscarriage of justice and the appeal dismissed. This conforms to section 382 of the Criminal Procedure Code which provides that unless the form of charge and the defects therein cause a failure of or miscarriage of justice, a conviction will not be quashed or a trial rendered a nullity only on account of such an anomaly.
Duplicity occurs even where the charges are framed in the alternative. In Adam Mwandalafu –vs- R48 the appellant was charged on alternative counts with arson and attempted murder. The particulars of the charge of arson stated that the appellant set fire to two houses, one of K and the other of N. The house of N was more than hundred yards from K's house. The particulars of the charge of attempted murder stated that the appellant attempted to cause death of K and his wife by setting on fire two houses; one of K and the other of N. After the assessors had given their opinions and before judgment was delivered the trial judge noticed that both the counts were bad for duplicity, but considered that it was too late for the irregularities to be cured by amendment. The judge purported to invoke section 346 of the Tanzanian Criminal Procedure Code in relation to the first count of arson and held that the first count, although bad for duplicity, had occasioned no failure of justice. As regards the duplicity in the second count, in referring to setting on fire or more than one house the judge, disregarded the reference to the burning of NTs house. The appellant was
48
(1966)EA459, Page 136 of 382
convicted on both counts notwithstanding that the two counts were stated in the information to be in the alternative and was sentenced to concurrent terms of three and six years' imprisonment. On appeal, the Court of Appeal for East Africa held inter-alia that:
i)
the appellant could and should have been charged with two offences arising out of the two acts of arson, but charging of these two offences as one had not occasioned a failure of justice. The irregularity was curable by the court under sect-ion 346 of the Tanzanian Criminal Procedure Code, that:
"No finding sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the complaint, summons, warrant, charge… or other proceedings before or during the trial in any inquiry or other proceedings under this code unless such error, omission or irregularity has in fact occasioned a failure of justice." (ii)
the alleged attempted murder on two occasions of K and his wife, first by burning K's house and then by burning N's house when K and his wife took refuge there after K's house had been destroyed, should have been the subject of two separate counts and each count should have charged the attempted murder of either K or his wife and not both together;
(iii)
the duplicity in the second count and the judge's disregarding of the reference to the burning of N's house were irregularities curable under section 346 afore-noted;
(iv)
that the proper course where there are alternative counts is to convict and sentence on one hand and to make no finding on the other;
(v)
that the charges of arson and attempted murder are not cognate offences Page 137 of 382
such as could properly be charged in the alternative.
There are, however, other cases which may be charged together in one count without rendering the charge duplex. In Mwangi -vs- R49 the appellant was found in possession of a revolver and eight rounds of ammunition which had been stolen thirteen months earlier at a time when he was in prison. He was convicted on a single charge of being in possession of the revolver and the ammunition without a firearms certificate and of receiving the revolver knowing it to have been stolen. On appeal it was contended that the first charge was duplex in that the firearm and the ammunition should have been charged separately. Bennett -J- held that the firearm and the ammunition may be charged in one count.
The question of duplicity also received judicial consideration in the case of Saina -VS- R50. The appellant was charged on a single count with the offence of house-breaking, theft and handling stolen property. The Magistrate found he had committed all the offences and sentenced him for handling. On appeal, Sir James Wicks CJ and Trevelyan -J- held that each offence must be set out in a different count and that failure to do so is an incurable illegality. The court followed the earlier decision of Cherebe Gukuli –vs- R.51 The reasoning behind this was that had the charge sheet been given proper consideration, it would have been seen that the first count charged not the permitted one offence, but three i.e shop breaking contrary to section 306(a) of the Penal Code, theft under section 275, and handling against section 322(2). This created confusion, and a number of errors were made. The court re-stated section 135(2) of the Criminal
49 50 51
(1974)EA108. (1974)EA83. (1955)22 E.A.CA 478. Page 138 of 382
Procedure Code that where more than one offence is charged in a charge or information, a description of each offence shall be set out in a separate paragraph of that charge or information, called a count. The court approved R vs- Boyle52, which was mainly concerned with the procedure to be adopted where several offences appear in the same charge or indictment, the court, dealing with the charging of alternative counts said:
"For instance, where there are counts of stealing and receiving, it is proper that the two counts should be put separately..."
It is this dictum which Sir Wicks CJ and Trevelyan J followed. The courts in this country have followed the above and to quote Trevelyan J;
"So it is the proper procedure in this country. It is, of course, in order to charge theft and handling in one charge or information; Rita –vs- R53, but it must be done in separate counts.”54
It is, therefore, a settled law that a count which charges two offences is bad for duplicity, and that a conviction based on it cannot stand. However, if the form of preferring the charge is permitted by statute it cannot be said to be bad for duplicity even if it charges two or more offences.55
J. ALTERNATIVE CHARGES As discussed above, the rule relating to duplicity prohibits a situation 52 53 54 55
(1954)2ALLER721. Section 137(a) (v) Criminal Procedure Code Cap 75. E.A.C.A Cr. App, No.66 of 1972 (Unreported). (1974) EA 83, at 84 para. D. Page 139 of 382
where two substantive offences are charged under the same count and ordinarily even in cases where one charge has several counts to it, it is a mandatory requirement of the law that the counts should be set out separately and the two should be numbered consecutively56. However, sometimes a single charge may contain charges which are alternative to each other. Alternative charges are normally justified in circumstances where the factors attending the offence in question are not very clearly focused with the consequence that it is not easy to discern which offence was actually committed. A good example is where a person is thought to have stolen property contrary to section 275 of the Penal Code yet the prosecution is not certain that the accused actually stole. An alternative charge of handling suspected stolen property contrary to section 322 of the Penal Code maybe preferred against the accused person. In such a case where an accused is charged with alternative charges, the prosecution has a widened scope of adducing evidence in support of either of the charges. However, this must not be seen as an indiscriminate exercise where the prosecution may arraign any person before the court without any proper reason. It should be understood in context as a benign provision for enabling the prosecution to proceed where there are actual uncertainties.
K.
AMENDMENT OF CHARGES
The Criminal Procedure Code spells out the instances and situations when a charge or an information may be amended. Section 214 (1) provides that where at any stage of a trial before the close of the prosecution case it appears to the
56
See also the case of Kababi -vs- R (1980) KLR 95 (HCK). In this case the appellant was charged in one single charge with causing death of three persons by dangerous driving and no objection was raised on the form of the charge. On appeal it was held that the failure to file three separate counts did not occassion any failure of justice. However, the apparent conflict in a number of decisions should not blur the law. The true test should be whether injustice and prejudice has been occassioned by duplicity. If not, substance should not suffer at the altar of form. Page 140 of 382
court that the charge is defective either in form or substance, the court may order for its amendment to bring it in line with the required style. Once the charge has been amended an accused person should be called upon to plead to the amended charge. However, a simple variance between the charge and the evidence adduced in support of it with respect to the time of which the alleged offence was committed is not material and the charge need not be amended for the variance if it is proved that the proceedings were in fact instituted within the time (if any) limited by law for the institution thereof57. For the amendment of an information, section 275(1) requires that every objection to an information for a formal defect on the face thereof shall be taken immediately after the information has been read over to the accused person and not later. When an information is amended a note of the order for the amendment shall be endorsed on the information and the information shall be treated for all purposes of all proceedings in connection therewith as having been filed in the amended form58. On the question of amendment, it has been observed that the court has wide discretion and may amend the charge even after the close of the prosecution case. This was judicially recognized in the case of Maulidi Abdalla Change –vs- R59. In this case, a charge was amended at the close of the case for the defence with the result that a new charge with a heavier penalty was introduced. Sir Ralph Windham stated, inter-alia, that a charge can be substituted even alter the close of defence, but the substituted charge can only be allowed if it will not occasion injustice to the accused person. This decision explains the position in Kenya, notwithstanding the fact that it emanated from Tanzania. This position had been recognized even earlier in the case of Benjamin
57 58 59
Section 137(a) (v) Criminal Procedure Code (Cap 75). Section 275(3) Criminal Procedure Code (Cap 75). (1964) EA 122. Page 141 of 382
Sauzier -vs- R60 where the appellant appealed against his conviction of attempted arson. The appeal was dismissed but the appellate court commented on the aspect of amending the charge after the close of the case for the prosecution. It was noted that at the close of the case for the prosecution, the evidence having disclosed an attempt of arson only the trial judge upheld a submission of no case to answer, but having regard to the provisions of the Criminal Procedure Code, ordered that the charge be amended to 'attempted arson' and took the appellant's plea on the amended charge. The court held inter-alia that it is not necessary to amend a charge of committing a full offence in order to convict an accused of an attempt. The court had no indication that it cannot exercise its jurisdiction to amend charges and amend after the close of the case for the prosecution.
L. AMENDMENT AFTER CONVICTION
A further question that warrants deeper consideration is whether a court that has convicted has jurisdiction to amend the charge after the conviction. This was considered in the case of Yusuf Maumb -vs- R61. In this case, the trial Magistrate had convicted the appellant and then amended the charge and sentenced the appellant. On appeal, it was held inter-alia that the Magistrate had no power to amend the charge after conviction as he was functus officio. This was also recognised in the English case of R –vs- Guest62.
M.
QUASHING OF INFORMATION
It was the rule of common law that if an indictment or inquisition was
60 61 62
(1962)E.A. 50. (1966)EA167. (1964)3 All. E.R385. Page 142 of 382
bad on the face of it, or if there was any such insufficiency either in the caption or in the body of an indictment as would make erroneous any judgment whatsoever given or any part thereof, the court might in its discretion quash the indictment63. For instance a number of persons may not be indicted jointly for an offence which must be several. Thus in R –vs- Tucker64 an indictment against six persons for unlawfully exercising a trade was quashed because it was a distinct offence in each case and could not be made the subject of a joint prosecution.. In R -vs Phillips65, judgment was arrested on an indictment of six persons for perjury (to which four pleaded and were convicted) on the ground that the offence was in its nature several and two people could not be indicted together for it. In several instances, indictments have been quashed because the facts stated in them did not amount to an offence punishable by law. Thus an indictment for libel was quashed the expression used in the alleged libel not being prima facie libelous, and the indictment containing no averments or innuendos showing that those expressions were intended to impute improper conduct to the prosecutor. This was in the English case of R –vs- Yates66. It has however been stated in R -vs- The Chairman of London Sessions ex Parte Downes67 that a court is not entitled to quash an- indictment because an examination of the dispositions has led it to the conclusion that the prosecution would not succeed on any account. In Kenya, section 276 of the Criminal Procedure Code provides for quashing of an information. It is provided, that if an information does not state, and cannot by amendment authorized by section 275 be made to state an offence of which the accused has had notice, it shall be quashed either on a
63
64 65 66 67
See Archbold J.F: Archbold: Evidence, Pleadings & Criminal Practice, London, Sweet & Maxwell, 5th ed. 1962, at 88 4 Burr 2046 2 str 921 (1920)15 Cr. App. Rep. 15 at 1 b (1954)IQB I Page 143 of 382
motion made before the accused pleads or on a motion made in arrest of judgment. In the event that section 276 (above) is invoked, a written statement of every such motion shall be delivered to the Registrar or other officer of the court by or on behalf of the accused and shall be entered upon the record.68
N.
CONCLUSION
It is of utmost importance that the person drawing up the charge must be conversant with the issue. An example is when a person enters a house with intent to commit a felony contrary to section 304 of the Penal Code. The drawer must be informed that if the accused entered the house during the day, the proper offence which should charged is house breaking. If on the other hand, the purported felon entered the house during the night, the proper offence to charge is that of burglary.69 Therefore, the law relating to charges should not be looked at solely from the Criminal Procedure Code but a perusal of the Penal Code or such other statute which creates offence is imperative. Such diligence will ensure that charges are properly framed and this will enhance the speed with which trials are conducted. The Constitution, in its spirit of ensuring justice and fairplay for all requires that all criminal trials be dealt with expeditiously. Further, if the charge as framed does not clearly state the offence charged the accused person cannot be said to have had adequate opportunities to prepare his defence. The Constitution requires that the offence be made well known to the accused. If this is not done, then the Constitution has been contravened as this will occasion an injustice. The upshot of this is that if a charge is defective, and the defect is of such a magnitude as to occasion a failure of justice, it is
68 69
See section 276(2) Criminal Procedure Code (Cap 75). See section 304(2) Cap 63 Penal Code. Page 144 of 382
unconstitutional and therefore even a plea of guilty to it cannot stand70.
70
Christopher Omufira Akwabi -vs- R, Cr. App. No. 131 of 1989. Page 145 of 382
CHAPTER SEVEN PLEAS A. INTRODUCTION Plea taking marks the commencement of the trial process in a criminal court. After a decision has been taken to prosecute an accused person he/she is brought before a court of law to plead to the charge(s) laid against him. Under Kenyan law offences may be divided into three distinct categories for the purpose of plea taking or commencement of trial namely; offences which require no consent71, offences which require the Attorney General's consent before plea taking72 and offences which require leave of Attorney General before institution of prosecution73. Whenever the law prescribes that the consent of the Attorney General must precede the plea, if this requirement is disregarded any plea taken in disobedience is null and void as was judicially recognised in the Tanzanian case of R v Telenge74 which is in pari materia. This chapter deals with this important stage in the process of criminal trials.
B. PLEA TAKING IN SUBORDINATE COURTS
The procedure and the manner in which pleas are taken is dictated by the Criminal Procedure Code as intepreted through case law over the years.
71 72
73
74
These cover most offences triable by magistrates courts. These include offences such as incest by males arid incest by females contrary to sections 166 and 167 respectively o'l the Penal Code cap. 63 of the Laws of Kenya. These cover offences by Foreigners within Territorial waters pursuant to section 143 of the Criminal Procedure Code Cap 75 of the Laws of Kenya. [1967] EA 407 (HCT). Page 146 of 382
C.
RECORDING OF PLEAS When an accused person appears for trial, the charge must be read and if
need be explained to him in the language that he understands well. Or the charge may be interpreted by the Court interpreter, after which the accused will be required to plead instantly thereto unless the law stipulates otherwise. When the services of an interpreter are employed, this should be reflected in the proceedings. In the East African Court of Appeal, decision of Desai v Republic75, it was held among other things, that wherever interpretation was required the facts should be recorded together with the name of the interpreter and the languages used. The same work, in Hando son of Alwnaay –vs- R76 ruled that:
"As has been said before by this court, before convicting on any such plea, it is highly desirable not only that every constituent of the charge should be explained to the accused, but that he should be required to admit or deny every such constituent".
Where an accused intends to plead guilty or the court thinks he is pleading guilty, problems arise which may affect the administration of justice if the court is not scrupulous enough in recording the plea. In the first instance an incorrect plea of guilty could mean injustice to the accused person himself. On the other hand, a criminal, who should be serving his term of imprisonment after a conviction on his own admission for his part in the crime, may be set at large by the appellate court on the ground that the trial court convicted on a plea which was improperly recorded. The Court of Appeal then clearly set out the procedure in recording pleas: 75 76
[1971] EA 416 (From HCT) [1951] E.A.C.A 307 Page 147 of 382
"When a person is charged with an offence, the charge and the particulars thereof should be read out to him so far as possible in his own language, but if that is not possible, then in a language which he can speak and understand. Thereafter the court should explain to him the essential ingredients of the charge and he should be asked if he admits them. If he does them, his answer should be recorded as nearly as possible in his own words and then a plea of guilty formally entered. The prosecutor should then be asked to state the facts of the case and the accused be given an opportunity to dispute or explain the facts or to add any relevant facts he may wish the court to know. If the accused does not agree with these facts as stated by the prosecutor or introduces additional facts, which if true might raise a question as to his guilt, a change of plea to one of not guilty should be recorded and the trial should proceed. If the accused does not dispute the alleged facts in any material respect, a conviction should be recorded and further facts relating to the question of sentence should be given before sentence is passed".
Where there is more than one accused jointly charged, the plea of each should be recorded separately. And if a charge or indictment contains several counts the accused must be asked to plead to them separately. Just as there must be a separate sentence for each count on which a conviction is recorded, an "omnibus" plea of guilty is unlawful. To obviate this the East African Court of Appeal set out the proper procedure to be followed in the case of Adan v Republic77 as follows:
77
[1970]EA24. Page 148 of 382
(i)
That the charge and the particulars of the offence should be explained to the accused, in the language that he/she understands.
(ii)
That the plea should as far as possible be recorded in the words of the accused.
(iii)
That in the event of a plea of guilty the fact should be stated to the accused, and he/she should be granted an opportunity to respond.
(iv)
That if an accused disputes the facts of the charge a plea of 'Not guilty’ must be entered.
(v)
Where there is more than one accused jointly charged, the plea of each should be recorded separately. And if a charge or indictment contains several counts the accused must be asked to plead to them separately.
(vi)
In the event that an accused does not change his/her plea, a plea of guilty should be entered and a conviction recorded and after mitigation and facts relevant to sentence are taken the sentence can be meted out.
Whenever a plea of guilty is to be entered, great caution, must be exercised because as the court said in the case of Byarutu Gata v R78, the word 'guilty' is one to be treated with the greatest caution. It is a technical expression. The justification for this caution was captured in the case of M'Mwenda v R79 where the court said inter alia that there is no word exactly corresponding to it in any of the languages of Uganda and Kenya.
D. PLEA OF AUTREFOIS ACQUIT, AUTREFOIS CONVICT, AND PARDON
The Criminal Procedure Code provides at section 219 that an accused 78 79
[1950] 17 E.A.C.A 125. [1957]E.A. 429. Page 149 of 382
person may plead that he has previously been convicted or acquitted of the same offence or that he has obtained the President's pardon for the offence. The words 'autrefois acquit' and 'autrefois convict' may not be specifically mentioned in the body of the Criminal Procedure Code but the principle of law is the same, that is, a person should not twice be put in jeopardy for the same offence; hence the use of the words in the head note. The principle of law is that on a plea of 'autrefois acquit' or 'convict', the test is not whether the facts relied upon are the same at the two trials, but whether the acquittal or conviction on the previous charge involved an acquittal or conviction on the subsequent charge. This rule of 'autrefois convict' or 'acquit' applies not only to the offence actually charged in the first charge or indictment, but also to any offence of which the accused could have been acquitted or convicted. When an accused person pleads that he has obtained a pardon, should the plea be successful after a trial, then the accused is not acquitted but discharged. The same for an accused who pleads 'autrefois acquit'. Such a discharge 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.
E. CHANGE OF PLEA AND THE FUNCTUS OFFICIO RULE There are times when in the middle of a trial an accused might wish to change his plea from one of 'not guilty' to that of 'guilty'. It is not sufficient for the court only to make note of the accused's decision to change his plea. Just as there can be a change from a plea of "not guilty" to one of "guilty", there is nothing in law which, forbids the withdrawal of a plea of guilty by an accused person. But this should be allowed only in very clear cases, where, for example, the accused may have misunderstood the charge.
Page 150 of 382
In Kamundi v R80, the court said, there are no provisions providing for a plea to be changed, but there are equally no provisions to present a plea being changed before the court becomes "functus officio". The court then held that “a Magistrate had judicial discretion to allow a change of plea before passing sentence or making some order finally disposing of the case and in this case his discretion had not been judicially exercised". In the earlier case of Maumba v R81 the Court of Appeal also stated the Magistrate's powers to allow amendment exists only during trial, before conviction and before the court becomes 'functus officio'. In England the Queen's Bench Division in R v Guest exp. Anthony82 held that where an unequivocal plea of guilty had been accepted by a Magistrate's court. The court was 'functus officio' with regard to the conviction or acquittal, and neither 'mandamus' nor 'certiorari' should issue with a view to further proceedings inconsistent with that plea being taken. The House of Lords later overruled the R v Guest case in S (an infant) v Manchester City Recorder and others83 in which the House of Lords held that a court of summary jurisdiction which had accepted a plea of guilty to an offence is not in law debarred from permitting at any time before a sentence a plea of not guilty to be substituted. This was the decision, which was followed by the Court of Appeal for East Africa in Kamundi’s Case. Therefore the "functus officio" rule in East Africa and particularly in Kenya can be stated thus; when a court has determined a case by passing sentence, it is "functus officio" and has no power to re-open the case either of its own motion or on the application of the prosecution or of the defence.
80 81 82 83
[1973] EA 540. [1966] EA 167. |964]3 ALLER 385. [1969) 3 All CR 1230. Page 151 of 382
F.
PLEA BARGAINING Plea bargaining is not practised in the Kenyan Legal System as it would
be deemed to negate a free and voluntary plea84. The attitude of Kenyan courts regarding the role of Advocates on matters of sentence has been consistent that advocates have no say in matters of sentence which are peculiarly within the province of the trial court85 and that the prosecution have no business in passing judgment on the gravity of an offence86. Although it is not unusual to have accused persons plead guilty to lesser offences, for example in cases of murder to manslaughter this even if done through the subtle machinations of counsels for the prosecution and defence should not be confused for plea bargaining as practised in the United States of America87.
84
85 86 87
See the case of Sabur v R (1958)EA 126 (HC4) which although a colonial case represents contemporary Kenyan criminal Jurisprundence. Wanjema v R [1971 ] EA 493 Shiani v R (1972) E.A.557 (HCK) W.P. Mclauchlan, American Legal Processes ([New York]: John Wiley & Sons 1977),PP. 125126 Page 152 of 382
CHAPTER EIGHT
TRIAL PROCEDURE IN THE SUBORDINATE COURTS
A. INTRODUCTION The courts subordinate to the High Court and Courts-martial are established by section 65 (1) of the Constitution and have such jurisdiction and powers as may be conferred on them by any other law. Section 65(2) of the Constitution gives the High Court jurisdiction to supervise criminal proceedings before a subordinate court or court-martial for the purpose of ensuring that justice is duly administered by those courts. Section 67 of the Constitution provides that the subordinate court make references to the High Court in matters relating to constitutional interpretation involving substantial questions of law. The Constitution also provides for the establishment of a Chief Kadhi and such number, not being less than three, of other Kadhi's as may be prescribed by or under an Act of Parliament. The subordinate courts to the High court are divided into: The Chief Magistrate's Court The Principal Magistrate's Court The Resident Magistrate's Court The District Magistrate's Court. These are distributed countrywide in each of the provinces and districts. They are presided over by Magistrates or persons qualified to hold such office appointed by the Judicial Service Commission of Kenya.
B.
THE STRUCTURE AND JURISDICTION OF THE CRIMINAL COURTS
Kenya has a court structure which operates at different levels. The court at each level has power to deal with certain cases which is described as jurisdiction. Page 153 of 382
Jurisdiction, can be limited to a prescribed area or subject matter. The District Magistrate class two only has original jurisdiction. The District Magistrate's court is established by the Magistrate's Court Act (Cap 10). They exercise jurisdiction throughout the district in respect of which they are established. A person convicted on a plea of guilty has no right of appeal except as to the extent or legality of his sentence. Appeals from the first class District Magistrate's court lies in the High Court. The Attorney-General may appeal to the High Court against an acquittal on a matter of law from a subordinate court. The Resident Magistrate's court is also established by section 3 of Magistrate's Court Act. Persons appointed must be advocates of High Court of Kenya or hold an equivalent qualification for example State Counsel and have two years experience. The Chief Magistrate's court's jurisdiction is wide and embraces most crimes. But they have a limited appellate jurisdiction. There is also a further right of appeal to the High Court.
C. TRIAL PROCEDURES (i) The Prosecution Case A criminal trial commences when an accused is called to take his place in the dock. Then the charge is read and explained to him and asked if he understands it. He is asked whether he pleads guilty or not. Section 207 of the Criminal Procedure Code States that if an accused admits the truth of the charge, his admission shall be recorded as nearly as possible in the words used by him and the court shall convict him and pass sentence upon or make an order against him, unless there appears to it sufficient cause to the contrary. An accused should plead by his own mouth and not through his counsel Page 154 of 382
or pleader88. Any admission made by his pleader is not binding on him, However, different considerations arise where the personal attendance of the accused has been dispensed and he is permitted to appear by pleader. Where the plea of guilty is recorded without explaining the offence alleged, the conviction based on such a plea will not be sustained and must be set aside. A person accused of an offence may of right be defended by an advocate. It is the responsibility of the accused to ensure that his advocate is present. The Magistrate should also ensure that the accused has had opportunity to access/seek the services of an advocate before hearing89. The accused must be present throughout the- trial. In the case of Afumu & Another –vs-R90, the accused, a driver and owner of African Omnibus was jointly tried and convicted of assault causing actual bodily harm contrary to section 246 of the Penal Code. When the principal witness of the prosecution, was about to give evidence, the second accused was absent. His advocate asked for adjournment which was refused. The witness gave evidence in absence of 2nd accused but in the presence of his advocate.
After conviction, the
Magistrate elected to give his experience in the district of misconduct of African Omnibus owners which he used as a ground for imposing an enhanced sentence on the accused. The accused appealed. On appeal it was held inter alia, that the trial was illegal. In certain circumstances the Magistrate may dispense with the presence of the accused during trial91. Non-appearance, will not hinder the court from proceeding with hearing. But the Magistrate has no power to do this in the case of a felony in which case the accused must be present throughout. In
88 89 90 91
It is to be assumed that the term 'word of mouth' includes sign language where applicable. Section 194 Criminal Procedure Code (Cap 75). (1953)26 KLR 87. Section 99 Criminal Procedure Code (Cap 75). Page 155 of 382
Narrothandas Vithlam –vs- R92, the appellant was convicted of fraudulent accounting (felony). He had been absent at the opening of his trial due to sickness but his advocate agreed that the trial should proceed in his absence. On appeal, the High Court quashed the conviction and ordered, a new trial before another Magistrate. A Magistrate must record evidence himself in good legible handwriting in narrative form.93 For instance, "Do you remember what happened on the night in question?” "Yes I remember I was on night duty when thieves came and attacked the house I was guarding". Evidence taken before another Magistrate in one criminal trial cannot be treated as evidence in similar criminal cases before the same Magistrate involving the same accused. The only legitimate object of the prosecution is to secure not a conviction but to see that justice is done. When a plea of not guilty is entered, the prosecution opens the case, gives a brief outline of the prosecution's case indicating who it intends to call as witness. The prosecutor is entitled to address the court94. The prosecution's speech is not evidence and the Magistrate comments nothing unless it raises a point of law or procedure. The witnesses are numbered as Prosecution Witness (PW1) one and must give evidence on oath. A trial Magistrate must make it clear that the accused will be given opportunity to cross-examine. The prosecution should lay before court all material evidence available to it for unfolding its case95. If a prosecution gives up a material eyewitness on the ground of close relationship, his non-examination cannot be said to destroy the fabric of the prosecution case which is proved by the evidence of
92 93 94 95
(1957) EA. 343. Section 197 Criminal Procedure Code (Cap 75). Section 213 Criminal Procedure Code (Cap 75). See R v Daniel Ole Osoi, Cri. Case No. 2.422 of 1996 Where the Magistrate ruled that the prosecution was enjoined under section 77(e) of the Constitution to provide the defence with a list of its witnesses and their statements. The Attorney-General has since appealed against the ruling. Page 156 of 382
other eye-witnesses and corroborated by other evidence. When a witness is declared hostile by the prosecution, part of his evidence which is in conformity with the other evidence could be relied upon. After the testimony and examination of all prosecution witnesses, the prosecutor will inform the court that his case is closed.
(ii) Prima Facie Case After the close of the prosecution's case the court is enjoined to determine whether the prosecution has established 'a prima facie' case against an accused person before it can place him/her on his/her defence. The criminal procedure code does not define what constitutes 'a prima facie' case but the defunct Court of Appeal for East Africa defined a 'prima facie' case in the often quoted case of Ramanlal Bhatt v R96 as...
"...one which a reasonable tribunal properly directing its mind to the Law and the evidence would convict if no explanation is offered by the defence".
If a finding is made that the prosecution has not established a prima facie case then the accused will be acquitted. Conversely, if the court finds that a prima facie case has been established then the court will explain to the accused his/her rights to remain silent, give an unsworn statement or to render a sworn statement. If the accused is not acquitted the Magistrate calls upon him to enter on his defence. It is an essential part of a criminal trial. An omission to do so occasions failure of justice and is not curable. The Magistrate explains the charge and the difference between sworn and unsworn statement in accordance
96
(1957)EA332 (C.A) Page 157 of 382
with the requirements of section 211 of the Criminal Procedure Code.
(iii)
The Defence Case The accused shall call his witnesses referred to as Defence Witnesses
(DW) in any order he wants. He has a right to address the court at the commencement and in conclusion of his case. The prosecution shall reply after the accused has addressed the court in conclusion. The accused may apply for issue of process to compel attendance of witnesses or production of documents or thing and unless the Magistrate considers the application vexatious or made for the purpose of delay or defeating the ends of justice, shall issue such process. The Magistrate should record his reasons for refusal. Majority of Criminal cases in Kenya are defended by the accused without the assistance of an advocate. The procedure in conducting a defence is for the accused to give his evidence first. This was the holding in R v Malakwen arap Mutei97. It is a mistake in procedure to allow the accused to give his evidence after he has called witnesses for the reason that as an accused he is present in court during the whole of the hearing and should he not give his evidence first he will have the advantage of listening to his own witnesses give evidence. The court may, before or during the hearing of a case, adjourn the hearing to a certain time and place to be appointed and stated in the presence and hearing of the parties or their respective advocates then present98.
D.
SUBMISSIONS After the prosecution and the defence have closed their cases the law
permits them to make a final address through submissions99. Ordinarily, the accused or his counsel has the right to begin, but the right of the
97 98 99
(1949) 22-23 KLR 132. Section 205 Criminal Procedure Code. Section 310 of the Criminal Procedure Code. Page 158 of 382
prosecution to reply is delimited by the law100. If the accused has adduced evidence, the prosecution has an automatic right of reply but where only the accused person testifies the right of reply by the prosecution is only exercisable if the Attorney-General or the Solicitor General appear in person. It is noteworthy that in the case of R –vs- George Ochieng Omodho101 the court allowed a Principal State Counsel to address the court after the accused had given an unsworn statement in his defence and called no witnesses. Although this was permitted the correct legal position is that unless the statute is amended the decision in the Omodho case must be treated as anomalous.
100
101
Section 161 of the Criminal Procedure code see also the case of Joseph Mbebi s/o Mali and others versus R 1957 EA 426 (SCK). Criminal case No. 9 of 1989 High Court of Kenya Kisumu (unreported). Page 159 of 382
CHAPTER NINE
TRANSFER OF CASES
A. INTRODUCTION The provisions for transfer of criminal cases from one court to another are based more on the principle of meeting the ends of justice and securing public confidence on the independence and integrity of the court than imposing a check, and balance on the presiding officers. To do the latter would be to impute lack of fairness and impartiality on the part of the bench. Transfer of criminal cases is provided for in sections 78, 79, 80 and 81 of the Criminal Procedure Code1. The raison d’eitre of this provision is to allay any fears on. the part of the litigants that justice will not be done if the proceedings are allowed to commence or to go on before a particular Magistrate. The burden is on the applicants to show that circumstances exist that make him apprehend that he will not get a fair and impartial trial. The duty cast on the court is to decide whether or not there is an apprehension not founded on surmises and/or unproved allegations. The test to be used in determining the apprehension is that of reasonableness. The court is under an obligation to grant an application for transfer if it is of the opinion that certain circumstances which are, or tend to have a nexus with the case or the parties thereto are such that they have the effect of creating what E. Trevelyan, J 2 called
"reasonable apprehension in the applicants or any right
1 2
Cap.75 of the Laws of Kenya Criminal Procedure Code. John Brown Shilenje vs R - Cr. Appl. 180 of 1980. Page 160 of 382
thinking persons mind that a fair and impartial trial might not be had before the Magistrate."
B. FACTORS GIVING RISE TO A TRANSFER
Several factors may justify transfer of a case(s) from one court to another, these are;(i)
Where the trial, court has no jurisdiction in relation to the power of High Court;
(ii)
Where a fair and impartial trial cannot be had in any criminal court subordinate thereto;
iii)
Where some question of law of unusual difficulty is likely to arise;
(iv)
Where it will tend to be convenient to the parties or witnesses in the course of the trial; and
(v)
Where it appears that an order for transfer is expedient for the ends of justice or is required by any provision of this code,
Governed by the grounds set at above the High Court may order the transfer of a case from one court to another. Under section 78(1) the Criminal Procedure Code subordinate courts are also empowered to transfer cases. Section 78(1) provides inter alia
"If upon the hearing of a complaint it appears that the cause of complaint arose outside the limits of the jurisdiction of the court before which the complainant has been brought, the court may, on being' satisfied that it has no jurisdiction, direct the case to' be transferred to the court having' jurisdiction, where the cause of complaint arose."
Page 161 of 382
The power of subordinate courts to transfer cases is further reinforced, by section 79 which provides as follows as regards inter Magistrate transfer of cases;
"A Magistrate holding a subordinate court of the first class (a)
may transfer a case of which he has taken cognizance for committal proceedings or trial to any Magistrate, holding a subordinate court empowered to hold committal proceedings in respect of or try that case within the local limits of the first class subordinate courts jurisdiction; and
(b)
may direct or empower a Magistrate holding a subordinate court of the second or third class who has taken cognisance of a case, and whether evidence has been taken in that case or not to transfer it for committal proceedings or trial to himself or to any other specified Magistrate within the local limits of his jurisdiction who is competent to try the accused or commit him for trial, and that Magistrate shall dispose of the case accordingly.
The provisions of section 79 serve to reinforce the magisterial power of transfer. When the High Court is exercising its power of transfer it will act on a report of the lower court or on the application of a party interested or on its own motion3. Before effecting a transfer the High court is enjoined to consider the following factors:
3
Section 81(2), Criminal Procedure Code (Cap 75). Page 162 of 382
a) Jurisdiction
The High Court can make an order of transfer of a case if it is of the opinion that another court, subordinate to it and which is not having conduct of the trial, is better placed to deal with it. This may arise from the fact that cause of action, arose, and/or the collection of evidence will be made easy within the jurisdiction of that other court. A trial erroneously commenced in a court without territorial jurisdiction, will most certainly be transferred to another court of competent jurisdiction. A Magistrate's Court will entertain an application to determine its jurisdiction on being moved by one of the parties to the suit or on its own motion 4. It has to be established that the court to which case is being transferred has jurisdiction to try and determine the same.
b) Fair Trial The fairness of a trial is at the heart of every criminal justice system ipso facto it behoves the High Court to ensure that every trial is fair. Therefore, where it is established that the trial Magistrate has an interest in a case, pecuniary or otherwise, such situations and factors must give rise to a reasonable apprehension, on the part of a party to a case that justice will not be done and justify transfer. The applicant and/or complainant must show circumstances from which it can be inferred that he/she entertains an apprehension and that it is reasonable in the circumstances alleged. In John Brown Shilenje -vs- R5 the High Court held that a mere allegation of apprehension does not suffice; the court has to see whether the apprehension is based on reasonable grounds. Put another way, the apprehension must be real, honestly held and reasonably based. 4 5
Section 78, Criminal Procedure Code (Cap 75). Supra note 2. Page 163 of 382
(c) Question of Law Transfers under this heading normally take place from a subordinate court to the High Court, or from one subordinate court of superior jurisdiction 6. The object is to determine issues of law arising in the course of the trial at the earliest opportune moment and by judicial officers competent to determine them is not another way of appealing against a decision of court finally disposing of a criminal matter but a method by which a Magistrate's Court or the High Court, as the case may be, can authoritatively determine a point of law arising during the trial without jurisdictional handicap.
(d)
Convenience to Parties or Witnesses Transfer under this part is founded on the basis of expediting the court
process for a quick and fair determination of a case. The High Court in Kenya Matches Ltd –vs- R7, relied on this view when it transferred the trial from Kericho to Kisumu. It relied on the ground that the witnesses were in Kisumu, and accordingly granted it.
(e)
Expediency When expediency justifies then under section 81(I)(e) the High Court
may of its own motion order the transfer of case.
C.
EFFECT OF TRANSFER When an order of transfer is made, it is incumbent upon the court from
which the transfer is sought to stay proceedings. If the transfer Ls granted, the court to which the transfer is made is free to continue with the trial from where it was stayed. Otherwise it may start to hear the evidence afresh. It can be inferred from the foregoing that the transferee Magistrate is not-bound by 6 7
Section 81 of Criminal Procedure Code (Cap 75). Misc. Cr. Application No, 24 of 1992, HC, Kisumu (unreported). Page 164 of 382
earlier pre-transfer orders and/or decision, if any.
In conclusion, it should be borne in mind that the power of the High Court to transfer a case emanates from its unlimited original jurisdiction in both criminal and civil matters8. The power enables it to ensure that courts and other tribunals subordinate to it administer justice fairly, impartially and according to the procedure established by law. Transfer of cases is one avenue towards this end. Whereas it is apparent that the High Court and the Subordinate Courts have concurrent powers to try offences under the Penal Code9, majority of cases are tried by subordinate courts. Offences like murder, treason and like serious offences, as well as where substantial question of law or where question regarding a litigant's constitutional rights are involved, the High Court will normally preside over.
8 9
Section 60, Kenya Constitution Text of (1998) 1992 Ed. Cap 63 of the Law; of Kenya penal Code. Page 165 of 382
CHAPTER TEN SOME THOUGHTS ON COMMITTAL PROCEEDINGS1 A. INTRODUCTION
In order to understand committal proceedings it is important to understand the preliminary inquiry procedure which preceded it. Commenting on preliminary enquiry, Hogarth J said:
"To be of practical value to the court, pre-trial information should pass four tests namely: reliability, validity, relevance and efficiency.2"
It is the sufficiency test which is the basis of preliminary inquiries. To be sufficient, the information ought to be valid, reliable and relevant to the objectives of the court. It was this test of sufficiency of information or evidence that a preliminary inquiry needed to pass in order to warrant a committal. It is not easy to distinguish between preliminary inquiry and committal proceedings without first trying to illuminate more on the preliminary inquiry as practised before it was abolished in 1982.
B. PRELIMINARY INQUIRY The provisions governing preliminary inquiry were set in the Criminal Procedure Code sections 230-249. In the inquiry the court did not have to determine the guilt or innocence of the accused person. It had only to consider
1
Provisions relating to the Commital of accused persons for the trial before the High Court were repealed vide Amendment Act No. 5 of 2003. Nevertheless, this chapter is retained for historical reference. 2 Hogorth J, Sentencing as a human process, Toronto, Toronto University Press, 1971 pp 46 Page 166 of 382
whether the evidence was sufficient to put the accused person on his trial and in which case it committed him to the High Court – if the evidence against the accused was considered insufficient, he was discharged, However, this discharge was not a bar to the prosecution of the accused on any subsequent charge in respect of the same facts. The Magistrate's duty was largely mechanical. His principal task was to record the evidence during the inquiry. It could therefore be well argued that the time spent in the preliminary inquiry could more profitably be used in the actual hearing and determination of the case. Inconvenience to the witnesses was tremendous and hence the criticism of the process. It is noteworthy that objections to the preliminary inquiry ranged around the issue of time and expense. However, the inquiry served as an opportunity for the accused to know what the case against him was. The inquiry also provided a chance for the accused to challenge any evidence of the prosecution. It also afforded the accused an opportunity of appearing before a Magistrate with some dispatch and having his case investigated so that it could be determined whether or not there was sufficient evidence to put him on trial. Preliminary inquiry was abolished in 19823 and substituted with committal proceedings which had the basic idea that the accused person should be served with statements taken by the police from prosecution witnesses. If an accused person wished
to object to any of the statements, time was
allocated for the cross-examination of such witnesses by the accused or his counsel. On the other hand, if the accused did not object to the statements, he appeared before the Magistrate who considered whether or not the statements disclosed sufficient evidence to justify a committal. If satisfied, the Magistrate made a committal order which committed the accused person to the High Court for trial.
3
See Criminal Procedure (Amendment) Act of 1983. Page 167 of 382
Witnesses were
called when
necessary and this saved
time and
expenses.
Preliminary Inquiries in Kenya before December 1982 On 5th November 1982, amendments to the Criminal Procedure Code were passed which abolished prelimimary inquiries.
The then Attorney-
General Joseph Kamere advanced the following reasons for the amendment:
"The purpose of this Bill is twofold: clause (I) (2) (3) and (4) will speed up criminal trials by permitting either the prosecution or the defence to admit facts or witnesses' statements. This can be done to avoid calling witnesses whose evidence is purely formal or uncontested. There are safeguards to protect unrepresented accused4".
To understand the safeguards and speed as stated by the Attorney General in 1982, it is important to gain further insight into how the preceding preliminary inquiries worked. By definition, preliminary inquiry is an inquiry held to investigate the matter.
"An inquiry in an action was not limited to what a man could see with his own eyes; it signified a judicial inquiry with witnesses.5”
In Kenya Preliminary inquiries were held in Magistrate's courts. The prosecution witnesses were examined and also cross-examined, and their
4 5
The Kenya Gazette Supplement Bills 5th Nov. 1982 at 67. Stroud F, "Strouds Judicial Dictionary", London, Sweet & Maxwell Ltd., 1973 (Vol. 3). See also Wenlock -vs- River Dee Co; 19 Q.B.D 155. Page 168 of 382
evidence recorded in a deposition (document in which witnesses' evidence in the inquiry was recorded). The deposition would be read over to the witness and if he agreed with its contents (substance and accuracy) he would sign it. The Magistrate conducting the inquiry would also sign it. If the Magistrate considered that the prosecution had a prima facie case he would commit the accused to stand trial in the High Court.Preliminary inquiries in Kenya were regulated by the Criminal Procedure Code, a derivative of the 1925 Criminal Justice Act of England, which is regarded as one of the Statutes of General Application6. Under the provisions of the Criminal Procedure Code (as they were) the Magistrate took depositions of the prosecution witnesses who were subject to examination by the accused. . They would then sign if accurate. The fact that the inquiry was held to establish facts and was not
as
trial reflected badly on the fairness of the procedure. The same witnesses and the accused himself were the same persons who were required at the trial to lead evidence after a subsequent committal, and it was upon the state to bind the witnesses and the accused to appear at both the trial and inquiry. Section 242 read:
"When an accused is committed for trial before the High Court, the subordinate court…shall bind by recognizance…the complainant and every witness to appear at the trial to give evidence, and also to appear and give evidence if required at any further examination concerning the charge…"
The essence of preliminary inquiry was found in section 239 and 240 which related to the discharge or committal of an accused person. The sections had
6
Covered by section 3(1) of the 1967 Judicature Act. Chapter 8 of the Laws of Kenya. Page 169 of 382
also underlined the Magistrate's ultimate duty so explicitly put by CJ Cockburn as:
"The duty and province of the Magistrate before whom a person is brought with a view to his being committed for trial is to determine, on hearing the evidence of the prosecution and that for the defence that if there be any, whether the case is one in which the accused ought to be put on his trial. It is no part of his province to try the case...7"
Section 239 provided that once the prosecution had proved a 'prima facie' case against the accused, the accused would then be "committed for trial". The expression "Committed for trial" was defined by Goddard J thus:
"The expression 'committed for trial' used in relation to any person shall, unless the contrary intention appears, mean... committed to prison with the view of being tried before a judge...”8 The Criminal Procedure (Amendment) Act9 substituted preliminary inquiry with committal proceedings. One similarity between the two was
that an
accused appeared before a Magistrate in a subordinate court. Much of the procedure did not vary. However, the difference was that oral evidence was tendered in committal proceedings as was the case in preliminary inquiries as read in section 232 of the procedure. Under the amendment, section 232 (1) read:
7 8 9
R-v-Garden (1879)5 QB I at 10. R -vs- Gee (1939) 2 KB 442 at 446. Act No. 13 of1983. Page 170 of 382
"Except as provided by this section, oral evidence shall not be given in committal proceedings…"
Where the evidence was sufficient to commit an accused, the magistrate issud a cautionary address in which it was made clear that the committal proceedings were not the trial and that anything the accussed said before the court would be taken down and could be used at the trial.
C.
COMMITTAL PROCEEDINGS Committal proceedings was defined in the Act 10 as proceedings held by
a subordinate court for the purpose of committing an accused person for trial before the High Court. The committal proceedings were not the trial. The committal documents, or depositions prepared by the police (or prosecution) were submitted to the subordinate court, which in this case was restricted to a Senior Resident or Chief Magistrate's Court. Where the accused did not object to the documents, the Magistrate formed an opinion of whether there was sufficient opinon before committing the accused person for trial. Committal proceedings were
faster than the preceding
one of
preliminary inquiry where witnesses were required to make statements again. The relevant part of the Criminal Procedure Code which dealt with committal proceedings was part VIII. . The power of the subordinate court to hold committal proceedings was granted under section 230 and the court could hold committal proceedings where a person appeared before that court charged with an offence which was triable only by the High Court or to which section 220 applied. Section 220 of the Criminal Procedure Code provided that the subordinate
10
Section 2 of Criminal Procedure Code (Cap 75). Page 171 of 382
court could adjourn a case if it took cognizance that the offence was unsuitable for trial before such a subordinate court. In that case, the subordinate court would require the prosecution to comply with the procedure of committal proceedings as enacted in Part VIII of the Criminal Procedure Code. Briefly the procedure was that the prosecution furnished to the accused or his advocate one set of the committal documents and three sets to the court. This was
done not less than fourteen (14) days before the date fixed for the
committal proceedings.11 The documents contained among other things the information stating the charge, a list of witnesses which the prosecution intended to produce at the trial, a list of exhibits intended for production at the trial. Exhibits included
statements of the accused, medical reports, any
identification reports, photographs and sketch plans made among others. It clearly stipulated that if the accused intended to use an alibi defence, a prior warning was required. He must have stated that he intended to use the defence and gave details of it and of any witnesses he intended to call in support thereof12. In such proceedings, no oral evidence was allowed and no person was allowed to address the court without leave.13 The magistrate read the committal documents before the commencement of committal proceedings and framed a charge, read and explained it to the accused person while informing him that he need not reply. Section 232(4) provided for the mode of address to the accused by the magistrate in the following manner:
"This is not your trial. You will be tried later in another court before a judge and assessors, where witnesses will give evidence and you will be allowed to make a statement or give
11 12 13
Section 231(1) Criminal Procedure Code (Cap 75). Section 231(2) (d) Criminal Procedure Code (Cap 75). Section 232 Criminal Procedure Code (Cap 75). Page 172 of 382
evidence on oath and call your witnesses. If you wish, you may say something now, either on oath or not on oath. If you say anything on oath now, you may be questioned by the prosecution. If a promise or threat, was made to you earlier, it should not make you confess to an offence now. Anything you say will be written down and may be used at your trial."
The accused could alter or explain any statements or evidence he had recorded and the magistrate certified that the statements or evidence was made in his presence and also certified the accuracy of the record. The procedure culminated with the signing of the record by the accused. If the accused refused to sign, a note of refusal was made and the record used as if the accused person had signed it. 14. If there were insufficient grounds for committing the accused person for trial, the Magistrate discharged him.15 The prosecution was withdraw the charge and the magistrate
allowed to
discharged the accused person.
However, a discharge under the above two provisions was not autrefois acquit because section 233(3) stated that:
"A discharge under sub-section (1) or (2) shall not operate as a bar to subsequent proceedings on the same facts."
This rendered in another version simply meant that the discharge was not an absolute one and the prosecution could re-open the files by bringing in fresh charges, which could be like the previous ones. Once an accused had
14 15
been committed for trial, the committing
Section 232(7) Criminal Procedure Code (Cap 75). Section 232(1) Criminal Procedure Code(Cap 75). Page 173 of 382
magistrate administered bail or remanded the accused person until the trial.
16
However, because all offences triable exclusively by the High Court are nonbailable, the question of bail never arose. The Ugandan case of Zubairi17 focuses on the point of bail and committal proceedings. In this case, the respondents were committed to stand trial on charges of murder. They were in custody for over 365 days and made an application under the Magistrates Court Act section 74(a) thereof for bail. [Provisions of Magistrates Court Act of Uganda distinguished from the law relating to bail on a murder charge in Kenya]. The magistrate held that the maximum period of remand related to remand in custody while police were investigating and it did not apply after the preliminary inquiry had been held and the respondents had been committed to trial. The decision was referred to the High Court. Bail was granted to both respondents. On appeal to the Court of Appeal it was held inter alia that;
(i)
when a Magistrate commits a person for trial he is required to remand or release on bail;
(ii)
a Magistrate who has committed for trial is 'functus officio' and cannot entertain an application for bail;
(iii)
the accused has a right to apply for bail to the High Court;
(iv)
the proceedings in the High Court were in substance an application for bail; and
(v)
no appeal lies from the High Court's decision to grant bail.
The appeal was thereby dismissed and bail allowed. In some instances, statements of persons dangerously ill and which are relevant to the trial may be taken by the Magistrate who shall certify the accuracy of the record. He shall further make a note giving the reasons for his taking it. He should also state the 16 17
Court,Section 234. Criminal Procedure Code (Cap 75). Uganda -vs- Zubairi and Another (1973) EA 470. Page 174 of 382
date when it was taken. This was preserved for the trial.18 If the statement related to the offence for which the accused was under a charge or committed for trial, reasonable notice was to be given of the intention to take it and if the accused person was in custody, he could request to be brought to the place where the statement was to be taken.19 Such a statement was then transmitted to the Registrar of the High Court and a copy thereof be transmitted to the Attorney-General. Such statements could have been used in evidence during the trial. 20.
D.
A CRITIQUE OF PRELIMINARY INQUIRY The legal basis of the law and development of the Criminal Procedure in
Kenya can be traced to the colonial era when the first courts were set up by the 1897 East African Order-in-Council, which created Native Courtss. It was with the introduction of these native courts that the English system was incorporated in Kenya. It is this experience therefore, that led to the 'Old Law' of England on preliminary examination being accepted in its entirety in Kenya. The functions of the preliminary inquiry were threefold: First was the test of sufficiency of evidence; Secondly the propriety of the proceeding being passed on even where the evidence was sufficient from the prosecution to the Magistrate. Finally, the inquiry allowed the defendant limited discovery of the case against him and preservation of the testimony which might otherwise be unavoidable at the trial. Under section 23121 the inquiry was to be carried out by any 'magistrate empowered to hold a subordinate court for first, second or third class.’ To put a person accused of and charged with a capital offence in the hands of a third class Magistrate seems unreasonable and the Magistrate to try the accused 18 19 20 21
Section 246 Criminal Procedure Code (Cap 75). Section 247 Criminal Procedure Code (Cap 75). Section 249 Criminal Procedure C.ode (Cap 75). Criminal Procedure Code (cap.75) Page 175 of 382
should only be one deemed capable of handling a crime carrying a death penalty. The amendment catered for this and limited the Magistrate's powers. It conferred, the power to the higher status in the Chief-Magistrate or principal Magistrate. The time taken between the inquiry and trial was often so long that the memory of witnesses were hazy. These discrepancies saw the system get more and more unpopular. The malady of the "system's memory" was cured by the requirement in committal proceedings that not only would oral evidence be disallowed, but statements and evidence must be documented by the prosecution and the defence as well.
E. COMMITTAL PROCEEDINGS AND CONSTITUTIONAL RIGHTS One of the fundamental rights of an accused person is found in section 77 of the Constitution of Kenya which reads:
"... any person ... charged with a criminal offence shall be given adequate time and facilities for the preparation of his defence...22 shall be permitted to defend himself before the court in person or by a legal representative of his own choice...23"
The time within which committal documents were required was not adequate to prepare defence.
E. CONCLUSION Although the introduction of Committal Proceedings has served to expedite the process of trials particularly in murder cases, delays are still 22 23
Section 77 (c) Constitution (1998) 1992 Ed. Section 77 (d) Constitution (1998) 1992 Ed. Page 176 of 382
common. To give practical meaning to the changes such delays should be avoided by stipulating the time within which committal proceedings must be rendered after the decision to prefer charges has been taken.
CHAPTER ELEVEN TRIAL IN THE HIGH COURT1
A.
INTRODUCTION
The High Court of Kenya is established under
section 60 of the
Constitution. It has jurisdiction in civil and criminal matters over all persons , and over all causes in Kenya. It exercises general powers of supervision over subordinate courts and tribunals. The High Court is the primary court of first instance because it is able to try any case of any description. However, some cases suc as of murder and treason are exclusively triable by the High Court. While before the repeal of section 220 of the Criminal Procedure Code as read together with section 230(b) of the Code may have given the impression that there were other offences exclusively triable by the High Court, the true position however was that only murder and treason fall into the category of offences exclusively triable by the High Court. This view must respectfully be wrong. First, it derogated from the plain meaning of sections 220 and 230 of the Criminal Procedure Code. More importantly, it could not stand to reason in light of section 234 of the Criminal Procedure Code, which obligated
a
Magistrate upon committing a person for trial to the High Court, to either admit
1
Sections 220 and 230 of the Criminal Procedure Code were repealed by Amendment Act No. 5 of 2003. However, the trial procedure at the High Court is discussed as it was before repeal of provisions relating to committal of the accused persons for trial before the High Court. Page 177 of 382
him to bail or remand him in custody. It is submitted that if only murder and treason were contemplated, provision for bail were futile as the two are nonbailable offences. The caption must have been inserted (and reasserted through Act 13 of 1987) in contemplation of such other bailable offence which may however prove unsuitable for trial in a Magistrate's court. The High Court is presided over by the Chief Justice or by a Puisne Judge. There are various High Court Judges who stay and work in Nairobi. There are also Resident Judges in nearly all provinces in Kenya. In some provinces like Nyanza, for instance, there is a resident Judge in Kisumu and another in Kisii town.
B. COMMITTAL PROCEEDINGS AND THE COMMITTAL BUNDLE2 If having read the committal documents a magistrate formed the view that there was insufficient evidence for committing an accused person for trial, the accused was discharged under section 233 of the Criminal Procedure Code. If magistrate found sufficient evidence, a charged was framed and read to the accused who needed not reply to the read charge. (section 232(2)). In framing the charge, the Magistrate observed the rules of framing a charge borne by practice and judicial authority3. The charge must have been properly framed as in Statement of Offence and Particulars (section 137). It specified the statute and section under which it was brought. The High Court was not entitled to speculate on the probable intention of framers of the charge (Kenera Opidi v R)4, but satisfied itself that the charge was correct in all respects5. The charge sheet contained the the full names and
2
Provisions relating to committal proceedings were repealed via Criminal Law (Amendment) Act No. 5 of 2003. Nevertheless, these provisions are discussed for historical references. 3 See Douglas Brown Criminal Procedure in Uganda and Kenya list Ed sweet and Makwell Wist PC) 46 4 (1965) E.A.614 5 Avone-v-R (1969) E.A.I 29. Page 178 of 382
address of the accused person. Dates in the charge sheet were stated in such a manner to precisely tally with the day on which the wrongful act was committed. 6. Where the date of event was uncertain, the Magistrate gave an approximation of the dates7. The place where the alleged offence was committed was also stated in the charge sheet. In Loibon's case8, the charge gave no particulars of the place of the offence except to state that it occurred in the Northern Province of Tanganyika. It was held that a reference to what may be a vast territory can hardly be said to indicate to an accused person, with reasonable clarity, the place at which it is alleged he committed the offence. Provision for joinder of counts is made under section 135(1) of the Criminal Procedure Code. It provides that:
"Any offences, whether felonies or misdeameanours, may be charged together in the same charge or information if the offences charged are founded on the same facts or form or are part of a serious offences of the same or similar character".
However, the Court of Appeal has long held that it is undesirable to charge an accused person on more than one charge of murder 9. That rule has remained undisturbed and has been followed in subsequent cases. The same court has also laid down that a charge of murder ought not be laid with a count of another offence10. In the case of Yowana Sebuzkira11, the Court of Appeal upheld its ruling that there should be no departure from the established rule of
6 7 8 9 10 11
Semi Longa -v- R (1964) EA 512 Lujo -v- R (1946) 13 E.A.C.A, 156. (1949)16 EACA86. Mongolia -v- R (1934) 1 EACA 152. Valezi Kashiza -v- R (1954)21 EACA 389. (1965)EA684. Page 179 of 382
practice that no other count should be joined to a count of murder or manslaughter, except where the additional count is based on precisely the same facts as the more serious charge. As to whether the same rule applies to treason, which is also a capital offence exclusively triable by the High Court, is a matter of conjecture. In practice, however, the treason charges brought in Kenya have not contravened this rule. It is submitted that this is reasonable as the accused person should be afforded ample time and concentration to defend himself against a capital offence. Similarly, where the second count has different procedural requirements, it would greatly constrain the court in achieving a speedy trial. A charge must not be duplex. Duplicity is a fundamental mistake and not normally curable by section 382 of Criminal Procedure Code. In the case of Sowedi Kauta12, it was held that a charge alleging the murder of two persons in one count is bad in law. There should have been two counts. In Mongolia13, the accused was convicted of the murder of six persons. The charge of murdering the six was laid in one single count. It was held that he should have been charged in six separate counts. The test for duplicity was laid down by the Kenya Supreme Court in Laban Koti14 that;
"In deciding whether there is duplicity in a charge, the test is whether a failure of justice occurred or the accused has been prejudiced".
The charge framed by the Magistrate was in the same terms as the information15 or an amendment thereof. Section 253 of the Criminal Procedure
12 13 14 15
(1933) 13 K.L.R. 105. Mongela, (supra) note 7. (1962)EA439. Elsewhere, e.g. Uganda, the word 'indictment' is used with reference to trials before the High Court.. In Kenya, the word 'information' is used. Page 180 of 382
Code required that information drawn up for the purposes of committal proceedings be in the name of and signed by or on behalf of the AttorneyGeneral. The interpretation of this requirement was not easy especially when read in the light of section 88(1-3) of the same Criminal Procedure Code. Section 88gives provision for instituting private prosecutions in magistrate courts. This has known judicial recognition in the case of Kimani and Maina v Nathan Kahara16. Unlike in the magistrates court, one cannot institute a private prosecution in the High Court in his name as he must (under section 253) do so in the name of Attorney-General. Moreover, section 88 appears to contemplate only such a situation in a Magistrates court. This position must be wrong. While it may be understandable in an allegation of treason for it is the state to decide who undermines it, it is absolutely unfair to the murdered victim and his/her family if the police and the Attorney-General's office neglect to take action. It is such police inertia that private prosecutions try to curb. It should be allowable that such inertia is arrested even in the High Court when for political or other reasons, the Government declines to prosecute.17. The AttorneyGeneral may, in certain cases, specifically appoint certain persons to prosecute certain cases under section 85(2). This was recognised in the case of Gamiliere Mubito18.
C. ARRAIGNMENT AND THE PLEA The process of arraignment is dealt with by section 274 to 283 of the Criminal Procedure Code. The term arraignment is used only in trials before
16
17
18
H.C.Criminal (Misc) App. No. 11 of 1988. See also Gouriet Vs Union of Post Office Workers (1978) A.C. 435. Recall for instance the intriguing murders of J. M. Kariuki, Argwings Kodhek, Tom Mboya, Julie Ward, Robert Ouko et al. Natural justice would demand that some prosecution ensue, best of all private, with cooperation from the investigation branches of the Government. (1961)EA244. Page 181 of 382
the High Court. As one writer opines19, the Court must be sure that the accused has attended on the day appointed for trial in the High Court. If the accused is on bail bond, he appears on the date indicated therein. If he is in custody, it is the State's duty to ensure his attendance. The accused person to be tried by the High Court shall be placed at the bar unfettered. The charge is read over to him by the Registrar or other officer of the Court. The charge is explained in straightforward language. The accused must understand the charge. He is then required to plead (section 274 Criminal Procedure Code). But before pleading, various issues could arise. The accused may decline to plead on the ground that a copy of the information to which he is entitled, has not been served on him. He may also object to the case proceeding without being furnished with statements made by witnesses previously in an inquiry or inquest, if such documents are in the possession of the AttorneyGeneral20. Should the court sustain such objection, proof of service may be required. For the latter, if the prosecution objects, a ruling is first made. The taking of the plea may then be adjourned pending proof of service. Otherwise the court will order that the defence be supplied with such documents and may for that purpose adjourn the proceedings.
Since Act No. 5 of 2003 repealed provisions relating to the committal proceedings including all the provisions which made it mandatory for the prosecution to furnish the court and the accused with committal documents, there has not been standard procedure on whether the prosecution should disclose the list of witnesses, their statements and other exhibits and documents which it wish to rely on. However, the issue was dealt with in the case of R –vs-
19 20
Douglas Brown, Supra note 1. Ruling of justice Fidhahussein Abdullah upon an application by Mr. Bowry for accused that ahe be supplied with statements of witnesses taken at the Ouko COmmissin of Inquiry. The case in issue was R –vs- Jonah Orao Anguka. H. C. Criminal Case No. 41 of 1992. Page 182 of 382
Kamlesh Pattni.21 The accused in that case was arrested after the repeal of provisions relating to committalproceedings including provisions requiring the prosecution to supply committal documents to the accused. The prosecution argued in support of non- disclosure of the list of witnesses, their statements and other exhibits and documents which it intended to rely on and only to supply those which in prosecution’s absolute discretion were deemed necessary. The court stated that the decision whether or not to withhold statements of witnesses cannot be left to the prosecution and that it must be a judicial decision to be made after a just cause or peculiar circumstances of the case are demonstrated to the court. The court argued that: “pre-trial disclosure was well known and approved in this country under Emergency Regulations and is not a new idea. Kariuki Kamau & Others –vsReginah (1954) 21 EACA 203 is a case on point where this practice was approved by the Court of Appeal for East Africa. It was a misconception for the prosecution to submit that since Part VIII of the Criminal Procedure Code and all the provisions there under had been deleted, then the prosecution was not obliged to supply witness statements and exhibits to the defense.” The court went on to state that the prosecution’s duty to disclose all relevant information is safeguarded under section 77 of the Constitution which provides that an accused person should be afforded a fair hearing within a reasonable time. The court argued that ‘fair trial’ constitutes in it the right to pre- trial disclosure of material statements and exhibits. It went on to declare that that is the only way an accused person would be able to prepare for the case and to have an informed representation. The court declared that “anything less would mean that the court is giving approval to trials by ambush and in criminal litigation, it is against the rules of natural justice and the rule of law to adopt a 21
Republic -vs- Kamlesh Mansuklal Damji Pattni alias Paul Pattni (2003) Criminal Case No. 229 of 2003 in the Criminal Division of the High Court Nairobi. Page 183 of 382
practice under which an accused person will be ambushed.” Finally, the court expressed the view that the witness statements, exhibits and documents obtained by the prosecution after investigations are not the property of the prosecution but the property of the public to ensure that justice is done.
It is submitted that this is the correct procedure to adopt in the High Court in the wake of repeal of provisions relating to committal proceedings.
As under section 275(1), every objection to an information for a formal defect on the face thereof shall be taken immediately after the information has been read over to the accused person and not later. Objections relating to joinder (of offences and/or persons), framing of charge, among others issues must comply with this section. If the objection is tenable, the information may be amended. Such amendment allowable under section 275(2) and (3) must be complied with, that is, a note of the order of amendment shall be endorsed on the information. The section does not lay down any point in the trial beyond which it is impossible to amend an information. The Judge has discretion to amend it before a trial or at any stage of the trial. Amendments in subordinate courts are regulated by section 214 of the Criminal Procedure Code, which is in effect similar to section 275(2). Principally, any amendment can only be effected, if it does not occasion injustice to the accused person. An amendment that would entail a major reconstruction of the charge is not allowable, especially if made at the conclusion of the evidence22. An amendment of a charge other than correction, of a mere matter of form should hardly be allowed after the accused has begun to give evidence23.
22 23
Mushraf Akhtar v R (1964) E.A 89. Main (1954)21 EACA 252. Page 184 of 382
The last sentence of section 275(2) reads thus:
"... and any amendments shall be made upon such terms as the court shall deem Just”. In Akatendasama24, it was postulated that amendment of a clarge should show the amendments in red. Perhaps it is good to adopt this in the High Court. If an information does not state and cannot even after amendment be made to state an offence for which the accused has had notice, it shall be quashed either on a motion, made before the accused, pleads (as above) or on a motion in arrest of judgment (section 276(1)). The motion shall be written and delivered to the Registrar or other officer of the court (section 276(2)).
D. TAKING THE PLEA When taking the plea, the Judge must record the answer given by the accused as nearly as possible in the accused person's own words. It is essential not only that every constituent of the charge is explained to the accused but that he should be required to admit or deny every such constituent.25 Should the accused admit the charge certain safeguards may still prohibit a plea of guilty from being recorded and if the plea is unequivocal, the same may be entered. In the case of Mutua26, it was said that no man is to be convicted on a plea which, is ambiguous. If there is any ambiguity it is to be taken as a plea of not guilty. In Tomasi Tofu27, the appellant had speared, the deceased to death. When arraigned for murder, the appellant said. "I speared him to death as he had killed my son the same day". The trial judge, then heard counsel, for the prosecution 24 25 26 27
(19b6)23 EACA487. Hando (1951)18 EACA 307, (1951)18 EACA 311. (19!:>9)EA625. Page 185 of 382
and thereafter convicted the appellant for murder and sentenced him to death. On appeal, it was held, inter alia, that the appellants plea was not an unequivocal plea of guilty of murder and might well have been a plea of killing upon provocation and this vitiated the conviction. A new trial was ordered. When asked to plead, the accused may, or may fail to, adopt any of the various approaches. Assuming he understands the charge and no objection has been raised, or if it has been overruled, or settled, he may: 1. Plead guilty 2. Plead not guilty 3. Say nothing - this is entered as a plea of not guilty or the court may try if the accused is of sound or unsound mind. 4. Assert that the court has no jurisdiction, over him. 5. Demurrer; give a legal objection., that is, admit the facts but say they do not amount to an offence known to law. 6. Plead Autrefois Convict. 7. Plead Autrefois Acquit 8. Plead, (having been previously) pardon(ed).
(a) Plea of Guilty Section 281 states simply that if the accused pleads guilty, the plea shall be recorded and he may be convicted thereon. But this is too simplistic. Before convicting on a plea of guilty, it is essential not only that every constituent of the charge should be explained to the accused, but that he be required to admit or deny every such constituent. Even this procedure may not be sufficient in certain instances. The more serious the charge, the greater the caution exercised by the High Court in accepting a plea of guilty. Since the High Court originally tries capital cases (except cases referred to it under section 230(b)), a plea of Page 186 of 382
guilty will hardly ever be recorded. The judicial attitude is illustrated by the case of Mangwera28. The Court of Appeal here held that while there is no statutory provision invalidating a conviction on a capital charge of an accused person's own plea where it does amount to an unequivocal admission of guilt, it is generally inadvisable particularly where the accused does not speak English for the trial judge to accept a plea of guilty on such a capital charge. Again in Chacha29, the Court of Appeal said there was no general rule that a plea of guilty should not be accepted, in a capital case but precautions are necessary. The words which an accused used in plea should be recorded in a form which will satisfy an appeal court that the accused fully understood the charge and pleaded guilty to every element of it unequivocally.30 The word 'guilty' should not be used in recording a plea unless it is actually used by the accused in which case the record should show that the accused spoke in English.31 A plea of guilty when recorded, does not rank as a conviction until the accused is sentenced32. If there are various counts, and he pleads guilty to one or more of them, the proper course for a judge is to allow the count to which he has pleaded guilty to remain on the file and not proceed to sentence33.
b) Plea of Not Guilty By such a plea, an accused, person is deemed to have put himself upon the court for trial (section 278). The trial would then proceed in accordance with S.282 and as discussed elsewhere.
c) Option of Silence
28 29 30 31 32 33
(1952) 18 EACA 150. (1953)2.0 E::ACA 339. Yonasani Egalu (1942)0 EACA 65 Waithaka (1963) EA38. Cole (1965)49 Cr. App R.199. Ibid. Page 187 of 382
This is dealt with under section 280. Under this provision, there are two options, namely; (i)
If an accused stands mute of malice, a plea of 'not guilty' shall, be entered and the trial proceeds as under section 282 or
(ii)
the court may determine whether an accused is of sound mind or otherwise. If he is of sound mind, a plea of 'not guilty' is entered. If he is not, the trial will be postponed and the accused will be kept in safe custody at the pleasure of the President who may order that he/she be confined in a lunatic asylum, or other suitable place.
A detailed account of the procedure of what happens when an accused person, stands mute in court is discussed later34.
d) Objection to Jurisdiction An accused, person may claim want of jurisdiction on various grounds.
(i)
Territorial jurisdiction; Concerns offences committed outside Kenya. It also involves offences committed in the international waters.
(ii)
Time limit; while there is no time limit for a criminal prosecution, certain statutes impose limits e.g. Sedition case to commence within 6 months in Kenya (section 58 of the Penal Code)35.
(iii) Diplomatic Immunity; pursuant to the Privileges and Immunities Act (Cap 179) diplomats are immunised from prosecution unless the accrediting country or body waives the immunity. (iv)
Insane Persons; section 12 of the Penal Code provides that a person is not criminally responsible if he was insane at the time of committing the
34 35
See Chapter Twelve Under the statute law (Repeals and Miscellanous Amendments) Act No 10 1997 which came into force on the 7th day of November, 1997 the offence of sedition has now been outlawed. Page 188 of 382
offence. This also applies when he is insane at the time of trial. (v)
Children under the age of 8 years are not to be held liable for alleged offences (section 14(1) of the Penal Code). Those under twelve years are not criminally responsible for any act or omission unless it is proved that at the time of doing the act or making the omission he had capacity to know that he ought not to do the act or make the omission. A male under the age of twelve years is presumed to be incapable of having carnal knowledge.
(vi)
Judges and Magistrates being Judicial officers are exempt from Criminal proceedings in respect of exercise of their judicial powers (section 15 of Penal Code, section 7 of Magistrates Courts Act Cap 10 and section 46 of the Judicature Act Cap 8).
(vii) Presidential Immunity; the President is not above the law as often bandied. All he enjoys is immunity as granted under section 14 of the Constitution. Indeed, even if such criminal proceedings were brought against him while he still holds the office, he has the power of pardon; a prerogative which he and he alone can exercise, and nothing should, stop him from pardoning himself; a case of indivisible authority.
(e) Demurrer Demurrer is an objection to the form or substance of a charge, as not amounting to an offence known to law. It is a rare plea which even in England as Lord Parker C J said in Deputy Chairman of Inner London Quarter Sessions36 would soon become moribund. In Kenya, no recorded case of this plea is known to the writer. Indeed, and not surprisingly, it has not been provided, for expressly in the Kenyan Criminal Procedure Code.
36
(1970)2 WLR 95. Page 189 of 382
(f) Autrefois Convict This principle is sanctioned and recognised as a plea by section 279(a) of the Criminal Procedure Code. If the accused gives this plea, but denied by the prosecution, the court shall try the veracity of the plea. If the facts alleged by the accused do not prove the plea, the accused shall be required to plead to the information. The principle was summarized in Daudji37, that on a plea of autrefois acquit or convict the test is not whether the facts relied on are the same as the two trials, but whether the acquittal on the previous charge necessarily involves an acquittal or conviction on the subsequent charge. The question is whether the accused has been convicted of an offence which is the same as that with which he is now charged38.
(g) Autrefois Acquit It also furthers the principle of double jeopardy. It is a plea recognised by section 229(a) Criminal Procedure Code. The principle is that if a man has been tried and found not guilty of an offence by a court of competent jurisdiction the acquittal is a bar to a second charge for the same offence. Where the first trial has been declared, a nullity and conviction and sentence set aside, the proceedings are deemed, to have been a non-event and a plea of autrefois acquit at the second trial cannot stand39. A discharge of an accused under section 87 of the Criminal Procedure Code is not an acquittal and a plea of 'autrefois acquit' cannot be sustained.
However, if such application to withdraw under section 87 is made after the accused has been called upon to give his defence, the Magistrate shall acquit the accused under the said section and this would now operate as a bar.
37 38 39
(1948) 15 EACA89. Salim Bin Karama (1 951)18 EACA 304. Loizeau (1956)23 EACA 566. Page 190 of 382
(h)
Pardon
The President wields the prerogative of mercy and may grant a free or conditional pardon to a person convicted, of an offence, under section 27 of the Constitution. Section 279(b) recognises the plea and. is a bar to further proceedings.
E.
PROCEDURE IF ACCUSED STANDS MUTE; INSANE, MUTE OF
MALICE DEAF AND/OR DUMB Section 280 of Criminal Procedure Code discusses the- basic procedure to follow when an accused refuses to plead, by reason of infirmity, unsoundness of mind or malice. But the section does not give the elaborate procedure. Such procedure was given in the case of Lelawan Leseroi40, a Supreme Court of Kenya decision. In this case, the record showed that when the appellant first appeared in court to answer charges of stealing cattle, the Magistrate recorded that he said it is not true. At the trial, a week later, the Magistrate recorded that the appellant was unable to hear or speak though he was said to be quite fluent when questioned at the police station. Thereafter, prosecution witnesses were called, of whom the appellant though given the opportunity did not crossexamine. Three of them said the appellant was able to speak. The chief of the area however said that the appellant was unable, to speak, and that they spoke to him by hand signs and he replied in the same way. The prosecution closed its case and the accused was given opportunity to conduct his defence but was not asked any questions. Allowing the Appeal, Sir John Ainley C.J. laid down an elaborate account of the procedure that ought to have been adopted, as follows:
40
(1964)EA 111 Supreme Court of Kenya decision; Sir John Ainley, C..I & Wicks). Page 191 of 382
"If an accused stands before the court dumb, and apparently without comprehension..., the court before proceeding' with the trial should consider whether there is reason to believe that the accused is of unsound mind. There are, of course, practical difficulties in deciding whether the accused is playing the fool or not. It may be quite obvious that he is playing the fool. If that is so the court is entitled, having entered a plea of 'not guilty', to proceed with the trial. In most cases, however, it will be wise to have the accused, examined by a doctor even if this entails considerable delay. A doctor, without much difficulty, will be able to ascertain whether the accused is deaf or not and though it will be more difficult, whether the accused, is rational. It may of course be possible, without medical evidence to1 say that the accused is deaf, but is of perfectly sound mind, in which case, as in a case where a doctor has said that the accused, is deaf but sane, inquiry will turn on whether the accused can be made to understand the proceedings. In such cases some such witness as the chief who was called in the present case, should be examined at the outset. If on hearing a witness of that kind the court finds that intelligence can be conveyed to, and received from, the accused by means of signs there is no reason, if the communication is adequate, why the accused should not be tried through the medium of sign language. It will be a question of degree in each case. The question in each case may be stated in this way taking into account the nature of the charge and the evidence likely to be adduced, are the means of communication available adequate to ensure that the accused will have a full and proper understanding of the allegation made against him and of what Ac prosecution witnesses are saying about him? Further, can the rights of the accused be adequately explained to him and can he avail himself of those rights? If in these respects the means of communication with the accused are adequate, the trial may proceed in the normal way the person chosen to communicate by signs with the accused being sworn in much the same way as an interpreter is sworn. Page 192 of 382
If however communication adequate for the purpose of the case cannot be established the court will make a finding under section 167 (of the Criminal Procedure Code) to the effect that the accused, though not insane, cannot be made to understand the proceeding's. The trial will then proceed and the provisions of section 167(1) (a) will be followed.
What emerges from the above is that the Trial Court shall consider the following: (i)
The question of the accuser’s sanity.
(ii)
If accused is considered sane, the question whether he is in fact deaf or dumb or both.
(iii)
If he is deaf or dumb or both, the question, whether he can by sign or otherwise be made to adequately understand the proceedings must next be considered, and provision, for a suitable 'interpreter’ must be made.
(iv)
If he is sane, section 162 must be followed.
(v)
If he, though, not insane, cannot be made to understand the proceedings, section 167 must be followed; that is, the High Court shall try the accused and if found not guilty, shall acquit him. If the court is, on the other hand, satisfied that the evidence would justify a conviction, shall order that the accused person be detained during the pleasure of the President.
(vi)
If he can, in one way or another, be made to understand the proceedings, with the aid of a 'sign interpreter' if necessary, such will be provided in the normal way.
For clarity the attitude of the Court of Appeal regarding a finding of a judge in any of the above-situations vis-à-vis an accused's right to appeal against it is
Page 193 of 382
germane. In the case of Livingston Amana41, the Kenyan Court of Appeal (Hancox, Nyarangi & Kwach J.A) dealt with this issue. In this case, the High Court Judge at Kakamega had found the accused guilty but insane. The appellant appealed against this finding. The State Counsel argued that under section 379 of the Criminal Procedure Code there is no right of Appeal against such a finding. Although the court dismissed the appeal holding that evidence showed the accused, was properly convicted and was insane, it dismissed, the Counsel's objection. They said.;
"In the experience this court has always entertained such appeals as key are orders to the prejudice of an appellant and on the material, on record, we dismiss the present one".
The court then complied with section 166(6); made a special report to the Minister for transmission to the President that he upon reading the same, may recommend that he be discharged or otherwise- dealt with.
F. PROCEDURE IF ACCUSED PLEADS GUILTY Through Criminal Law (Amendment) Act No. 5 of 2003 the procedure of admission
of guilt was amended. Section 25 (a) of the
Evidence Act Cap 80 states that a confession or admission of a fact tending to the proof of guilt made by an accused person is not admissible and shall not be proved as against such person unless it is made in court.
The court's duty in cases of Plea of guilty in murder was dealt with in the case of Tomasi Mufumu , the court said at Page 627 that: 41
Criminal Appeal No. 125/1989. Page 194 of 382
"It remains to say that it is very desirable that a trial judge, on being offered a plea which he construes as a plea of guilty in a murder charge, should not only satisfy himself that the plea is an unequivocal plea, but should satisfy himself also and on record that the accused understands the elements which constitute the offence of murder (R V Yonasani Egalu [ante]) and understand that the penalty is death. This should be done (and recorded) notwithstanding that the accused may be represented by an advocate."
In such a plea of guilt, the prosecutor usually outlines the facts which evidence is customarily given unsworn, unless the accused challenges its truth in which case it is given on oath42.
G. THE HEARING AND CONDUCT OF THE TRIAL At commencement of the trial, and subsequently, the judge must ensure that an accused is present in court (section 194). No evidence can be taken in the absence of an accused person43, section 99 of the Criminal Procedure Code gives the Magistrate power to dispense with the personal attendance of the accused. No similar provision exists in respect of the High Court and, ex facie, a Judge has no such power. A Court (High Court included) has power to proceed, with a trial where the accused fails to appear after an adjournment. But this is hardly exercisable in the High Court, firstly, because it does not apply in felonies44, and secondly, because cases exclusively triable by the High Court are only serious non-bailable offences where non-appearance does not therefore arise unless the court would want to proceed after the accused has escaped from
42 43 44
R vs- Grimsby Recorder (1951 )2 All E.R. 889, Alexius Afumu & Another V R (1953)26 KI..R 87, Narothanda Vithlani V R (1957) EA 343. Page 195 of 382
custody. Every accused person is entitled to be defended by an advocate of his choice (section 77(2)(d) of the Constitution
and section 193 of Criminal
Procedure Code). It is the accused person's responsibility to ensure that his advocate is present. But before commencement of the trial, the Judge should ensure that the accused has had reasonable opportunity to seek the services of a lawyer. The judge may allow an adjournment (which power he has as under section 283 of Criminal Procedure Code) to give an accused time to engage an advocate of his choice. If after such reasonable time the accused has not done so, the trial may proceed. Short adjournments are also granted in the course of the trial at the instance of the prosecution, the defence, the assessors or the Judge. Section 283(2) allows a Judge to admit an accused to bail during a remand occasioned by an adjournment caused by absence of witnesses or other reasonable cause. Every accused person committed, for trial in the High Court of Kenya must be tried with the aid of assessors (section 262), and in its criminal jurisdiction a High Court trial without assessors is a nullity45.
H.
CONDUCT OF THE CASE AND ORDER OF HEARING Assuming that a plea of not guilty is entered, the prosecution opens. The
Prosecutor usually gives a brief outline of the prosecution's case as indicated in the committal documents. He has a right of address granted under section 300 of the Criminal Procedure Code. The prosecution then calls the witnesses for the prosecution. The witnesses are examined and numbered as PW1, PW2. They give evidence on oath. The Judge should inform the accused that he will be given time to cross-examine, especially if he is not represented by an
45
R V Obau 15 KLR 107 and section 298 of Criminal Procedure Code (Cap 75) Page 196 of 382
advocate. He should also tell him that he will have the right at a later stage to give evidence on his own behalf and call witnesses. That is, it must be explained to him how the trial will be conducted. The prosecution witnesses shall be subject to cross-examination by the accused. Opportunity is sufficient, the accused need not actually cross-examine them. The prosecution may reexamine only on matters raised in cross-examination. In accordance with section 302, the prosecution shall not, without leave of court reasons for which shall be recorded, adduce evidence on a statement which was not presented at the committal proceedings, unless the accused or his advocate has received reasonable notice in writing of such intention. As to what notice is reasonable is a question of fact for the judge to decide. In such cases, a copy of a statement relating to the additional evidence shall be annexed to the. notice. Any statement made by an accused person at the committal proceedings may be adduced as evidence without further proof thereof. When the prosecuting counsel has called all his witnesses and adduced all other evidence, he informs court that his case is closed. After close of prosecutions' case, if the judge, considers that there is no sufficient evidence that the accused committed the offence, and after hearing any argument preferred by the prosecution of defence, he shall record a finding of 'not guilty' (section 306(1)). At any stage in the course of the prosecution's case, a question of law may arise. If this comes up, a trial within a trial may have to be conducted. This is an exception to the rule that assessors have to sit throughout the trial and hear all evidence. When there is an argument as to admissibility of some evidence, the practice is that the assessors are asked to retire. It is illustrated in the case of R v Mathenge s/o Muriemo46. The proper procedure stated in the case of Kinyori s/o Kiraditu v Regina47, that: If the defence is aware before the commencement of the trial that such an issue will arise, the prosecution should 46 47
(1938) 5 EACA 154. (1956) EACA 480 from 482. Page 197 of 382
then be informed of that fact. The latter will therefore, refrain from referring in the presence of the assessors to the statement concerned or even to the allegation that any such statement was made, unless and until it has been ruled admissible. When the stage is reached at which the issue must be tried the defence should mention, to the court that a point of law arises and submit that the assessors be asked to retire. It is important that, that should be done before any witness is allowed to testify in any respect which might suggest to the assessors that the accused had made an extra-judicial statement. For example, an interpreter who acted as such at the alleged making of the statement should not enter the witness box until after the assessors have retired. The assessors having left the court, the state, upon whom the burden rests of proving the statement to be admissible, will call its witnesses, followed, by any evidence or statement from the dock which the defence elects to tender or make. The Judge having then delivered his ruling, the assessors will return. If the statement has been held to be admissible, the state witnesses to whom it was made will then produce it and put it in in writing, or will testify as to what was said if it was oral. The defence will be entitled, and the Judge should make sure that the defence is aware of its right, again to cross-examine that state witness as to circumstances in which the statement was made and to have recalled for similar cross-examination the interpreter and other state witnesses who have given evidence on the issue in the absence of the assessors. Both in the absence and again in the presence of the assessors, the normal right to re-examine will arise out of any such cross-examination. When the time comes for the defence to present its case on the general issue, if the accused elects either to testify or to make a statement from the dock thereon, he will be entitled also to speak again on any questionable circumstances which he alleges attended the making of his extra-judicial statement and to affirm or reaffirm any repudiator retraction upon which he seeks to rely. Indeed, if the accused desires to be heard in his defence either in Page 198 of 382
the witness box or from the dock he will not be obliged to testify in chief or to speak, as the case may be, to anything more than the matters touching on the issue of admissibility; but, once he elects to testify, however much he then restricts his evidence-in-chief he will he liable for cross-examination not only to credit, but also at large upon everything in issue at the trial. The accused will also be entitled to recall and examine any witness of his who spoke to the issue in the assessors' absence, and to examine any other defence witnesses thereon.. The broad principle underlying that procedure is that the accused is entitled to present, not merely to the Judge but also to the assessors, the whole of his case relating to the alleged extra-judicial statement; for the Judges' ruling that it is admissible in evidence is not the end of the matter; it still assesses the value or weight of any admission or confession thereby disclosed and also the accused is still at liberty to try to persuade them that he has good reason to retract or repudiate his statement.
After the Prosecution closes its case the defence will. begin. The judge will inform the accused of his right to address court, whether personally or by his advocate. He shall, be informed of his right to give evidence on his own behalf, or to make an unsworn statement, and to call witnesses in his defence. The Judge will require the defence to state whether it intends to call any witnesses as to fact other than the accused person himself; and so informed, the Judge shall record the fact (section 306(2)). If the accused opts not to give evidence or make an unsworn statement, or to adduce evidence, the prosecution may sum up the case against the accused person. Should he opt to give evidence or make an unsworn statement, the court shall call upon him to enter upon his defence (section 306(3)). The accused or his advocate may then address the court. It is wrong for an advocate to inform court that the refusal of an accused
Page 199 of 382
to adopt a given option is against, his advice48. The accused may now give evidence on his own behalf. He may call his witnesses in the order in which he wishes, who are numbered PWI, PW2 etc. He or his advocate may examine the witnesses. The prosecution may cross-examine them. At the trial no alibi evidence can be adduced unless details thereof, and the names and addresses of any witnesses in support,thereof, were provided or given in writing to the court and the prosecution. It may only be allowed with leave of court reasons for which, shall be recorded (section 307(2)). Under section 308 the accused person shall be allowed to examine any witness not previously summoned to give evidence at the trial, if that witness is in attendance. Under section 309, whenever evidence has been given by the defence introducing new matter which the prosecution could not foresee, the prosecution may be allowed to call evidence in rebuttal. In Popat V R49, evidence in rebuttal was led by the prosecution after the accused had given evidence, but before all the defence witnesses had testified. The Court of Appeal held that,
"there may well be cases where it is in the interests of justice that some prosecution evidence should be led in rebuttal at the earliest opportunity. In any event, it was a matter of discretion for the trial court".
At the close of the defence, the parties may address the court. The respective rights of address by the prosecution and the defence may be confusing, and needs special emphasis. The issue was elucidated, by a strong bench of the East African Court of Appeal in Rex v Wamasuya s/o Bola50.
48 49 50
Oman V R (1956)23 EACA 580. (1950) 17 EACA 116 (1944) 11 EACA 56. Page 200 of 382
(Coram: Sheridan. Joseph (CJ-K), Norman Whitley (CJ-U) & Henry Webb (CJU). In the said case the appellant elected to give evidence but called no witnesses. After that, Crown Counsel claimed the right to address court. The court held that Crown Counsel was entitled, to sum up the case after the accused had given evidence and that then the advocate for the defence was entitled to address the court. It said that the effect of section 306(1) is that if, after hearing the evidence for the prosecution, the court considers that there is no evidence that the accused committed the offence, it shall hear the advocate for the prosecution then the advocate for defence, and shall then (if still of the same opinion) record a finding of not guilty. Section 306(2) deals with a situation where the court considers that prosecution evidence does disclose a case that calls for an answer, it shall inform the accused of his right:
(a) to give evidence (b) to make an unsworn statement (c) to call witnesses
and shall ask him if it is intended to exercise any of such rights. Section 306(3) states in part that if the accused person says that he intends to give evidence or make an unsworn statement or to adduce evidence, the court shall call upon him to enter upon his defence. Section 307(1) shows what is meant by the accused "entering upon his defence"; it says
"The accused person or his advocate may then open his case stating the facts or law on which he intends to rely and making such comments as he thinks necessary on the evidence for the prosecution. The accused person may then give evidence on his own behalf or make an unsworn statement and be or his advocate may examine his witnesses (if any), and after their Page 201 of 382
cross-examination and re-examination (if any) may sum up the case".
Section 306(2) is not, perhaps, quite so clear as it might be: its obscurity is, we think, due to the fact that it seeks to provide compendiously for two, or possibly three, different sets of circumstances. The first arises where, for example, the accused is content to accept the case for the prosecution as it now stands, but proposes to submit either that the facts proved do not establish the offence charged, or that the evidence for the prosecution has been shown by cross-examination to be unreliable, or that it is insufficient, say for lack of corroboration in a case in which the law requires corroboration. In that event, he will elect neither to give nor to call evidence, nor make a statement setting out his version of the facts. In those circumstances, the evidence being ex hypothesi finished, the sub-section says that the prosecutor must now sum up the case for the prosecution and then the accused, or his advocate, will enter upon which he intends to rely and making such comments as he thinks necessary on the evidence of the prosecution (307). The second set of circumstances arises when the accused, not accepting the version of the facts put forward by the prosecution, elects to give evidence himself but has no other evidence to call. In such a case, but for section 161, the procedure would have been that he, or his advocate, would open its case, he would give evidence and be cross-examined and re-examined, and his advocate would sum up his case (section 311). But section 161 says that giving of evidence by the accused person shall not give the prosecution (unless he is the Attorney-General or Solicitor-General in person) a right of reply. In our opinion the effect of this is that so far as regards the procedure governing the order of addresses; but only to that extent the case must be treated as if no evidence at all had been given. The procedure therefore will be that laid down by section 306 and 307: the court will call upon the accused to enter upon his defence (306(3)) i.e. his advocate will open his case Page 202 of 382
and the accused will give evidence and be cross-examined and re-examined. All that is altered is that now, by virtue of the last sentence of 306(3), the prosecutor will sum up the case for the prosecution and, finally, the advocate for the accused will sum up his case (307(1). In the third possible set of circumstances, when the accused, neither gives nor calls evidence but merely makes an unsworn statement the procedure will be the same save that, of course, the accused may not be cross-examined upon his statement. It is true that the code does not in terms provide for this eventuality, but if the fact of the accused, giving evidence does not deprive him of the last word, it is unreasonable to suppose that his making an unsworn statement (which is regarded as something less) would have- that effect. Similarly, the code fails to provide, expressly for the right of the prosecution to sum up when the accused elects to make an unsworn statement. Nevertheless the logical inference from section 306 is that the prosecution must have this right, for if the prosecution may sum up the case for the prosecution when accused elects not to exercise any of his rights; 'afortiori' he must have that right when the accused elects to avail himself of one of them and to make an unsworn statement, This is in accordance with the practice in England (See R vs Sherriff51 in which Darling J. held that the prosecution was entitled to sum all the evidence in the case after the prisoners had made unsworn statements from the dock, and that their counsel should then reply.
The correct procedure as summarized would be as follows;
A.
When the Court considers that there is no evidence that the accused committed the offence 306(1);
51
20 Cox Cr. C 334 Page 203 of 382
1. Prosecution opens 2. Evidence for prosecution 3. Prosecution sums up 4. Defence addresses
B.
When the Court Considers that there is evidence that the accused committed the offence 306(2);
1.
When an accused, elects to call witnesses and give evidence himself or make unsworn statement;
1. Prosecution opens 2. Evidence for prosecution 3. Defence, opens 4. Evidence or statement of accused 5. Evidence for defence 6. Defence sums up 7. Prosecution replies
II
Accused elects to call witnesses but not; to give evidence himself nor make an unsworn statement. (Procedure as in I but omitting 4)
Ill
Accused elects to give evidence or make an unsworn statement, but calls no witnesses 1. Prosecution opens 2. Evidence for prosecution 3. Defence opens 4. Evidence or statement of accused 5. Prosecution sums up 6. Defence replies Page 204 of 382
N/B: If Attorney-Genera] or Solicitor-General appear in person, 5 and 6 are reversed: Section 161. IV.
Accused elects neither to give evidence or make an. unsworn statement nor to call evidence
1. Prosecution opens 2. Evidence for prosecution 3. Prosecution sums up 4. Defence opens case N/B; If Attorney-General or Solicitor-General in person, 3 & 4 are reversed: Section 161. It will be noted, that the prosecutor has the last word in the second and fourth circumstances as above, but not in the first and third. In the case of Mbebi –v- R52, the prosecutor addressed the court at the close of the case notwithstanding that the defence did not call any witnesses. This was held by the Kenya Supreme Court to be contrary to section 161 and 310 of Cap 75. In R –v- Malakwen Arap Mute53, the Kenya Supreme Court held that:
"It is a mistake in procedure to allow the accused to give his evidence after he has called witnesses".
For the reason that as an accused person must be present in court during the whole of the hearing he should give his evidence first and not have the advantage, of listening to his own witnesses give evidence. This is the usual practice but it is submitted that the defence, should be given a discretion in such circumstances.
52 53
(1957)EA426. (1949) 23 (2) KLR 132 Page 205 of 382
I. SUMMING UP TO ASSESSORS In trials with the aid of assessors54, at the conclusion of the evidence and the address on behalf of the prosecution and the defence the judge may sum up to the assessors the evidence for the prosecution and the defence (section 322(1) Criminal Procedure Code). The Criminal Procedure Code uses the word "may" and therefore imposes no statutory obligation, on the Judge to do so; but this ought to be so. In Washington s/o Odinga -v- Regina55 the trial Judge did not sum up the evidence to the assessors or direct them on law. The court held that while there is no statutory obligation on the trial Judge to sum up the evidence to the assessors, it is a sound practice to do so except in the simplest of cases. It has been stated by Edwards C.J. in R v Bazilio Sentamu56 that in a trial with assessors all that the Judge may do is to sum up the evidence, and not bombard them with an elaborate lecture on common law but this view is not completely correct, for to be able to give a well reason opinion, the assessors would need a basic understanding of the relevant law. The better view is that furthered in Andrea s/o Kulinga v R57 to the effect that if a Judge chooses to sum up to the assessors, he ought to sum up both. the facts and the law in relation, to the facts. The court said:
"The opinions of assessors can be of great value and assistance to a trial Judge, but only if they fully understand the facts of the case before them in relation to the relevant law. If the law
54 55
56 57
(1957)EA426. The role of Assessors is discussed in detail in Chapter Twelve (infra). In 'this section the role of assessors is discussed only to the extent of giving clarify and completeness to the trial process in the High Court. (1954)EACA392. (1936.51)6 U.L.R 281. Page 206 of 382
is not explained and attention not drawn to salient facts of the case, the value of the assessors' opinions is correspondingly reduced”.
In the same case, the court held that failure to sum up is not necessarily fatal. A minor and non-material misdirection (in summing up) does not justify interference with conviction and is curable under section 382 of Criminal Procedure Code if it did not cause any prejudice to the accused: this was held in Mehar Singh Bensel V R58. In this case, the appellant, a surgeon, was convicted of manslaughter and appealed on grounds of alleged misdirection in. the summing up and the, irregular procedure of the trial Judge in formulating specific questions for the opinion of the assessors instead of taking their opinions on the case generally, which was contrary to [section 322] of Criminal Procedure Code and to natural justice. Also, in summing up, the Judge may direct assessors as to benefit of doubt being in favour of the accused, but an omission so to do is not fatal to a conviction - because the decision centres on the Judge and he must be presumed to know the relevant law59. However, a failure to direct the assessors as to any aspect of the defence has been held to be fatal to a conviction60 .
J. THE ROLE AND CONDUCT OF THE JUDGE & THE ASSESSORS Section 201 of the Criminal Procedure Code allows the Chief Justice to make rules prescribing the manner in which evidence shall be taken down in cases coming before the High Court. Such rules are to be found in The Criminal Procedure (Record of Evidence in the High Court) Rules61. These rules allow evidence to be taken as in Magistrates courts under sections 197, 198 and 199. 58 59 60 61
(1959)EA813. R vs Jack Jezelani (1947)14 EACA 70. Wafula s/o Waniamira v R (1957) EA 498. These rules were made pursuant to section 201 of Criminal Procedure Code Vide L.N. 344 of 1958 Page 207 of 382
The rules however provide that:
(i)
a judge of the High Court shall not be required to sign the evidence of each witness or to inform each witness that he is entitled to have this evidence read over to him;
(ii)
nothing therein shall derogate from the provisions of section 391 (which allows shorthand notes to be taken in trials before the High Court or Subordinate Courts).
In addition to proper recording, the judge must conduct himself properly at the trial and not be seen as partisan. In Lambert Houareau v R62, the trial judge put in some sixty eight (68) questions to the appellant and interrupted counsel during his examination-in-chief of the appellant. It was appealed, inter alia, that
(1)
the record of the trial was incomplete and did not contain all the evidence.
(2)
the judge took an undue part in the conduct of the case and, in consequence, the case for the appellant was not properly and fully put before the court.
The court held;
(i)
on the facts disclosed on the record, it was impossible for the court to say that: there had been a fair trial or that the appellant had a proper opportunity to put his defence to the court.
(ii)
if the course of a trial is such that the accused and his counsel are left
62
(1957)EA575. Page 208 of 382
with a reasonable feeling of grievance of this king, the trial has been less than satisfactory, and if the grievance is founded, on excessive interruptions and interventions by the court the rule that justice must be seen to be done has clearly not been observed.
For the undersstability of immense cross-examination of a defence witness from the bench, see also R v Cain63 and Jones v National Coal Board64. Further, and regarding conduct of a judge, Madan, Miller and Potter J.A had this to say;
"It is neither advisable for nor required of a trial Judge to prompt an accused person either to add to or to subtract from an unsworn statement made by him in court, in particular when the accused is represented by an advocate. The danger always is that the court, with the best of intentions and acting in the interest of the accused, by doing' so, may umwittingly become instrumental in leading the accused to making' an incriminating statement. The omission by the accused to refer to certain matters in his statement may be deliberate, and not necessarily an oversight65,
The actual nature and function of assessors in a High Court Criminal trial is not defined by the statute. In R v Gusambizi Wasonga66, the court observed that in the exercise of any functions of the assessors, the court is always to apply the test of what; is fair to an accused person, with regard to the cardinal principles of natural justice. It was here said dial the purpose of a judge to sit with 63 64 65 66
25 Cr. App.2 204 at 205, 1957)2 All E.R, 155 per Denning M.R. In Augustine Chebon A. Cherutich v R Cr. App No. 16 of 1982, (1948) 15 EACA65. Page 209 of 382
assessors is to consult with them in order to ascertain matters of local custom. Similar sentiments were expressed in Muhlikilikili Dhalamini & Others v R by Lord Atkin, he said:
"It must further be remembered that the provisions of giving the judge... the assistance of a native (read citizen) assessor cannot be regarded solely from the point of view of aid given to the judge. It operates, and no doubt it is intended to operate as a safeguard to natives (read citizens) accused of a crime and as a guarantee that their own customs and habits of life are not misunderstood67,
This emphasis on custom also features in the judgment of Bashyam Ayyangar J in King Emperor V Tirumal Reddi68. He said:
"... Assessors are analogous to expert witnesses... Thus it will be seen that provision was made ... for Europeans administering justice in foreign lands and therefore deficient in their knowledge of the custom and habits of the parties and witnesses... [to- have] the benefit of two or more respectable natives (read citizens) of the land as assessors possessing such knowledge... It will thus be appreciated that assessors opinion is really just expert opinion".
Customs no longer play the integral role that it used to play when we had native or African Courts. In any event, custom is hardly relevant to cases triable by the 67 68
(1942) A.C. 589. (1901 )ILR 24 Madras 523. Page 210 of 382
High Court, unless perhaps one brings the issue of witchcraft and claims grave and immediate provocation therefrom - in a charge, of murder. Yet even in such cases, such defence is hardly sustainable, Moreover, whether there is provocation or not would be a question of pure law for the Judge to rule on. Consequently, the view that assessors are mainly instrumental on questions of customs is at best archaic, and cannot justify having assessors in a criminal trial in the High Court. Their chief role then would be more to do with open justice and participation by the citizenry in the administration of justice. It is a salutary gesture to the adage of justice being done and being seen to be done. And in furtherance of their primary role; that they help the Judge arrive at justice, assessors are allowed to put questions to the witnesses through or with the permission of the Judge (section 174 of the Evidence Act). The assessors must be present throughout the trial. In Mohamedi &. Another v R69, the trial commenced with four assessors, and was adjourned to a date 9 months later. At the resumed hearing, only two of the original four assessors were present, and the trial proceeded with the two. In allowing the appeal, the court held that it was mandatory that a new trial be held if two or more of the assessors are absent. A trial conducted without assessors was declared a nullity in R v Abdulla Mali70. If one assessor is absent in the course of the trial, the trial may proceed with the other two. If, however, two or more are absent, a new trial must be conducted with the aid of fresh assessors (section 298(2)). In R v Assa Singh71, it was held that even if an assessor is absent merely for a day during which only evidence of a formal nature is given, he cannot resume and give his opinion on the case. Where an assessor is disqualified on grounds of personal interest, another must be selected to take his
69 70 71
(1973)EA 197. (1920-29)3. U.LR.51. See also R v Obau 15 K.L.K 107 & section 298 of Cap 75. (1937)4 EACA 41. Page 211 of 382
place. It was so held in Laurenti Busolo s/o Mukumba v R72', where it was said that:
"the words of section 298( 1) of the Criminal Procedure Code refer only to the physical absence of the assessor and cannot be extended to cases where, the assessor, though physically present and able to act is disqualified, from acting as an assessor by reason of special, circumstances such as personal interest".
K. JUDGEMENT AND SENTENCE For cases exclusively triable by the High Court, the death penalty is mandatory if the accused is found guilty. For that reason, evidence of previous conviction and/or mitigation is immaterial. As soon as it passes it's sentence - that the accused is sentenced to suffer death in a manner prescribed by law - if guilty, the court becomes 'functus officio'. But the court must, before rising inform the convict of the time within which he may appeal (section 330 of Criminal Procedure Code). Section 379 gives the basis upon which one may appeal.
The Criminal Procedure Code was amended by inserting an additional paragraph; victim impact statements which is defined as “a statement containing particulars of:-
(a)
in case of a primary victim any personal harm suffered by the victim as a direct result of the offence.
(b)
72
In the case of a family victim the impact of the primary
(1957)EA298. Page 212 of 382
victims death on members of the primary victims immediate family. Under Section 329 (c) of the Criminal Procedure Code a victim impact statement may be received and considered. if the Court considers it appropriate to do so at any time after it convicts, but before sentencing an offender. The court may also receive or consider a victim impact statement if the primary victim has died as a direct result of the offence from or given by a family victim.
However, the giving of a victim impact statement is not mandatory.
L. CONCLUSION Although it is clear that the substance of a judgment is fundamental, the form is important in lending credence to the substance of equal importance is the procedure leading to the delivery of the judgment which must be followed meticulously.
Page 213 of 382
CHAPTER TWELVE
ASSESSORS A. INTRODUCTION
The assessor system was retained after independence. The value of assessors was explained by Lord AA in Dhalamini –vs- King that; “... the duty of an assessor is not simply to aid, it operates and is no doubt intended to operate as a safeguard to natives accused of a crime and a guarantee to the native population that their own customs and habits were not misunderstood.”1
The assessor should occupy a central role in criminal justice, not only because what he says conforms more to the wishes of the community, but also because it is more acceptable to justice. The ambivalence pervading the assessor system has survived the rigours of independence. For example the legislature has unconsciously or perhaps intentionally left the actual role of an assessor in criminal trials undefined. The scantiness of the statutory provisions has left a large area of uncertainty which has been filled but only partly by the rulings of the courts over the year. In appreciating the procedural law as it relates to assessors, its propriety and place in the administration of criminal justice, various questions must be answered; viz:
(i)
Is the role played by the assessors adequate?
1
(1942)A.C. 583. Page 214 of 382
(ii)
If not do we abandon the whole system and replace it with the jury system?
iii)
If we are to retain the assessors, what role should they play in the criminal justice system and what reforms are necessary to facilitate this role, and
(iv)
Should the system be confined to the High Court or should it be extended to the subordinate Courts?
B. EVOLUTION OF THE ASSESSOR SYSTEM IN KENYA The initial stages of the evolution of the assessor system can be traced to the 1902 East African Order-in-Council. This order provided inter-alia that:
In all cases civil and criminal to which natives are parties every court, (a)
shall be guided by the native law so long as it is applicable and is not repugnant to justice and morality or inconsistent with any orders in council or ordinances or any regulation or rule made under any order in council or ordinance;
(b)
And shall decide all such cases according to substantial justice without undue regard to technicalities or procedure and without undue delay2."
The wording of this order left room for the Africans to participate in the administration of justice. The fact that the courts were to be guided by the native law meant that few competent Africans would be consulted to give their opinion on the matters in question.
Another line that can be followed in tracing this history is with British
2
East African Order in Council 1902 No. 31 Page 215 of 382
India3. The earliest [European] legislation which authorized European functionaries presiding in courts of sessions to constitute two or more respectable natives to assist them as assessors was Reg. VI of 1832 which applied only to Bengal. By the provisions of Act VIII of 1832, the system was extended to other places/parts of British Colonial Africa. The assessor system was introduced as a substitute for the more vigorous jury system. Following the failure of the jury system in the colonies of British West Africa, it was found necessary to introduce a system befitting the Africans (sic). The system had worked in British India and it was meticulously argued that there was no reason why the system could, not work among the natives of Africa. The 1897 Native Courts Regulation section 8 provided for the trial of an accused with the aid of assessors; the High Court could invite cooperation of native assessors with a consultative voice only for the purpose of fury information where required respecting native law and custom. This provision clearly indicates that appointment to sit and hear a case was purely discretionary. However, in 1907 following the inauguration of the Courts Ordinance, the following was enacted that;
"Except where otherwise expressly provided by law any person committed for trial to the High Council shall be tried by a Judge of the High Court sitting with not less than three assessors".
The word 'shall' according to the Interpretation of Statutes and General Provisions Act (Cap 2) means mandatory.
3
See King Emperor-vs- Trumal Reddi (1901) I.L.R 24 MADRAS 523. Page 216 of 382
This brief history forms the foundation of the system of assessors as we know it today.
C.
THE ASSESSOR SYSTEM AND THE JURY SYSTEM
In the eyes of the law an assessor is the epitome of the reasonable man, the 'man' in the street. This is only a restatement of a renowned colonialist E.W Park who said of assessors:
"... a person usually an expert in the subject matter under consideration who sits with the judge and assists him from his special knowledge.”4
This definition has been criticised but the critics stand corrected. The definition above does not literally mean that a person who serves as an assessor should be an expert in the strict meaning of the word. All it means is that the person who serves as an assessor should stand in such position as to know, not through severe intellectual exercise or by protracted thought, but by mere adaptation of the matter in question. It is for this reason that assessors are normally chosen from the ordinary people.
The role of the assessors should be seen from the perspective that they (assessors) ought to have their roles defined in very clear and straight forward terms. The English legal system has extolled the value of the jury system. Michael Zander5 quoted Lord Denning regarding the high esteem in which the jury is held in England;
4 5
A. E.W PARK in his treatise 'Sources of Nigerian Law' at page 8. Michael Zander; "A Matter of Justice: The Legal System in Ferment," Oxford, Oxford University Press, 1989 at p.210. Page 217 of 382
"... The Court of Appeal hardly ever interferes with verdict of a jury.”6
Zander has infact put it more lucidly that;
"The Jury system is strong because it has so many different virtues... The brief decision 'Guilty or Not Guilty' is also a way of reducing anxiety about the result of cases. It may be right or wrong but it inspires confidence in a way that a reasoned decision given by a judge cannot". "Over the years the jury has played a significant role in mitigating the harshness of the law and the system by its own form of equity and mercy7"
On the other hand, in other countries where the assessor system is used, Kenya included, they have stubbornly stuck to the colonial dogma that the opinion of the assessor is not binding on the judge which in effect has shut the mass participation in the administration of criminal justice. The present legislation was adopted from its colonial counterpart. The Kenyan 'independent' legislature has failed to consider the social-economic conditions under which the laws governing assessors were passed.
D. PROCEDURAL ASPECTS OF THE ASSESSOR SYSTEM The importance of the assessor in the discharge of justice cannot be overemphasized. The ends of justice shall only be conveniently arrived at if the assessors are taken seriously. This is infact recognized by the Criminal Procedure Code whose section 262 states that "all trials before the High Court 6 7
Ward -vs- James (1965)1 All ER 563 at 572 Michael Zander, Supra at 235. Page 218 of 382
shall be with the aid of assessors", the word “shall” make it compulsory for the High Court to sit with the aid of the assessors. A High Court's decision sitting without assessors will be reduced to a nullity. In Rex –vs- Yowasi8 it was held that a court sitting without assessors where they were required by law would be leaping the jurisdiction to try such cases. This was infact a restatement in the very words by the East African Court of Appeal in R -vs- Abdaka Mali9 and the court strongly reiterated their earlier statement that where a court sits without assessors where it should have done so, the trial is a nullity. The above is seemingly a very positive move towards the direction of recognising the central role of the assessors. However, this is watered down by section 322 of the Criminal Procedure Code which provides that the judge, in giving his verdict, shall not be bound to conform to the opinion of the assessors. This in effect means that the judge can ignore the opinion of the assessors.
Sir Henley Cousley, a prominent colonial judge in Ghana has argued that the ends of justice are adequately catered for in that although a judge is not bound to accept the opinions of the assessors, he has the duty to sum up to them10. With the greatest of respect, these sentiments betray the intentions of the learned judge. It is no stretch of imagination that since the official language of the Court is English, only a few will understand and likewise even fewer will qualify to serve as assessors. Even for those who can understand English they have an additional problem. The lawyers' language is unfamiliar to them and the legal jargon leaves them more mesmerized than informed. Why then should one expect a rational assessment from a set of facts that have not been understood? It can therefore be asserted that the present system caters for 'spectators' and not assessors as contemplated by its originators.
8 9 10
(1939)6 E.A.C.A 126. (1921) 3 U.L.R 51 The Receiver, (1954)14 West African Court of Appeal 501. Page 219 of 382
E. SELECTION OF ASSESSORS In Kenya, the law provides that all persons between the ages of twenty-one and sixty years are eligible to serve as assessors11. Unlike the jury system, eligibility does not provide for any literacy or property qualifications (under the jury one should own property). The once cherished notion that assessors should come from the same place as the accused has long been dispensed with and for good reason. Given that customary law has been hacked to near nothing by section 3(2) of the judicature Act, and that it has been replaced by English law, the need to have the assessor coming from the permanent domicile of the accused can safely be abandoned. But the Chief Justice has discretionary powers to make rules pertaining to areas within which a person may be summoned to serve as an assessor and he also has inherent power to regulate the selection and summoning of assessors12. The fact that assessors should be common people is amply demonstrated by the exclusion of certain categories of persons from serving as assessors. Section 266 excludes the following persons from serving as assessors;
(a)
the President and Members of the Cabinet,
(b)
the Speaker and Members of the National Assembly,
(c)
the Clerk of the National Assembly, and persons appointed to act as official reporters to the National Assembly,
(d)
persons actively discharging the duties of priests or ministers of their respective religions,
(e)
physicians, surgeons and apothecaries in active practice,
(f)
legal practitioners in active practice,
11
Section 265(9(1) Criminal Procedure Code (Cap 75). Section 265(2) Criminal Procedure Code (Cap 75).
12
Page 220 of 382
(g)
officers of the armed forces,
(h)
members of the police force,
(i)
persons exempted from personal appearance in court under the provisions of the Civil Procedure Act13,
(j)
persons disabled by mental or bodily infirmity,
(k)
other persons exempted by the Attorney-General from liability to serve as assessors.
Pursuant to section 266(K) above and via L. N. No.345 of 1962, an additional list of persons exempt from assessor service is as hereunder:
(a)
Permanent Secretaries.
(b)
Managing Director, Kenya Railways Corporation
(c)
Managing Director, Kenya Posts & Telecommunications
(d)
Officers engaged in the administration of justice including Magistrates, officers of the Judicial Department and of the Office of the AttorneyGeneral, the Principal Probation Officer and Probation officers.
(e)
Officers of the Prisons Department, the Chief Inspector of Approved Schools and officers on the staff of approved schools.
(f)
Dentists in active practice.
(g)
Consular offices de carriere and consular employees.
(h)
Mayors, Chairman of County Councils, town clerks to County councils.
The summoning of assessors is guided by sections 269 - 273 of the Criminal Procedure Code.
The law requires that the Registrar of the High Court, at least seven days before 13
Cap 21 Laws of Kenya (Civil Procedure Acts). Page 221 of 382
the day which may from time to time be fixed for the hearing or the holding of a session of the High Court, do send a letter to a Magistrate holding a subordinate court of first class having jurisdiction in the province or the district in which such sessions are to be held requesting him to summon as many persons as possible to the judge who is to preside over the session needed for trials with the aid of assessors at the said session14. The judge is to select three out of those summoned to serve as assessors as required by section 263 of the Criminal Procedure Code. The assessors are to be summoned in writing and their attendance required in the summons to be at a stated place and time 15. The High Court may for a reasonable cause excuse an assessor from attendance at any particular session and may at the conclusion of the trial direct that an assessor who served at such trial shall not be summoned to serve again as an assessor for a period of twelve months or for such longer period as the court deems fit16. The above shows that there is no limitation for the period in which a person may serve as an assessor. It is possible that one may continue service for as long as the court wishes. The risks inherent in such a provision need no emphasis. By continuing to serve as an assessor, a person ceases to be a common man. By adaptation and out of long stay in the court he becomes adequately showered with virtues similar to those of the judge. More serious is the fact that he becomes more susceptible to corruption.
It is noteworthy that if one who has been summoned to serve as an assessor fails to attend without reasonable cause, he is liable to a fine 'not exceeding four hundred shillings’17. Not all persons summoned to serve as assessors qualify to serve. There may be 14 15 16 17
Section 269 Criminal Procedure Code (Cap 75). Section 270 Criminal Procedure Code (Cap 75). Section 271 Criminal Procedure Code (Cap 75). Section 273 Criminal Procedure Code (Cap 75) Page 222 of 382
preliminary objections on the ground that an assessor knew the facts or that he is related to the accused or to the complainant. There is no express provision in the Criminal Procedure Code requiring that an accused be given a chance to object to any of the assessors from so serving but it was stated in Ndirangu –vsR18 that objection to a particular assessor on good grounds is clearly a sound practice. The appellant in this case was convicted of murder. Throughout the trial he chose to remain mute and took no part whatsoever in his trial. On appeal he argued that the wife of one of the assessors at his trial was the sister of the deceased's wife and he complained that this had prejudiced him. The court concerned itself with grounds on which the objection to an assessor is made. If an injustice will be occasioned by an assessor sitting with the judge, such a ground is feasible and he should be dismissed. The proper course to be taken when objection has been taken by an accused was discussed in the case of Andiazi –vs- R19. The trial judge should inquire into the allegation in a kind of trial within a trial. If he finds that the complaint is unfounded he may order the trial to proceed. If the complaint is valid he should adjourn the hearing to pave way for another assessor to be summoned. A yearly list is made which shows the names and addresses of assessors. Where a session which requires assessors is to begin, the assessors must always be there20. In Kenya past experience shows that assessors chosen for trial were of the same ethnic group as the accused. This rule has been relegated to the periphery except in cases of provocation where the assessor should come from the same ethnic group as the accused21. The court has the discretion to discharge any assessor who has been objected to or any assessor who admits that he is related to the accused or knows the facts or is in any way connected to the accused. 18 19 20 21
(1959)EA875. (1967)EA813. Section 262 Criminal Procedure Code (Cap 75). As per Ainley CJ in R -vs- Wilkin (1964) unreported. Page 223 of 382
Admittedly, the law on this subject is not adequate. But there should be penal provisions for those assessors who knowing the facts refuse to disclose so during or prior to the trial. Under section 265(2), the CJ is given a discretion to make rules regulating the area within which a person may be summoned to serve as an assessor and also power to regulate the selection of assessors. No such rules have been made so far. For that reason a judge's discretion in selection is absolutely unfettered, and although it must be exercised judiciously, failure to take into account the race of the accused cannot be said to be an improper exercise of that discretion. That was the ruling in the Republic -v- W. Y. Wilken22. In the said case, the accused was charged with murder of an African by confining him in a box with insufficient air until he could be handed over to the Police. Counsel for the accused objected to the Panel of Assessors submitting that the practice of selecting assessors of the same race as the accused should now extend to the accused. He submitted further that the judge should exercise his discretion in the accused person's favour as the court will always apply the test of what is fair to an accused person keeping in mind the principles of natural justice. The court observed in dismissing the objection that although the practice had been to try Asians with the aid of three Asian Assessors and Africans with the aid of three African assessors,
"all this has not conferred upon an accused of any race the right to be tried with the aid of assessors exclusively of his own race, nor has it, to my mind, established a principle that it is necessary just and essential that a man should be so tried. It would be wrong, I think that any such principle should be established... Certainly I think the Judge's powers of selection should not be
22
(1965)EA286 Page 224 of 382
governed or fettered by considerations of race.”23
It was thus ordered that the panel comprise two Europeans and one African as selected earlier.
Having summoned assessors and none having been disqualified under any of the foregoing grounds, the Judge shall select three from the list of those summoned in accordance with sections 263 and 297 of the Criminal Procedure Code.
The Remuneration of assessors is dealt with under the Criminal Procedure (Remuneration of Witnesses and Assessors) Rules enacted through Legal Notice No. 474 of 1963. For assessors who are public officers they may be paid such reasonable out of pocket expenses as he may have incurred other than those payable from departmental vote in accordance with the regulations obtaining at the time. For those who are not public officers, their reasonable travelling and out of pocket expenses as ordered by the Court will be paid.
F.
THE ASSESSOR IN COURT
The actual nature and extent of the functions of the assessor in criminal trials in Kenya is not adequately if at all, defined by the statute. However, courts have tried to fill in the gaps left by the legislature and in the Gusambizi Wesonga Case24 the court observed that in the exercise of any functions of assessors, the court is always to apply the test of what is fair to an accused person keeping in mind and considering the principles of natural justice.
23 24
Ibid at Pg. 288 (1948) F.A.CA 65. Page 225 of 382
The session should start with three assessors but the absence of one does not necessarily invalidate the trial. For example in Assah Singh -vs- R25 the appellant was tried for attempted arson and convicted by a judge sitting with three assessors. During the trial one of the assessors was absent for one day during which only evidence of a formal nature was taken, he then resumed attendance and was present for the remaining period and gave his opinions with the other assessors which was accepted. At the end of the hearing and within the ambit of section 322 the judge may sum up the evidence for the prosecution and for the defence and whereupon he will require each of the assessors to state his own opinion orally. The word "may" makes it discretionary on the judge to sum up the evidence yet it was infact well stated in Washington s/o Odindo -vs- R26 that it is very sound practice which is almost invariably followed by the judges except in very simple cases to sum up for the assessors. Going by the authority of Andrea Kulinga –vs- R27 the rule is that if a judge chooses to sum up to the assessors he must sum up both the facts and the law. The court further observed: "The opinion of the assessors can be of great value and assistance to a trial judge but only if they fully understand the facts of the case before them in relation to the relevant law. If the law is not explained and attention not drawn to the salient facts of the case, the value of the assessors’ opinion is correspondingly reduced".
Further, a positive misdirection to the assessors will lead to a conviction being quashed. This was settled in Wafula -vs- R28.
25 26 27 28
(1937) 4 E.A.C.A 41 (1954) 21 E.A.C.A. 392 (1958) EA 684 (1957) EA 498 Page 226 of 382
The statutory provision is that assessors are to give their opinions orally and individually. In practice such opinions should be given in open court. Since the credibility of the assessors' opinion depends on reasons behind it, it has been required that the assessors should give reason or reasons for their opinion. This was in the case of Paulo Lwevola -vs- R29 where it was said that the reasons for the opinion become even more relevant if the case goes on appeal. Although section 322(1) requires a judge to record the opinion of each assessor, the Court of Appeal in Francis Muzungu –vs- R30 held that the irregularity of a judge in failing to take the opinion of each assessor is not fatal unless it has occasioned a failure of justice.
It is desirable that the judge should record his reasons for disagreeing with the unanimous opinion of the assessors particularly where they have given good grounds for their opinions. This was stated by the East African Court of Appeal in Baland Singh -vs- R.31
Sometimes a discharge of one assessor during hearing on the ground of personal interest may render the trial a nullity. In Laurenti -vs- R32
the
appellant was convicted of murder by the Supreme Court of Kenya and he appealed against his conviction. During the trial it came to the notice of the court that one of the assessors had taken part in a search instituted by police for articles which might become real evidence at the trial and was present when a spear shaft and 'a panga' were found. The assessor concerned was thereupon discharged and the trial proceeded with the other two assessors. It was held that the absence of an assessor or disqualification due to personal interest or such other special circumstances annulled the trial. The trial was a nullity because of 29 30 31 32
(1943) 10 E.A.C.A. 63 (1958) E..A 192. (1954) 21 E.A.C.A 209 (1957) EA. 298 Page 227 of 382
proceeding with only two assessors, the one having been disqualified on account of personal interest. A retrial was ordered. It is not fatal if the assessors consult before giving their opinion. Section 322(4) allows for such consultations. This has been subjected to the scrutiny of the court in Abdalla Omar -vs- R33. In this case, it was stated that there is nothing wrong against the retirement of assessors for consultation. The court noted that the practice is frequent in East Africa. It followed its earlier decision in R -vsMungu Atosha34 in which it was held that the retirement of assessors is neither illegal nor irregular if after the retirement the judge obtains the individual opinion of each assessor and records it. In the Abdalla Case, the court stated: “
... we think that there is nothing wrong in principle against the
retirement of assessors for consultation. This is a frequent practice throughout the Eastern African territories in at least thre of which it has statutory sanction.”35
The opinion of the assessors should be taken on the general question of whether the accused is guilty or not guilty as charged. The desirability of obtaining such opinion was expressed in Selemani s/o Ussi -vs- R.36 The accused were tried and convicted for murder. The assessors gave their opinion and did not state nor were they asked to state specifically whether they considered the accused guilty or not guilty as charged. On appeal, though this point was not the basis of the appeal, the Court of Appeal noted that in addition to any other answers which may be given, each assessor should state specifically whether he considers the accused person to be guilty or not guilty on each count on which he is required
33 34 35 36
(1958) EA725. (1938) EACA 143. (1958) EA 725 at 728 para. E. (1963) E.A. 442. Page 228 of 382
to state his opinion. In Lamututu Mokalya –vs- R37 the opinion of the assessors was not taken on the general issue as to guilt or innocence of the accused. It was said that when the opinion of assessors is taken in the form of answers to specific questions they must also be asked to state their opinion on them as a whole and on the general issue as to the guilt or innocence of the accused. However, questions to assessors should be confined to matters on issues peculiarly within their knowledge and must be given an opportunity to express views on the case generally.38
Although it is required that assessors should sit throughout the trial, they must be absent during "a trial within a trial". The rationale behind this is that the assessors are common men and should only hear that which is strictly necessary and should avoid any circumstance that may tend to create any bias.
G. OPINION OF ASSESSORS After the summing up the Judge shall then require each of the assessors to state his opinion orally and shall record each opinion. The case of Mehar Singh Bansel39 is authority that while section 322 mandates the Judge to take the opinion of the assessors generally on the case as a whole, there is no objection to specific questions being put to the assessors either before or after a general opinion on the case has been obtained. If they so wish, the assessors may retire for the purpose of considering their opinions and there is nothing to prohibit them from consultation during such retirement.40 When the assessors give their opinion, it is desirable that they state their reasons.41 The Judge is not bound to
37 38 39 40 41
(1958) EA 706. Rajabu Jalum -vs- R (1965) E.A 365. (1959)EA813. Abdullahi All vR (1958) EA. R v Paulo Lwerola (1943)10 EACA 63. Page 229 of 382
accept their opinions42. Where the assessors' opinion is divided, the Judge decides the issue according to his own view, according each opinion due weight and explaining why he adopts a given view.
Section 322(1) does not mandate assessors to give their opinions in open court. All it does require is that such opinion be given orally and individually43. However, it is submitted that there is much to commend the practice of giving opinion in open court. In the Privy Council decision of Mahlikilili Dhalamini & Others, the assessors gave their opinions in chambers. It was held that assessors must give their opinions in open court: much as a Judge is required to 'give' his judgment and deemed required so to do in open court so should assessors "give their opinions'. By virtue of section 261 of Criminal Procedure Code which requires the practice of the High Court to be assimilated as nearly as possible to the Courts of Oyer and Terminer and General Gaol Delivery in England that should be the law in Kenya. If the opinion of assessors is recorded in the form of specific answers to specific questions in accordance with the decision in Mehar Singh Bansel, they must also be asked to state their opinion on the case as a whole and on the general issue as to guilt or innocence of the accused person44. And even after such opinion is taken, a judge has power to hear additional evidence before judgment; in such cases the opinions of the assessors can be taken again.45 After each assessor has stated his opinion, the Judge is required to give his judgment; but in so doing, he is not bound to conform to the opinions of the assessors. But in all cases where a trial Judge comes to a contrary finding on the facts to the opinions unanimously shared by the assessor, it is good practice for
42 43
44 45
Habib Kara Vesta v R (1943)1 EACA91. In Francis Juma Misingu. v R (1958) FA 192, it was said that the irregularity of not taking each opinion separately is curable unless it has occasioned a failure of justice. Washington s/o Odindo v R (1954) EACA 392. Mulaba Mugeni v R(1964)EA 518 Page 230 of 382
the Judge to state in his judgment his reasons for disagreeing with them46. This is all the more important where the assessors have given reasonable grounds for their opinions.47
H. ASSESSORS AS EXPERTS
That assessors' opinions are non-binding on the Judge begs the question. Are assessor's opinions (therefore) no less or more than expert opinion as has been argued?
In English law assessors imply expertise. The English Court of Appeal has power to appoint any persons with 'special expert knowledge' to act as an assessor where it appears to the court that such special knowledge is required 48. In the Kenyan and East African context, we have seen cases decided by Judges who have viewed assessors as no more than experts on matters of customs and habits:- thus their presence in a criminal trial. This, as pointed out earlier is a fallacious position because it was relevant in colonial days, was argued that opinion of assessors are not admissible 'per se' as they are no more than expert witnesses49. In R v Ndambere50 the court held that since an assessor talking on a custom speaks as an expert, he must be cross-examined otherwise an accused may be denied of the only opportunity to reassert his innocence. The contrary view to this is furthered by R v Mutwiwa51 which holds that since the opinion of an assessor on custom does not bind a Judge, there is no need for crossexamination or evidence in rebuttal.
46 47 48 49 50 51
R v Mwi'la (1948)15 EACA 128. Baland Singh v Reg (1954) EACA 209. See Douglas Brown 2nd Ed.(ante) at Chapter 19, Professor A. N. Allot in 20 M.L.R. Pg 250 furthers this position. (1947)14 EACA 85. (1935)2 EACA 66. Page 231 of 382
For all it was worth, the status of assessors as experts has waned. It was important in the pre-independence period when custom was an integral part of Criminal law, and when the view on custom as proffered by assessors almost always carried the day. Then, and for that reason, assessors' opinion as to a matter of custom would justifiably occasion friction. Not so now. The purpose of trial with assessors has in itself changed and their opinion on custom is not called now. The issue of expertise or otherwise does not arise, for what expertise is for in a treason or murder trial? Therefore, we cannot treat our assessors as experts as in England and the pre-independent Kenya.
1.
EVALUATION AND RECOMMENDATIONS
The role played by assessors ought to be a noble one of aiding the court. However, one sees from the cases decided with their help that the system is far below the expected standards. Very often the judges disregard the opinion of the assessors and proceed on the basis that the opinion of the assessors is not binding on them. The procedure of selecting the assessors is also haphazard. There is a gradual inclination that the concept of English type of justice is well entrenched here and that all the people are conversant with it. This is not the case. For example analysis of Paul Ekai -vs- R52 reveals the shortcomings. In this case, two of the assessors were of the same ethnic group as the accused while the third was an American. The presiding judge, Muli -J- found the accused guilty of murdering Joy Adamson. The Two Turkana Assessors found him not guilty while the American found him guilty. The judge would have well quoted Thacker -J- in the Ogeda Case53 where the learned judge in this rape case stated:
52 53
Crim. App No. 15 of 1981. (1941) 19 K.LR 25 Page 232 of 382
"Each of the assessors returned an opinion of not guilty and I suspect that the opinions are based not upon evidence they have heard but upon inter-tribal prejudices... I deplore their opinions
which
are
either
a
result
of
stupidity
or
pervasiveness."
The above entitlements cannot be viewed as utterances of a biased judge. They are part of a given socio-economic superstructure where one class lives under the control and influence of another class. This is the type of superstructure that Kenya inherited and it is the same that is jealously sought to be maintained. This system insists that the Africans' concepts are medieval and this has led to the content being slowly assimilated to the regrettable province of neocolonialism. The prejudices expressed above are not confined to Kenya alone. They occur and recur in other African Countries. A case in point in Uganda is Mutwalumbi Bukuli -vs-Busoga54 where while commenting on the opinion of the assessors, the learned judge without fear had this to say:
"The reason is not that they did not see the facts; but both assessors are not worthy the name of assessors as they think in religion than in Justice".
The contradiction underlying the assessor system is only a reflection of the inherent flaws in the entire system. Piecemeal reforms may not give the desired effects and an overhaul of the system with various reforms should be worked out. This will probably be formulated to accommodate some of the following points. 54
(1964) EA 713 Page 233 of 382
J. A CASE FOR REFORM
1)
The system is characterized by the "give and take" practice. For instance the requirement that all trials before the High Court shall be with the aid of assessors is very welcome. However, when the same statute provides that their opinions are not binding, their practiced role is devalued. This "give and take" philosophy renders the workings of the system not only a mere sham but a sickening illusion.
2)
The time for which one can serve as an assessor should be stipulated and well limited so that the person is an actual assessor. Where one person has served as an assessor for many sessions, he no longer represents the reasonable man in the 'omnibus', but is now a semi-professional or even a professional in the law and practice and well equipped with the 'virtues inherent in the bench’.
3)
That Magistrates also sit with assessors because this is where most cases are handled.
4)
There should be a statutory requirement that the assessors should be men (and women!) of some formal learning so that they are not confused and bewildered, by the lawyers' language.
5) The legislature should reform the present legislation so that the role of assessors is clearly redefined taking into account the Kenyan situation both social, economic, and political as contradistinguished from the colonial experience when legislation was adopted. In a nutshell the system should be overhauled to give it practical relevance and currency. Page 234 of 382
There is a bill in Parliament which proposes to amend the Criminal Procedure Code so as to abolish the sytem of trial with the aid of assessors in the High Court in order to ensure speedy, efficient, cost effective and fair trial in accordance with the present day conditions in Kenya.
Page 235 of 382
CHAPTER THIRTEEN
PROCEDURE IN CASES OF INSANITY
A. INTRODUCTION
The rules regarding the procedure in cases of insanity cannot be discussed exhaustively without reference to the English background. Indeed, the McNaughten rules which have become part of the criminal law lexicon have their genesis in English Law Criminal Jurisprudence.
The word 'insanity' was formerly a part of scientific nomenclature but today the word is employed principally as a term of legal significance. So used it denotes those conditions of mental disorder or defects which modify certain of the legal relationships, rights and obligations of the afflicted person. The legal relations, rights, privileges and obligations of persons assume the existence of a degree of mental capacity sufficient to enable the person to manage his conduct and affairs in the ordinary contingencies of life. When such capacity is lacking by reason of insanity, the law relieves the insane person of certain obligations and responsibilities both in criminal and civil law. Thus there is no single test of insanity and therefore reference must always be made to the particular purpose for which the inquiry is made. This explains the fact that even in respect of the same rule, legal authority is sometimes sharply divided. Due to the centrality of insanity with regard to criminal responsibility, the Criminal Procedure Code provides the procedure to be followed when insanity is in issue. Insanity ought to be understood in two facets. The first one is when it is alleged as a defence, that is, the person was insane at the time of the act which now constitutes the offence. The second is what has been termed in other jurisdictions as procedural insanity, that is, where the person, though sane at the time of the act, no longer Page 236 of 382
enjoys the same degree of sanity to such an extent as to render him incapable of understanding the charge and or making his defence. The two facets are not always separable. At times, a person's insanity persists all the way from commission of the crime to the time of the trial. With the above in mind, it is necessary to mention in passing the strength of the issue of insanity as understood from our laws before delving into the substantive discussion.
Section 77(1) of the Constitution requires that every person accused of a criminal offence be afforded a fair hearing. It further provides that the person be made to understand the charge1. The Criminal Procedure Code at section 207(1) requires that the charge be read and explained to the accused so that he can be able to make his defence. As understood from our statutes a fair hearing embodies a clear understanding of the proceedings. If the accused is insane, he cannot be said to understand the proceedings or the trial, and this contravention of the Constitution would annul any trial of this nature.
It is against this background that the procedure in conducting this trial where insanity is an issue must be predicated.
B. PROCEDURE IN CASE OF LUNACY OR OTHER INCAPACITY OF THE ACCUSED PERSON
The procedure to be adopted when the issue of insanity arises in the course of a criminal trial is provided by the Criminal Procedure Code under sections 162 – 167. The code requires that when in the course of a trial or committal proceedings the court finds that an accused person is of unsound mind thereby incapacitated
1
Constitution section 77(2) (b) 1998 (1992) Text. Page 237 of 382
from making his defence, it shall inquire into the fact of unsoundness of the accused's mind2. Should it come to the conclusion that he is of unsound mind, it has to postpone further proceedings. Bail may be taken, but on condition that there is enough security. However, if the offence is one for which bail may not be given or there is insufficient security for the insane, the court is to order that he be detained in safe-custody and make a report thereof to the Minister for consideration by the President. Once such a report is made, the President upon considering it may order that the accused be detained in a mental hospital or any other place he deems suitable. The court is to issue a warrant to that effect and such a warrant is enough authority for the detention of the accused until the President makes a further order in the matter. However, the court which found him incapable of making his defence may recall him as provided by the Criminal Procedure Code3. It is not only under section 162 that a person may be detained. Section 280 (of the Criminal Procedure Code) provides that if an accused person, having been arraigned upon an information stands mute of malice, the court will enter a plea of not guilty and thereupon proceed to determine whether his mind is sound or otherwise. If found to be of sound mind the case should continue but if his mind is unsound and he/she is consequently incapable of making his defence, the trial is to be postponed and the accused detained in safe custody and a report forwarded to the President for consideration.
The custody in which the accused person is to be detained must be a mental hospital and his condition must be monitored by a medical officer in charge. When such an officer is of the opinion that the accused is in such an improved state of mind as to be able to make his defence, he is required to forward a
2 3
Section 162(1) Criminal Procedure Code (Cap 75) Section 162(3) Criminal Procedure Code (Cap.75) Page 238 of 382
certificate to that effect to the Attorney-General4. This is done for the purpose of enabling the court which had made a finding of the unsoundness of mind to be advised whether the Republic wishes to continue with proceedings against that person or not5. If the State wishes to continue with the proceedings the person is brought before the court in which case section 164 applies as discussed below. It must however be noted that if the State does not wish to continue with the proceedings against the accused, the court is to make an order to the effect that the accused person be discharged in respect of those proceedings. This discharge is not to operate as a bar to any subsequent proceedings against him on account of the same facts.
C.
RESUMPTION OF PROCEEDINGS
After the postponement of a trial the court may resume such trial if it is proved to the satisfaction of the court that the accused is capable of making his defence. The certificate forwarded to the Attorney-General under section 163 may be tendered in evidence to show the accused's state of mind, but it must be signed by the medical officer.6
The defence of lunacy may be adduced at a trial. If the defence is adduced at the time of the committal proceedings and the accused appears to be of sound mind at that time, the court, notwithstanding the fact that it is alleged that the accused was insane at the time the act which is now charged was committed, shall proceed with the proceedings and commit him for trial.7 What this means is that lunacy at the time when the offence was allegedly committed is no bar to the continuance of the committal proceedings provided that the person is sane at the 4 5 6 7
Section 163(1) Criminal Procedure Code (Cap.75). Section 163(2) Criminal Procedure Code (Cap.75). Section 164 Criminal Procedure Code (Cap 75). Section 165 Criminal Procedure Code (Cap 75). Page 239 of 382
time of the committal proceedings.
In like terms, if the defence is adduced at the trial to the effect that although the accused person is presently sane he was insane at the time when the act charged was committed, the court is by virtue of section 166 (Criminal Procedure Code) supposed to make a special finding that he is 'guilty but insane'. That is done only when and if the evidence so adduced would have warranted a conviction but for the insanity. This special finding of guilty but insane forms another topic of discussion later.
The procedure to be followed once such a finding has been made is also outlined in the Criminal Procedure Code, but it is important before going into it to consider how courts have exercised their role in not only interpreting but also applying the law with regard to the special finding. A case in point is R -vsSaidi Kabila Kiunga.8 The accused was charged with unlawful wounding contrary to section 228 of the Tanzanian Penal Code and was found guilty but insane so as not to be responsible for his actions. The accused said he did not know anything to the effect that he committed the said offence and said he was out of his senses. On revision, it was ruled that the evidence regarding the accused's insanity did no more than raise a doubt as to his sanity at the time of the act, but it fell short of establishing a margin of profitability on the side of insanity. Further, it was held that when a person is insane but found to have committed the offence, a special finding that is neither a conviction nor an acquittal is passed; guilty but insane. However, the finding of the lower court was set aside on account of various irregularities in the evidence. Spry -J- said inter alia that the accused;
8
(1963) EA 1 Page 240 of 382
“... must show, on all evidence, that insanity is more likely than sanity, though it may be ever so little likely. Merely to raise a reasonable doubt might still leave the balance tilted on the side of sanity.9"
The burden of proof is on the defence since the law presumes sanity of the accused until the contrary is proved.
The issue of insanity as relates to fitness to plead has also received judicial attention. The case of Kaplolwa s/o Tarino -vs- R10 as discussed below is germane as it gives insight into the procedural law of fitness to plead and at the same time clothes it with substantive legal considerations. In this case the appellant was charged with murder before the Supreme Court of Kenya. When arraigned, the question of his fitness to plead was considered and medical evidence was called showing that due to senility and hardening of the arteries of the brain, the appellant at times appeared to be wanting, but would be capable of understanding the nature of the charge in his more lucid moments. The trial judge found that the appellant was fit to plead and subsequently in his judgment, held that a cautionary statement made by the appellant was given months before the trial confirmed the finding that the accused was fit to plead had been correct. The trial judge convicted the accused of murder and sentenced him to death. On appeal, the question of the appellant's fitness to plead was considered. The Court of Appeal at Nairobi presided over by Sir Kenneth O'Connor, Briggs and Forbes JA made the following ruling:
i)
that since the cautionary statement relied on by the trial judge was made more than five months before the trial, it afforded little, if any, evidence of the appellant's mental condition at the time of the trial;
9 10
Ibid at p.2 para (1957) EA 553. Page 241 of 382
ii)
that the point for determination for the trial judge was not whether the appellant was sufficiently sane to appreciate the charge, but whether at the trial he was of unsound mind and consequently incapable of making his defence; and
iii)
that since there was nothing in the evidence to show that the appellant at the time of his trial was enjoying one of his more lucid moments, and since the trial judge did not consider whether he was capable of making his defence the conviction must be set aside.
The above case is important for two main reasons. First, it shows that it matters not that the accused person was sane when he committed the offence if the contentious issue is fitness to plead. What is important is his mental state at the time he is on trial. Insanity at the time of committing the offence is of little significance in answering questions of fitness to plead. The second point that can be drawn from the case is that the sanity required for one to be considered fit to plead goes further than that of merely being able to understand the charge. The sanity must go beyond this and be sufficient to enable him to make his defence. If he is of such insanity as to render him incapable of making his defence, a conviction based on such a trial must be quashed on appeal.
Another case in which the procedural requirements as relates to insanity have been considered is R -vs- Anyelwisye Undule11. The Magistrate, in this case, after the hearing of medical evidence concluded that the accused was fit to stand trial. At the end of the prosecution case the Magistrate decided that the
11
(1965) E.A. 451. Page 242 of 382
accused was unfit to make his defence because of unsoundness of mind. He found that the accused committed the offence as charged but that he was guilty but insane. He ordered the case to be reported to the President and remanded the accused in custody as a criminal lunatic. On revision, it was held inter-alia that the Magistrate having found that the accused was unfit to make his defence after pleading due to mental disturbance should have postponed further proceedings. This particular aspect may be taken to indicate the Kenyan position; which position is given by section 162 of the Criminal Procedure Code.
Other jurisdictions have also considered the question of fitness to plead when the issue of soundness of mind is not agreed upon. Sometimes, the question of fitness to plead may be raised and determined as a preliminary issue. The English case of R -vs- Beynon12 focuses on the issue. B was charged on an indictment for murder. On his arraignment and before he pleaded, counsel for the Crown applied that the issue of fitness to plead to trial be dealt with as a preliminary issue. Counsel for B objected to the empanelling of a jury to try that issue submitting that unless the law compelled the court to deal with the issue of insanity, natural justice required that the general issue should be tried first. It was held (NOT following R –v- Roberts13 ) that the law had always been that an insane person could not be tried and if the court is aware of the fact that there was a preliminary issue whether the person charged was insane, so that he was unfit to be tried, it was the duty of the court to see that the issue was tried before the general issue even though no application was made by the prosecution or defence.
12 13
(1957) 2 WLR 956. (1954) Crim. Law Reports 20. The Case of R v Robert had dealt with the issue of earlier albeit differently. Page 243 of 382
Another case which ought to be considered is R –vs- Podola.14 P was convicted of capital murder. At the trial the preliminary issue was raised as to Podola's fitness to plead, and on this issue P relied solely on an hysterical amnesia preventing him from remembering events during the whole of the material period. The trial of the preliminary issue was dealt with at two stages. In the first stage the jury was required to answer the specific question whether P was then and at the material times suffering from a genuine loss of memory; the jury found that he was not. In the second stage the jury was required to find whether P was insane so that he could not be tried and the jury found by direction, that he was fit to stand his trial. He was then tried and convicted of murder. The case was referred to the Court of Criminal Appeal on the question whether the onus of proof of unfitness to plead was on the defence or the prosecution. The court started by saying that an appellate court had jurisdiction to hear an appeal from a convicted person against his conviction on the ground that the hearing of the prelimilitary issue was open to objection for error of law so that he should never have been tried upon the substantive charge at all. The Court of Criminal Appeal further held that in all cases where the preliminary issue as to the accused's insanity was raised the jury should be directed to find whether upon the whole of the evidence they were satisfied that he was insane so that he could not be tried upon the indictment. Where the issue was raised by the defence, it was for the defence to satisfy the jury of the accused's insanity, but the onus of proof, as in other cases where the onus of proof was on the defence would be discharged if the jury were satisfied on the balance of probabilities. These principles echoes those in the known cases of R -vs-Juston15 and the Rivett’s.16 The court went further to note that unfitness to plead will include those persons, although not insane in the strict sense are by reason of some physical or mental
14 15 16
(1959)3 All. ER 418. (1945) 6Cox385. (1950) 34 Cr. App. Rep. 87. Page 244 of 382
condition, not able to follow the proceedings at the trial and so cannot make a proper defence in those proceedings. The court approved of the test to be applied as propounded by case of R –vs- Pritchard17, that the jury should be directed to find whether the prisoner was of sufficient intellect to comprehend the course of proceedings on the trial so as to make a proper defence.
The issue of fitness to plead may be raised by either the defence, the prosecution or by the court itself. The principle that "he who asserts must prove" appears to underlie the court's decision in the above (Podola) case. If the prosecution asserts that the accused is unfit to plead, the onus is on them. In such a case, would they have to satisfy the strict criminal law standard of proving beyond reasonable doubt or would it be enough for them (as it is for the prisoner where, he asserts his unfitness) to prove their case on a balance of probabilities? At the trial, Edmund Davies J. thought that the strict criminal standard was appropriate and it is respectfully submitted here that this is correct. If the issue has been raised by the court, the onus falls on the prosecution.
D.
REFUSAL TO PLEAD INSANITY
Sometimes the defendant may refuse to raise and/or plead the defence of insanity. Although the Criminal Procedure Code is not clear on what procedure to be adopted in such situations, one may propose to observe how other jurisdictions have dealt with such an issue. In R -vs- Hollingsworth,18 the issue was at hand. H pleaded guilty of threatening to murder and demanding money with menaces and was sentenced to five years and three years imprisonment for each offence. H was 41 years of age and previously of good character. Since 1952, he had spent a considerable time in a mental hospital as a certified mental 17 18
(1836) 7 C&P 303. Court of Criminal Appeal (1956). Page 245 of 382
patient. He had absconded from the hospital when he committed the offences charged. Upon conviction he appealed to the Court of Criminal Appeal against the sentence. Lord Goddard -J, Ormerod and Donovan JJ held while dismissing the appeal, that as H refused to enter a plea of insanity, the only course was to send him to prison for a considerable period. It is noteworthy that in criminal law a fine line has to be drawn between the right to freedom and liberty of the individual and the right to the protection of the public. The above case raises the same point as R -vs- Barnett19, namely, what is to be done when there is evidence pointing to insanity of the defendant who refuses to plead insanity? How is the protection of other people to be ensured? It was held that imprisonment would most ably cater for that.
E. INSANITY AND THE PROSECUTION
One of the most pertinent questions asked on this subject is whether the prosecution should be allowed to raise the issue of insanity; when the insanity is not to prove unfitness to plead, but as a defence i.e. the accused was insane at the time of the commission of the act constituting the offence charged. It has been held as early as 1958 in the Bastian Case20 that the prosecution may allege insanity. Samuels H.A. in his article21 supported this position and submitted that the proposition that the prosecution may not allege the insanity of the accused was no longer the law. However, this was prior to the Price Case22. In this case, Lawton J ruled that it was the law. Although the prosecution may not be precluded in certain cases from leading evidence which may have the effect of tending to establish insanity, the main submission is that 19 20 21 22
(1956) Cr. L. Rev. 560. (As reported therein). (1958)1 W.L.R. 413; (1958)1 All E.R 568. See Samuel H.A: (1960) Criminal Law Review at 453. (1962) 3 W. L. R. 1308; (1962)3 All E.R 957 Page 246 of 382
as the law stands at the moment, Price is right and Bastian is wrong. The relevant authorities for the above contention being Oliver Smith23 and Casey24. In Oliver Smith, the appellant had been convicted of murder. He had confessed to the killing of a woman with whom he had been living with. At his trial, he set up a defence of insanity which he sought to establish by cross-examination of the prosecution witness and by direct evidence of his family and personal history. At the close of the defence case, the prosecution called the prison doctor to rebut the suggestion of insanity. His complaint on appeal, was a misdirection as to his defence. The appeal was dismissed. After the dismissal, counsel for the crown with regard to tendering evidence of a prisoner's sanity. The Lord Chief justice who presided over the court said:
"The question came up seven or eight years ago when a practice arose of the crown calling prison doctors to prove insanity. All the judges met and resolved that it was not proper for the crown to call evidence of insanity, but that any evidence in the possession of the Crown should be placed at the disposal of the prisoner's counsel to be used by him if he thought fit".
The Casey Case followed Oliver Smith and gave an approval of the above passage by the Lord Chief Justice. However, in Casey Case the court mentioned that the rule is that it is for the defence to call witnesses in relation to the issue of insanity.
However, the issue of whether or not the prosecution is competent to raise the issue of insanity is not settled and various writers and judicial contentions
23 24
(1910) Cr. App. Rep. 19 (1947) 32 Cr. App. Rep. 91 Page 247 of 382
indicate a disagreement. In the Kemp Case25 no objection was taken to the prosecution leading evidence as to the mental condition of the accused. The defence itself led medical evidence which agreed with that of the prosecution that the accused was suffering from a mental illness. There was finding by the court of insanity within the McNaughten Rule26. It can however be submitted that Kemp is not decisive as to the contention that the prosecution can raise the issue of insanity. It has been suggested that the interpretation to be placed on the judgment of Devlin in this case is to permit the Crown to raise the issue of insanity27.
In the Bastian Case
28
, B was charged with the murder of his two sons and
pleaded diminished responsibility. If his plea was successful, then he would not be liable to be convicted of murder. Donovan -J- ruled that as the defence had put in issue the state of the prisoner's mind by raising a defence of diminished responsibility, and, as the prosecution believed that they had evidence that he was insane at the time, the court could not stop the prosecution from crossexamining the defence witnesses and calling evidence to invite the jury to return a verdict of guilty but insane. In Nott29, the defence was also of insanity and the prosecution was given leave by Elwes -J-, after the defence case had closed, to call rebutting evidence to show that the accused was not insane although such evidence might have tended to establish that he was suffering from diminished responsibility. Similar views regarding the subject were expressed by Lord Denning in Bratty
25 26 27 28 29
(1957) 1QB 399. See below for discussion of McNaghten Rule. See Edwards J.H, 21 M.L.R 375 in note 50 at P.386. (1958) 1 W.L.R. 413. (1959) Crim L.R. 365. Page 248 of 382
–vs- Attorney General for Northern Ireland30. He thought that Devlin was quite right in putting the question of insanity before the jury and even though it had not been raised by the defence. He added that:
"... it is open to the prosecution to show what his true state of mind was. The old notion that only the defence can raise a defence of insanity is now gone. The prosecution are entitled to raise it and it is their duty to do so rather than allow a dangerous person to be at large… so it has been held in England that where a man sets up a defence of diminished responsibility, the prosecution are entitled to show that he was insane".
Thus in the Bratty Case, the Lord Chancellor observed that:
"One must not lose sight of the overriding principle laid down by the House in Woolmington’s case... that it is for the prosecution to prove every element of the offence charged. One of the elements is the accused's state of mind.
Normally the presumption of mental capacity is sufficient to prove that he acted consciously and voluntarily and the prosecution need go no further.”31
It is submitted that all what happens in a criminal trial where the defence raises automatism or diminished responsibility is that the presumption of mental capacity is displaced and the Crown becomes entitled to lead evidence as to the 30 31
(1961) 3 WLR 965 See 46 Cr. App Ref I at p.14 Page 249 of 382
condition of the prisoner's mind. This is borne out by the decision in R –vsSmith.32
However, recent judicial pronouncements do not favour the notion that the prosecution may raise the issue of insanity even if it has not been alleged by five defence. In Dixon33 and Morris34 which were decided before Bratty, Jones -J- refused to put insanity to the jury unless it was raised by the defence. In R vs- Duke35 the Lord CJ took the view that the right of the prosecution to raise the issue of insanity was still open to doubt and referred to the conflict of practice among judges. In Price36, which was decided later, Lawton -J- considered the comments of Lord Denning in Bratty as well as those of the Lord CJ in Duke and concluded as Jones -J- had in Dixon and Morri that the issue of insanity can only he put to the jury if it has been raised by the defence. In Mitchell37, Elwes -J- followed the decision in Price. It can therefore be argued that Lord Denning’s view does not represent the law as it now stands. Lawton -J- infact quipped:
"Prosecutors prosecute... A trial in England is not an inquisition... If insanity is a defence, it seems to me [that] it is for the defendant and his advisors to put it forward38".
The prosecutor's duty is to lay before the court the whole of the facts which compose his case and to do so fairly having regard to the fact the he is a
32 33 34 35 36 37 38
8 Cr. App, R 72 at 75. (1961)3 All E.R 460; (1961) 1 W.L.R. 337. (1961)2 W.L.R. 986 (1961)3 All E.R 737; (1961)3 W.L.R 1194. (1962)3 All E.R 957. Noted at the end of the Crim. App. Report of Price, 47 Cr. App. R. 21 at p.26. (1962)3 W.L.R. 1308atP.1312. Page 250 of 382
Minister of Justice.39. However,
"there's no rule or principle of practice.... that the prosecution should discharge both functions of prosecution and defence.”40
To allow the prosecution to raise the issue of insanity would be inconsistent with certain rules of practice established in a criminal trial. For instance, it is the practice for the prosecution to open its case in the sense of stating to the court the facts he intends to prove. This practice is to enable the court to know in advance the facts if proved on which the prosecution rely on for a conviction. To allow the prosecution to open a case of insanity would be to assimilate, in this respect, his functions with those of defence counsel, that is to say, ‘TO OPEN A CASE FOR AN ACQUITTAL!’
Insanity is a defence and it seems incongruous to suggest that a prosecutor can raise a defence. Thus the prosecution can only lead evidence which is relevant to the charge. One of the elements of every charge, as Lord Kilmuir pointed out in Bratty is the mental CAPACITY of the accused. To lead evidence of mental INCAPACITY, it is submitted, would therefore be inadmissible on the ground of irrelevance. Therefore, "evidence as to the condition of the prisoner's mind should be called, if required, in reply and not as part of the case for the Crown.”41
The rule as discussed herein has been the subject of some criticism. First is that to disallow the prosecution the right to raise the issue of insanity would in some
39 40 41
See R -vs- Puddick 4 F & F 498 at P.499 R -vs- Bryant & Dickson, 31 Cr. App. Rep 146 As per Lord Alverston C-J delivering the judgment of the Criminal Court of Appeal in Smith, 8 Cr. App. R 72 at 75. Page 251 of 382
cases be shutting out the truth because it is detrimental to the accused 42. This may be true that the present position arises out of the character and role of the prosecutor in a criminal trial. His duty is not to try to shut out any legal evidence which would be important to the interests of the accused person but it is not for him to decide what the interests of the accused are. It may not be in his interests to raise the issue of insanity. "Indeed, in many cases, it is not, for the end results of a successful defence of insanity is detention in Broadmoor.43
F.
THE POSITION IN KENYA
The Criminal Procedure Code is not categorical on this issue. There have been no reported decisions touching the issue fully. However, what is clear is that it is still as unsettled as in other jurisdictions. The case of Mandi s/o Ngoda44 focuses on the mootness. In this case the accused was charged with murder and at the opening of the trial his counsel intimated that the accused was prepared to plead guilty to a charge of manslaughter. The prosecution, however, declined to accept this plea on the ground that it proposed to establish that the accused was insane when the alleged offence was committed. Murphy -J- held inter-alia that it was questionable whether, even if it is permissible for the prosecution to raise the issue of insanity in the course of a trial, it was proper for the case to be presented at the outset as one in which the only verdict asked for was that of guilty but insane. He further observed that the court was entitled to treat the issue of insanity as an alternative defence and to invite the assessors to consider it on balance of probabilities. The judge revisited the English cases of Price and Bratty and drew their attention to the fact the matter is not finally settled whether the prosecution can lead evidence of insanity if it is not in reply to such other allegations put up by the defence as would warrant the move to be taken 42 43
44
See Samuels, (1960) Crim L. Rev at 460. See Berthan Macauley, Insanity and the Prosecution, (1963) Criminal Law Revie'w, 817 at P.828. 0963)EA153. Page 252 of 382
to rebutt it.
The issue therefore is still in dire need of authoritative judicial re-statement. There is no doubt that this issue is torn apart between those who assert that the prosecution may allege insanity and their opposers who see this as a usurpation of the defence. This disparity is rested on two opposing principles which are best illustrated by considering the case Durham -vs- US45. In this American case, the accused was convicted of house breaking. The only defence asserted at the trial was that Durham was of unsound mind at the time of the alleged offence. One of the grounds of warranting the conviction to be reversed was that the rules governing the burden of proof on the defence of insanity were not properly applied by the trial court. The court's argument was that courts commonly recognize a prima facie presumption of the legal sanity of the accused. This has the effect of making it unnecessary for the prosecution to establish the sanity of the accused. It was argued that the defendant himself carries the burden of coming forward with evidence on the issue of legal insanity. Courts however differ on the ultimate burden of proof or risk of nonpersuasion. It devolves in accordance with one of the two general rules. One rule allocates the ultimate burden of proof to the prosecution; the other rule assigns this burden to the defence. The strength of the presumption of sanity varies depending upon which of the above rules is followed and also varies according to the general view of the presumptions adhered to by a particular jurisdiction. Most courts for example in the United States, treat insanity as an affirmative defence with the risk of non-persuasion being on the defendant. English courts follow this rule although there is some indication that if the issue of insanity goes to mens rea, the prosecution must then prove sanity beyond a
45
214 F 2d 862; 45 A.L.R 2d 1430 (Annotated) 1954 . Page 253 of 382
reasonable doubt as an integral element of its case46.
Much said, one thing which is clear is that if the prosecution is in control of some material evidence, it should not be precluded from tendering it for purposes of just administration of the law. The case of R -vs- Dickie47 sums up the recommendation that one would give. This case establishes various aspects of insanity. It is noted that in certain exceptional circumstances, the judge can of his own volition raise an issue of insanity and leave the issue to the jury to decide. It also establishes that the prosecution has a positive duty to prove, if it can, all the allegations which it makes on the indictment. It further establishes that the prosecution has the power, if the issue of insanity is raised by the defence, to rebutt by its own evidence the attempt by the defence to establish insanity. It further has the obligation, if it has the evidence in its possession of insanity which will assist the defence to establish that the defendant was in that condition when the crime was committed, to make that evidence available to the defence in good time so that the defence may in its discretion make proper use of it.48
G.
INSANITY AS A DEFENCE: THE VERDICT OF 'GUILTY BUT INSANE' –vs- NOT GUILTY ON ACCOUNT OF INSANITY
In Kenya, like many other areas, a person who commits an offence but was insane at the time receives a special verdict of 'guilty but insane'. The Criminal Procedure Code is clear on the issue and a similar provision has been judicially
46
47 48
SeeKadish H.S., Criminal Law and its Processes (Toronto, Little Brown & Co. Second Edition, 1969) Pages 56-58. (1984) 3 All E.R. 173 This is the author’s recommendation. Page 254 of 382
considered in the case of R -vs- Magata s/o Kachehakana49. The accused was charged with killing his father. It was proved and admitted that the accused killed his father because he believed that he (his father) was Satan and had bewitched him. There was no apparent motive for the killing other than the belief of the accused that his father had bewitched him. It was held that when the accused killed his father he did not know what he was doing and that he did not know that he ought not to have done the act. The accused was therefore guilty of the act charged but insane at the time. A special finding of 'guilty but insane' was given.
H.
INSANITY: EVOLUTION
The defence of insanity has its roots in the 15th century and the first recognised case in which it was pleaded was Snow –vs- Beverly50, where it was held that the act of a mad man should not be imputed to him because he has no capacity to form the necessary menses. In that era, a successful plea of insanity was followed by an absolute acquittal. However, in the early 19th Century various attempts to assassinate the Monarch were made and in each case insanity was pleaded. Henceforth, a defence of insanity was closely scrutinized, emphasis being laid on the element of mensrea or guilty mind. Those who were found not guilty by reason of insanity were henceforth to be confined at the Monarch's pleasure. The main argument in such trials centered on the defect of reason and the knowledge of right and wrong. It seems from the earlier cases that once a person was certified insane, the guilty concept had no application to him. However, the 'guilty but insane' verdict was later introduced.
As understood today, the insanity defence refers to that branch of the concept of insanity which defines the extent to which men accused of crime may be 49 50
(1957)EA330. 4 Co Rep. 125 b; Ib ruling cases 708 (1604). Page 255 of 382
relieved of criminal responsibility by virtue of mental disease. The defence is derived from the rules of the judges formulated as a result of the McNaughten51 acquittal on grounds of insanity after the murder of Sir Robert Peel's Secretary in 1843. The acquittal of McNaughten on grounds of insanity raised dissatisfaction among the ruling circles in Britain. A review of the defence which was then erratic and ambiguous was requested. The rules as the opinions of the judges came to be known, were adopted in judicial practice and codified in other jurisdictions. They form the law on insanity. In Kenya, like in many other jurisdictions, the defence is cast in the language of the McNaughten rule which asks in substance, whether the defendant knew what he was doing when he committed the offence. These formulations have been received in the criminal law as part of a tradition which makes the notion of 'blame' central to criminal responsibility and which tries to define a class of persons who fall outside the boundaries of blame.
I.
GUILTY BUT INSANE OR NOT GUILTY ON ACCOUNT OF INSANITY?
The notion of blame is traditionally central in criminal liability. Although the tradition is an old one and is shared by most legal systems, it has not brought with it a consistently clear idea of how it should be applied. In its beginning, for example, it meant little more than the search for the person who had caused the injury and hardly at all did it concern itself with the person's state of mind. As man moved closer to the centre of the historical stage, the concept of purpose became the touchstone of criminal liability.
Only the evil man, the one with intentionto cause harm, came into consideration. It became necessary to account for those who could not think like other men and who could therefore not be blamed. These are the insane. Infact, 51
10 Clark and Finelly, 200 (1843) Page 256 of 382
in the 17th Century Coke included among the insane;
"... the idiot, the lunatic, and the person who by sickness, grief or other accident, wholly loseth his memory and understanding; and the lunatique that hath sometime his understanding and sometime not...52"
The law assumes for most situations that all men have the necessary qualities to make expected responses unless it is demonstrated otherwise. This assumption is reflected by the legal presumption that all men are sane53 and that they intended the natural and probable consequences of their acts. If therefore an individual's acts mark him as a criminal, it is ordinarily inferred that he intended to commit crime or was insufficiently attentive to the objective circumstances and therefore either reckless or grossly negligent. These presumptions may endow the defendant with characteristics which are not his at all.
J. INSANITY AS ABSENCE OF MENS-REA The heart of the insanity plea rests in mental disease (or derangement) such that the person is not blamable. To say that a person committed a certain act but was suffering from a mental disease such that he cannot be blamed is very much like saying in more specifically legal terms that his mental disease precluded mensrea, the 'guilty mind’54. In the United States of America, a person who commits or omits to do an act which would have otherwise constituted an offence but for his insanity is innocent on account of insanity. The 'Free-Will' theory as applied to criminal responsibility presumes that a man is endowed with free will if he is able to direct his actions. An insane person suffers from impairment of the 52 53 54
Goldstein A. S. The Insanity Defence, London, Yale University Press, 1967 at P. 10.. Section 11 Cap 63. The Penal Code. Fingarette H; The meaning of Criminal Insanity (Los Angeles, University of California Press.) 1972 Chapter Three. Page 257 of 382
exercise of free will and objective reasoning. It is therefore believed that he is incapable of criminal intent. Pursuant to this theory, the Alabama Supreme Court in 1818 came up with the "irresistible impulse test". Thus if one is not acting out of his free-will by reason of insanity, the defence goes a long way into negating mens-rea. Another formulation was the Durham Rules, a judicial pronouncement in the case of Durham -vs- U.S.55 The Durham Test, as it has come to be known states:
"... an accused person is not criminally responsible if his unlawful act was the product of mental disease or mental defect".
However, this rule was criticised by lawyers and judges for, among other reasons, its generality. The phrase "product of” was too general and the test died a natural death. A panel of discussion of the U.S Annual Judicial Conference 56 discussed at length the defence of insanity. Joseph Weintraub CJ (N.Y Supreme Court) argued that insanity should have nothing to do with the adjudication of guilt but rather should bear upon the disposition of the offender after conviction. However, Professor Herbert Wechsler disagreed with the above view that insanity has no relevance to guilt. He gave an example that if an elderly man is taken to hospital in an advanced arteriosclerotic state, and while in hospital experiences a tantrum, a delusion, a delusional phase, and knocks over a lamp with the result that the attendant is killed, it would be wrong to convict the man of homicide, and his condition regarded as relevant only on the question of
55 56
214 F2d 862; 45 A.L.R 2d 1430 (Annotated), 1954. Second Source of the proceedings available from: Kadish M.S., 'Criminal Law and its processes (Toronto, Little Brown 81 Co, 2nd Ed, 1969)at pages 584-586. Page 258 of 382
what to do with him. He noted that that was why the criterion of criminal responsibility as affected by disease or a defect parallels the traditional mensrea rules requiring a determination of blameworthiness in the ordinary moral sense, in the sense of working morality, not in the sense of man's responsibility for his nature or his nurture but in the sense that the afflictive sanctions of the law will not be visited on anyone unless he does something which is the product of a choice; unless in the traditional jurisprudential terms he performs a judicial act. This argument is sound. It requires that those not sane be treated as incapable of committing any offence which requires mens-rea because the state of their mental faculty does not favour them with the capability of forming a criminal intent. Understood in context, what the above discussion points to is that first, the element of criminal intent, mens-rea, is central when considering the issue of criminal responsibility. Secondly, it is clear that the said intent cannot be formed by one who cannot control his mind, the insane. If this analogy is correct, and it is, then an insane person has no mens-rea, or is not capable of forming one. Further, if this assertion is true, then by necessary implication, an insane person cannot be guilty of an offence which requires mens-rea. It is therefore submitted that the verdict of 'guilty but insane' seriously requires a consideration with a view to amending it to adopt the American style of 'not guilty on account of insanity'. Kenya has styled her verdict to the tune of the British Act57, which Act requires that if the insane defendant is found to have committed the offence, the finding be that of guilty but insane. This is much like saying that a person who is not capable of being guilty is guilty. This is a clear case for reform.
The verdict as we have seen in many other jurisdictions is NOT GUILTY BY
57
See Criminal Procedure (Lunatics) Act: Section 2 thereof, Page 259 of 382
REASON OF INSANITY. It is quite clear why this is so keeping in mind the essential elements of an offence. However, in Kenya the verdict still remains GUILTY BUT INSANE. It is truism that Kenya, much like many other African countries, is still melting from the ice of colonialism and in the process trying to reform her laws to conform to her social and economic conditions. The law regarding insanity needs reform not only to conform to Kenya's socio-economic realities, but also to echo the universally accepted norms in so far as criminal responsibility is concerned.
K. PROCEDURE AFTER FINDING OF GUILTY AND SANITY
The procedure to be followed once a finding of 'guilty but insane' has been passed is as outlined in the Criminal Procedure Code under section 166. The court is to make a report of the order to the President and in the meanwhile the accused is kept in safe custody. The President will then order where such person is to be detained normally in a mental hospital, prison or any other place the President deems fit. The officer in-charge of the place where such person is detained shall make a report in writing to the Minister for consideration by the President who may order that the person be discharged or otherwise dealt with58. At other times a person may not be insane but he is altogether not able to understand the proceedings. If this happens in respect of cases that are triable by a subordinate court, the court is to proceed and hear the evidence. If at the close of the prosecution's case the court finds that there is no case to answer as provided for under Criminal Procedure Code (section 210), the accused person should be discharged. On the other hand if a prima facie case has been made out against him the court should order the accused to be detained at President's
58
Section 166(S) Criminal Procedure Code (Cap 75). Page 260 of 382
Pleasure. The subordinate court's order is however not final because the High Court must confirm every such order59. If the inability to understand arises in a committal proceeding, he is to be committed to the High Court for trial if there is enough evidence to warrant a committal. The subordinate court may then either remand or grant him bail depending on the circumstances of each case. The High Court upon his being committed shall then try him and if at the end of the trial no evidence is led as would justify a conviction, the accused should be acquitted and discharged otherwise he is detained at President's pleasure 60. In all cases where such orders of detention at President's pleasure are made, the said orders must bear the signature of the presiding judge together with notes of evidence taken at the trial61.
L. AN EVALUATION OF THE PROCEDURE Section 166 lays down the procedure to be followed where a person is found to be insane. It provides that such a person will be remanded in custody and report made to the President who will detain him at a place he considers most suitable. The court which has had the opportunity of seeing, hearing and assessing the person has no discretion as regards confinement. The matter is taken out of its hands. In some jurisdictions in the United States62, commitment to a mental hospital is subject to an exercise of discretion by the courts. It is upon the court to determine whether the insanity is of such a nature as to warrant confinement. This is done in what is called a civil commitment proceeding/hearing. In this way, anybody who was insane at the time of committing the act but is no longer insane need not be committed. Those whose insanity arises from 'intoxication' benefit from this process.
59 60 61
62
Section 167(1) (a) Criminal procedure Code (Cap 75). Section 167(1) (b) (ii) Criminal procedure Code (Cap 75). Section 167(4) Criminal procedure Code (Cap 75).
States of Arkansas, Memphis, Connecticut and Carolina. Page 261 of 382
The issue of compulsory confinement is a controversial one bearing in mind the notion of personal liberty. Various reasons have been advanced as to its necessity. When a crime is committed, especially murder, there is public outcry against it and confinement becomes vital to allow public outcry to dissipate 63. If the defendant is found unable to conform, it is predictable that he might not conform in the future and therefore his condition needs treatment. Further, they should be detained for some time for their own safety and that of the society. It is for such reasons that the Criminal Procedure Code provides for confinement. Various considerations arise with regard to confinement. In Kenya the proof required of the accused in insanity cases (i.e. to prove insanity) is merely to demonstrate on a balance of probabilities the probability of that which he asserts. This reveals the fact that at the end of the day, it is only a reasonable doubt which remains in the court's mind as to the insanity, yet the commitment to a mental hospital is almost inevitable. Fallacious enough, there seems to be a presumption that although the accused's defence is that he was insane when he committed the offence, the insanity is continuous. There is a contradiction in terms because there are statutory provisions as to the procedure where one pleads insanity at the trial. Therefore, the fact that the trial even took place at all undermines the presumption of continuity of the insanity. Indeed, the definition, provided by the Penal Code (Cap 63) is germane. Section 12 provides, "A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is through any disease affecting his mind incapable of understanding what he is doing or of knowing that he ought not to do the act or make the omission...".
Turning to the confinement itself various aspects requiring consideration have 63
Goldstein, "The Insanity Defence", London, Yale University Press, 1967 at P.44. Page 262 of 382
arisen. Whereas one agrees that confinement is necessary to a certain extent various legal questions inevitably arise.
The Constitution of Kenya at section 72(1) (h) provides that a person may be confined for reason of unsoundness of mind, addiction to drug or alcohol. It does not provide otherwise and this may warrant the implication of the three minimal conditions above. If the first condition is closely evaluated, it can be seen that it is hardly observed as medical evidence in insanity cases is given no priorities and moreover it is not binding upon the court. Therefore a verdict of insanity is not evidence of any medical certification. The second condition suffers an even greater blow in that confinement is compulsory here (in Kenya). In jurisdictions where it is discretionary the matter is given some consideration during the civil commitment hearing. The length of the confinement is significant to the issue of liberty. In Kenya, the Criminal Procedure Code provides for the periodical reports to be made once one has been confined in a mental hospital by order as above. The first report in respect of the history, condition and circumstances of the person so detained is to be made three years after such an order64 has been made, and thereafter at a two year interval. The three year period is too long. Considering that confinement is also extended to those whose insanity arises out of drunkenness, the period is unrealistically long owing to the fact that one cannot obtain a release prior to the expiration of three years even though he may be perfectly sane.
This aspect of confinement seems to have a punitive edge and not just treatment. The persons so confined are regarded as criminals. This is given strength by the fact that those who are confined after court orders are confined together with other mental patients who have not been through the court
64
Section 166(2) Criminal Procedure Code (Cap 75). Page 263 of 382
process. Both classes are supposedly mental patients. However, their treatment is remarkably different. For example the Mental Treatment Act section 3065 thereof provides that a person in charge of mental hospital may by order in writing, order the discharge of any person detained in a mental hospital provided that an order will not be made in respect of persons detained under the Criminal Procedure Code. This means that the "acquittees" of the court are still criminals and treated as such. It is finally submitted that if a person pleads insanity and the defence is well established, he should be acquitted. The question of detention in a mental institution should only be for the purposes of treatment, but not holding him there as a criminal even after his mental condition has been demonstrably found to be no longer wanting.
65
Cap.248 Laws of Kenya. Page 264 of 382
CHAPTER FOURTEEN
JUDGEMENT A. INTRODUCTION Judgment means the adjudication by the court that the defendant is guilty or not guilty. A judgment merely stating the penalty would not be valid 1. It must contain adjudication by the court that the defendant is guilty or not guilty. According to a writer on judgments’2, a judgment of conviction may be said to consist of two parts:
i)
The facts judicially ascertained together with the manner of ascertaining them, entered on record,
ii)
The recorded declaration of the court pronouncing the legal consequences of the facts thus judicially ascertained.
Both these parts are equally necessary in the entry of a judgment.
B. DELIVERY The mode of delivering judgment is provided at Section 168 of the Criminal Procedure Code. It provides that the judgment is to be pronounced in open court. However, other jurisdictions with similar statutory provisions have held as valid a judgment and sentence entered by the court in chambers during a recess in the presence of court officials3. Similarly a sentence rendered in a room other than the courtroom because of an emergency was held valid in Reed -vs- State4.
1 2 3 4
Ellis-vs-State (1930) A.L.R 783. Freemen, "Judgments" (5th Ed. 1925) 99 O'Neal -vs- State 35 Ga. App. 665 (1926).147 Ind. 41 (1896). Page 265 of 382
The Criminal Procedure Code further requires that the judgment be explained and that the pronouncement be made either immediately after determination of the trial or at some subsequent time. However, notice must be given to the parties and their advocates if the judgment is to be delivered at some subsequent time. If the defence or prosecution requests that the judgment be read out in whole, the Magistrate is required to comply therewith5. If the accused person is in custody, it is required that he be brought before the court. In the event that he is not in custody, he is to attend to hear judgment delivered. However, this may not be necessary where his personal attendance has been dispensed with during the trial. To this is added a further qualification for his attendance not to be required that the sentence must be one of fine only or he is acquitted. It should not be lost to sight that a judgment is not invalidated by reason only that a party or his advocate were absent either on the day or place notified for delivery thereof. An omission to serve or defect in serving on the parties or their advocates is not fatal to the judgment6. This must, however, not be read in isolation. One must have in mind the spirit of Section 382 of the Criminal Procedure Code. This section provides that a sentence, order or other finding passed by a court of competent jurisdiction shall not be altered on appeal on account of error, omission or irregularity in the judgment unless the error or omission has occasioned a failure of justice. In determining whether such an anomaly has occasioned injustice the court is required to consider whether the objection could and should have been raised at an earlier state in the proceedings7. In delivering judgment and sentence, the Magistrate or presiding Judge must be clear and to the point. This will ensure that ambiguity is not created. In cases of
5 6 7
Proviso to section 168(1) Criminal Procedure Code (Cap 75). Section 168(3) Criminal Procedure Code (Cap 75). Proviso to section 382 Criminal Procedure Code (Cap.75). Page 266 of 382
an ambiguity, Sir Udo Udoma C.J in Eneriko Lutalo –vs- R8 considered the consequences. The facts here were that the appellants were charged jointly on two counts of robbery with violence and were found guilty and convicted. They were sentenced to five years imprisonment each with fourteen strokes of the cane with an approved instrument on each count. The incidents in respect of which they were charged took place at the same time but as two persons were attacked, two separate counts were brought. Both appellants appealed against the conviction and sentence. Their appeals against conviction were dismissed as without merit. As to sentence, counsel for the respondent submitted that it was ambiguous and bad in law and the case should be remitted for re-sentencing. Sir Udo held that the sentence was neither bad 'ab initio' nor incurable but it was ambiguous and the High Court had ample power to clarify it on looking at the proceedings to ascertain the Magistrate's intention. Sir Udo was of the opinion that if the sentence passed on the appellants was legal, then the ambiguity according to him was simply a question of construction. He noted in his ruling that;
Although the order is capable of a number of meanings, in an attempt to make sense out of it, it is the duty of this court [High Court] to give the best possible construction to the order9.
This was not the first time that the question of ambiguity in passing sentence was considered in East Africa. In the English case of Re Castings10 the Divisional court established the principle that;
8 9 10
(1966)EA328 Ibid at 330 para. G. (1958)42 Cr. App. Rep. 132. Page 267 of 382
Provided that the court of Criminal Appeal can clearly see what was the intention of the judge in passing sentence, the question of exact words used is immaterial.
However, this must not be taken as ousting the spirit of the law that exactitude and clarity of a judgment do exemplify the normative basis of law.
C.
FORM AND CONTENT
In most legal aspects, the form in which the particular issue is presented is given a lot of emphasis. Thus Section 169 of the Criminal Procedure Code provides inter alia that a judgment must be written by or under the direction of the presiding officer of the court. It must not only be written in the language of court but it must also include the requirements stated therein. These are that the judgment must contain the point or points for determination, the decision thereon and the reasons for that decision. With this duly done, the presiding officer is required to sign it in open court at the time of pronouncing it. If the judgment is one of conviction, it shall specify the offence of which, and the section, of the Penal Code or other law under which the accused is sentenced11. Section 169(3) provides for acquittal cases in which case the judgment shall state the offence of which the accused is acquitted and shall direct that he be set at liberty. The accused person is allowed to ask for a copy of the judgment and may further ask for a translation in his own language, if practicable, and is to be given the copy without charge by virtue of Section 179 of the Criminal Procedure Code. The point or points for determination must cover the essential ingredients of the offence charged. Failure to comply with these requirements is an irregularity which will entitle
11
Section 169(2) Criminal Procedure Code (Cap.75). Page 268 of 382
and oblige the Court of Appeal to examine the facts of the case with a view to determining whether there has been a failure at justice within the meaning of section 382 of the Criminal Procedure Code. Findings of fact should be based on the credibility of witnesses especially in cases where the witnesses are accomplices. A trial court must also direct itself on the nature of the evidence adduced. In the case of evidence of children of tender age the court must be mindful that their evidence should be corroborated before a conviction can be had except where in a case involving a sexual offence, the only evidence is that if a child of tender years who is the alleged victim of the offence (the case shall receive the accused person if, for reason to be recorded in the proceedings, the court is satisfied that the child is telling the truth. (See Sec. 124 evidence Act) amendment.12. A judgment is defective if there are no findings on any discrepancies in the evidence, but a trial is not a nullity simply because there is a defect in the judgment. In the judgment, the usual practice is to enter up judgment and sentence separately on each count on which the defendant has been convicted, and not on the whole indictment. This implies that if on appeal the conviction on one or more counts is quashed, the judgment on good conviction on the other counts may stand13.
C. MINOR AND COGNATE OFFENCES
Minor and Cognate offences are dealt with at Section 179 of the Criminal Procedure Code. It provides that a person charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and the combination is proved, but the remaining particulars are 12
13
See Bwonwong'a M. Procedures in Criminal Law in Kenya (East African Educational Publishers Nairobi 1994) Chapter 18. Orlirld L.B, Crimiridl Procedure From Arrest to Appeal (New York, N.Y. University Press, 1947) Chapter IX. Page 269 of 382
not proved, may be convicted of the minor offence although he was not charged with it. This section was considered judicially in the case of Robert Ndecho and Ogonyo Luora -vs- R14. The appellants were tried with others on an information charging them with the murder of a police constable. The appellants were convicted of wilfully obstructing the police in due execution of their duty or of persons acting in their aid. Before noting the court's judgment, it is important to focus on section 179(2) of the Criminal Procedure Code which provides as follows:
'When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence and the combination is proved but the remaining particulars are not proved, he may be convicted of the minor offence although he was not charged with it'. In light of the above provision, the court held that where an accused person is charged with an offence he may be convicted of a minor offence although not charged with it, if that minor offence is of a cognate character, that is to say, of the same genus or species. The court went further to explain more on section 179(2). Nihill, Newnham and Smith JJA were of the view that the wording of section 179(2) Is permissive only and when the offence is murder a court should exercise its discretion most warily before convicting a person [accused] charged with any alternative offence, although cognate, other than manslaughter. The test to be applied, noted the judges, when exercising such discretion is whether the accused person can reasonably be said to have had a fair opportunity for making his defence to the alternative.
14
(1951)18 E.A.C.A 171, See also the case of Rv Koigi Wamwere & Others Criminal Case No. 1278 of 1994 (unreported) where the accused were charged with the of fence of Robbery with Violence and convicted for Robbery. Page 270 of 382
Further case law15 analyses a problem that before a conviction for a minor offence can be substituted for a major offence charged, the circumstances embodied in the major charge must necessarily, and according to the definition of the offence imputed by that charge, constitute the minor offence also However, this was a dissenting view by Briggs JA. Nonetheless, what is clear from this case (Wachira s/o Njenga –vs- R)16 is that where there are alternative counts and a conviction is recorded on one, a verdict should not be given on the other. Further it emerges clearly that before a conviction for a minor offence can be substituted for a major offence charged, the form of the charge must necessarily give the accused notice of all the allegations going to constitute the minor offence; it not being a question whether the form of the charge in a particular case, in fact, gives the accused notice of such allegations. The Tanzanian High Court has considered section 181 of the Tanzanian Criminal Procedure Code which is in pari materia with the Kenyan Criminal Procedure Code section 179. This was in the case of Ali Mohammed Hassani Mpanda –vs- R17. In this case, the issues that were being determined included the court's power to substitute a conviction of a minor offence and whether minor offence must be cognate to the major offence charged. The facts of the case were that the appellant together with others was charged with obstructing police officers in the due execution of their duty contrary to section 243(b) of the Tanzanian Penal Code. The Magistrate found the appellant not guilty of the offence charged but convicted him of the minor offence of assault occasioning actual bodily harm contrary to section 241 of the aforesaid Code. On appeal it was considered whether the Magistrate had power to substitute a conviction of the lesser offence and whether that offence must be cognate with the major offence charged. Spry -J- held that section 181 can only be applied where the
15 16 17
Wachira s/o Njenga -vs- R (1954)21 E.A.C.A 398. Ibid (1963)EA294. Page 271 of 382
minor offence is arrived at by a process of subtraction from the major charge, and where the circumstances embodied in the major charge necessarily and according to the definition of the offence imputed by that charge constitute the minor offence also and further where the major charge gave the accused notice of all the circumstances going to constitute the minor offence of which the accused is to be convicted. He further held that an essential constituent of the minor offence of assault occasioning actual bodily harm is not an essential constituent of the major offence of obstructing a police officer in due execution of his duty and that the charge as drawn did not give the appellant notice of all that constituted the offence of which he was convicted since it contained no allegation of assault; hence section 181 of the Criminal Procedure Code (Tanzania) was not applicable and the conviction under section 243(b) of assault occasioning actual bodily harm was set aside.
E. ORDERS ON JUDGMENT Once judgment has been entered in compliance with the provisions of the Criminal Procedure Code, Section 170 entitles the accused person upon application to a copy of the judgment or when he so desires a translation in his own language. Such a copy shall be given to him without undue delay and free of charge.
F. CONCLUSION The writing of a judgment is of fundamental significance. Failure to comply with the rules for writing a judgment may be fatal to the judgment. In the case of Ratilal shah –vs- the Republic18, where a trial Magistrate at the time of delivering the judgment stated that reasons would be given later the Supreme Court refused to look at the reasons written by the presiding Magistrate after the
18
(1958) EA pg.3 (HCK) Page 272 of 382
trial. The upshot of this as viewed against the background of the provisions of Section 168 of the Criminal Procedure Code relating to mode of delivery of judgments and section 169 relating to contents of judgment underscore the significance
of
this
Stage
of
CHAPTER FIFTEEN SENTENCES A. INTRODUCTION Sentencing is central in the administration of criminal justice. It is the process/stage in the criminal procedure at which a court of law of competent jurisdiction makes an order after convicting the accused, as to the specific penalty to be meted out to such criminal. The severity of a sentence depends on the circumstance of each case. Regard is usually had to the nature of the crime, the criminal and the purpose of the sentence. There are various schools which regard criminals in various perspectives. One extreme view is that criminals do not respect the rights and dignity of others and therefore should not themselves be accorded any such treatment of dignity and respect. They recommend that criminals should be punished so that society can be protected. On the other extreme is the view that criminals are victims of social, political, economic and psychological forces in society. Therefore, they recommend that sentencing should have the goal of salvaging and rehabilitating the criminals and should therefore be treated with compassion and understanding1.
It is against this
background that the principles pertaining to sentencing will be discussed.
Various theories have been propounded to explain criminal behaviour based on the notion that it is only after one understands what causes 1
Smith A.B & Berling L; Treating Criminal Offenders: Issues and Problems. PP 1-2 (1974); HL Packer. The Limits of Criminal Sanction. P.3 (1963). Page 273 of 382
trial.
criminal behaviour that appropriate remedy, by way of sentence, can be offered. However, for a judgment and verdict to be competent, it must not only be arrived at via the correct avenue, and indeed be correct, but the sentence imposed must serve to remedy the wrong in the most appropriate way while not losing track of human dignity and respect.
Although this treatise is not one in Penology a brief examination of the historical development of sentencing and punishment is germane to the proper appreciation of sentencing under Kenyan Law.
B.
HISTORICAL DEVELOPMENT OF SENTENCING AND PUNISHMENT The earliest form of punishment was based on the need for
retribution. In the earlier times, this was the dominant approach and rested on the idea that a criminal was responsible for the harm he has done and that it was right for him to be punished for he ought to receive his just 'payment'. The punishments were therefore often inhuman, degrading and at times excessive. They included whipping, branding, banishment, mutilation of limbs, emasculation etc. At other times, expiation of guilt by money payment was done2. The historical movement of punishment and sentencing is best illustrated by Glasser's six R's: revenge, rejection, repression, restraint, rehabilitation and reintegration3. Society's attitude towards punishment is gradually changing and has known change from the period when retribution was the overriding principle to 'modern' theory of punishment to rehabilitate and reintegrate the criminal back to the society.
2 3
Bloch H.A & Gies G; "Man Crime and Society PP 56-69. Glasser D; Social Controls. P. 55 1971. Page 274 of 382
Late in the 18th Century, penologists reacted sharply to the arbitrary administration of criminal justice and to the cruelties of some of the punishments prescribed. They suggested the adoption of a national approach while contending that administration of criminal justice must not be arbitrary but should be based on principles that guarantee the equality of everyone before the law. Therefore, punishment for a crime did not have to be unnecessarily cruel or capricious. The views of these penologists were a catalyst for the new impetus of criminal sentence, namely the prison. Among those intellectuals were lawyers such as Beccaria and Bentham. Beccaria was of the view that punishment should be proportionate to the seriousness of the crime4. Bentham5 shared in Beccaria's view. He saw man as a rational being endowed with free will, whose utility of an act is measured by its efficacy in producing happiness or reducing pain/suffering for everyone. He, therefore, saw that the punishment should he based on the principle that the pain for violating the law should be slightly more than the pleasure derived from the crime. Further 19th Century developments and those of the 20th Century have seen the incarceration policy being de-emphasised. Social scientists focus the attention on the complex social factors that shape a person's behaviour. These include economic, political and other social factors. Other criminologists stress that criminal behaviour is caused by personal factors such as physical, genetic and other biological characteristics of the offenders, and that these factors are most central in the offender's criminal behaviour. Modern psychology has revealed that factors such as poor impulse control, emotional instability and weak super-ego etc may result in criminal behaviour. To this extent, the criminal is thus not a wilful, rational being endowed with free will, but one acting from uncontrolled irrational 4 5
Beccaria C; Essay on Crimes and Punishment. (1953). Bentham J; An Introduction to Principles of Morals and Legislation. Chapters 12,13&14 1948 Page 275 of 382
impulses6. From the foregoing, criminality is regarded as the result of one form or another of abnormality in the individual in which the criminal has no control. On the other hand, it is seen as arising out of the socio-economic and political environment in which the offender lives and has a free will in them.
Owing to this distinction, the penal policy has been influenced in the following manner:
'those who believe in the free-will of the offender maintain that he should be accountable for his behaviour, while the opposite view holds that the best remedy is to re-educate the criminal with a view to reintegrating him back to society'.
However, despite the numerous scientific findings, criminal law largely relies on the "free-will" doctrine and treatment begins only after sentence has been imposed. If there is a conflict between the court's duty to protect the public and reform, it is probably reform that will have to give way7. Lord Devlin has clarified the position further that: “When the period has been fixed as justice demands, the law authorizes and indeed encourages the penologists to use it for the work of reformation... The sentence must not be longer than is justified by the gravity of the crime and must
6
7
Freud S; A General Introduction to Psycho-Analysis, (Joan Riviere tr. 1935 first published in 1920). Smith J C & Hogan B; Criminal Law. (London Butterworths 8th Edition 1996) PP 4-15. Page 276 of 382
not fall below the least that justice demands... The penologists' objective is to send the prisoner back into the world changed for the better. When these objectives clash, it is just sentence which must prevail8.
With the above analysis, the issues pertaining to sentencing can now be discussed.
C. OBJECTIVES OF SENTENCING
Sentencing is the specification of the punishment or criminal sanction which is to be imposed upon a convict for the crime committed. To this specification, two important questions must be determined;
(1)
What objects are to be achieved by it?
(2)
What measure or measures are most appropriate to achieve the desired objective?
'... There are two and only two ultimate purposes to be served by criminal punishments: the deserved infliction of suffering on evildoers and the prevention of crime... the institution of criminal punishment draws substance from both these ultimate purposes9'.
These ultimate purposes, and punishment, are justified by the utilitarian theory (deterrence, incapacitation and rehabilitation) according to which punishment is seen as the vehicle via which certain socially desirable
8
9
Devlin .P, The Judge' 1979 (at 29-30) Ct of Justice Robbert Jackson in Gregg Cartage and Storage Co -vs- United States at 79-80. Packer H.L, Limits of the Criminal Sanction, Supra Note 1. Page 277 of 382
consequences of deterrence, incapacitation and rehabilitation of offender are achieved. Talking of deterrence, one clearly sees two facets of it; on one hand general deterrence and special or individual deterrence on the other. General deterrence is probably most directly linked to Bentham's ideas, since the general population will be dissuaded from criminal behaviour, observing that punishment will necessarily follow commission of a crime and that pain will be greater than the benefits stemming from the illegal act10. In specific or individual deterrence, the goal is to deter the criminal from committing further crimes. This is accomplished by subjecting him to an unpleasant experience that he will not wish to endure again11. Incapacitation has the object of preventing crime by physically restraining the offenders themselves. The 'prison' system is the most common/typical mode of achieving that end. In modern times, the most persuasive justification for any criminal sanction is not so much retribution but reformation and rehabilitation. However, modern retributivism contends that punishment for those who break the criminal law is justified since it restores the balance which the offence has disturbed and ensures obedience to the law12. Hence, in this view, punishment is justified not merely because it is deserved but also because it contributes towards crime control13. Although the goals and justifications for punishment may appear to be discrete concepts, pursuit of one objective may well conflict with pursuit of another. For example, the goals of general and special, deterrence are incompatible. The level of punishment necessary to deter others may be inconsistent with the needs of 10 11 12 13
Cole G. F, The American System of Criminal Justice P.387 1975. W. Fave W & Scott A, Criminal Law P.22 (1972). Sir R. Cross &Ashworth A, The English Sentencing System PP. 120-165(3ed. 1981). C. J. Emmins, A Practical Approach to Sentencing. Page 278 of 382
an individual offender. In the same manner, if the object is prevention, imprisonment may be justified for both a trivial and a serious offence. The objectives do overlap quite a great deal and whereas imprisonment may be justified in terms of its meritorious goal of incapacitation, it has its objectives as retribution, deterrence and rehabilitation of the offenders. It is therefore difficult for a court to determine a sentence that accommodates one or more of these objectives as applied to a particular case.
D. THE AVAILABLE SENTENCES Section 24 of the Penal Code (Cap 63) provides the following punishments for the offence against the Code; Death, imprisonment for life, detention under Detention Camps Act, fine forfeiture, compensation, security for the peace and good behaviour, any other punishment provided by the Penal Code or any other Act.
i) Capital Punishment It is the mandatory penalty for murder, treason, robbery with violence or attempted robbery with violence. It can only be imposed upon an adult (over 18 years of age). If a youthful offender is convicted of an offence carrying a mandatory death penalty, he is detained at the President's pleasure. It cannot also be imposed upon a pregnant woman, who in the event of a like conviction will instead get a life imprisonment. However, the President may exercise his prerogative of mercy as vested upon him by the Constitution14 to pardon any such person(s) convicted of a capital offence.
14
See Constitution of Kenya sections 28 - 29 1998 (1992) Text. Page 279 of 382
In R v Susan Akoth15 Justice K. H. Rawal ruled that child offenders even though charged with the offence of murder are not punishable by sentence of death.
ii) Imprisonment This is the most popular punishment and entails the actual physical restraint of a person in custody. For most offenses only the maximum custodial period is given. This gives the court wide discretion to decide what custodial period, if any, will be given. A sentence of imprisonment may be accompanied by hard labour. Generally, a sentence of imprisonment shall not be imposed on a first offender except where the offence is particularly grave, aggravated or wide-spread in a particular area16. It has been held in the Kitika Case17 that a crime committed as a result of domestic feud will not necessarily attract a term in prison because it has been argued that since the parties are closely related, imprisoning the offender may also in effect punish the complainant.17(a)
iii) Detention in Detention Camps Detention Camps Act (Cap 91) provides that a person who is convicted of an offence that would adequately be punished by a fine or imprisonment for not more than six months, may instead be sentenced to detention in a detention camp for any period upto six months. Detention Camps are also needed to detain offenders who have been convicted of offences for which the prescribed punishment is only a fine or fine and imprisonment and the
15 16 17
17(a)
High Court of Kenya Criminal Case No. 236 of 2003 (ureported). Supreme Court of Kenya Circular to Magistrates No. 13 of 1956, 29 (K.L.R)205. See Kitika s/o Tintilia (1968) H.C.D No. 65, also See *Soma s/o Jundu (1969) H.C.D. No. 151. Ibid and see also Soma s/o Jundu (1969) H.C.D. No. 151. Page 280 of 382
offender fails to pay the fine the court may order that in default of payment the offender undergoes a detention. Detention camps were once very popular as providing an alternative to imprisonment for petty offenders for whom other penalties were unsuitable. But because of the introduction of an alternative in the form and nature of extra-mural penal employment, the number of detainees in detention camps has declined, and it is hoped that the number will decline even further.
v) Fines A limitation upon fining is provided by the various maxims imposed by the provisions of the Penal Code or any other statute. The amount of fine should be realistic. Fines are preferred to orders of imprisonment. A sentence for imprisonment without the option of a fine, even though it is allowed by the statute, should be exercised with great caution. Thus, in the case of Chander Kanta Sethi –vs R18, imprisonment without the option of a fine was imposed on the sole consideration that the accused should not be allowed to buy her way out. On its appeal, the Supreme Court of Kenya held inter alia that the Magistrate was not correct in holding that if a fine was imposed, the offender was being allowed to buy her way out of the consequences of the act for which she had been convicted. As per Rudd Ag CJ,
... We do not consider that this is a proper way of deciding the nature of the sentence which should be imposed... we consider it irrelevant that any fine that might have been imposed would be paid by the appellant's husband or
18
(1962)EA523. Page 281 of 382
relations...19
Imposition of a fine is to be preferred irrespective of accidentals earning capacity. The case of Mita –vs- R20 focuses on the point. In this case the appellant, an air-hostess, bit the complainant on the chin. She pleaded guilty to causing actual bodily harm. The Magistrate sentenced her to two months' imprisonment although she was a first offender and was contrite. In doing so, he commented that he did not think a fine would serve any purpose as the appellant appeared to be earning a lot of money. On appeal against the sentence, Madan -J- held that irrespective of an accused person's earning capacity it is not wrong to impose a fine unless the circumstance of the case precludes the imposition of such punishment;
... the contrary cannot be correct otherwise every well-paid accused person, irrespective of the nature of the offence would be sent to prisons by the courts without the option of a fine21 The fine must however bear a reasonable relation to the accuser’s ability to pay22. The Tanzanian High Court has held that before making the order imposing a fine, the court should make some inquiries as to the financial standing of the offender, his property and income23. This would seem a very welcome attitude to be adopted by our courts. Courts have held that the fine should not he excessive. Thus in the case of Mohamed -vs- R24, it
19 20 21 22 23 24
Ibid at 527. (1969)EA598. Ibid at 599. Mohamed Juma -vs- R I T.L..R, 257. R -vs- Bishom s/o Mwango 2 T.L..R, 31. (1969)EA287. Page 282 of 382
was held that a fine twice the value of property under litigation was excessive and the fine was reduced to the corresponding value of the chattel. It is, however, unlawful for a person to be sentenced to imprisonment in addition to a fine unless tthe statute so authorizes. This was given judicial consideration in Ahmed Hirsi Mohammed –vs- R25. The appellant was convicted under section 3(1) of the Miraa Prohibition (Scheduled Areas) Ordinance, 1951 (as amended by Ordinance No. 11 of 1957) and sentenced to six months' imprisonment and to pay a fine of Shs. 100/= or six (more) months' imprisonment in default of payment. The maximum penalty for a contravention of section 3(1) of the Ordinance as amended was a fine of Sh.2,000/- or imprisonment for a term not exceeding twelve months. Sinclair CJ and MacDuff -J- held that the appellant should not have been sentenced to both imprisonment and a fine. They, however, quashed the order of fine against the appellant but upheld the imprisonment sentence.
vi) Forfeiture Courts have power to order the forfeiture of any property which has been used in connection with the commission of a crime. If the property cannot be found or cannot be forfeited for whatever reason, the court will assess the value of the property which ought to have been forfeited and order such sum to he forfeited. This can be done in addition to or in lieu of any other punishment which may be imposed for the offence.
vii) Compensation Section 31 of the Penal Code empowers the court to order a convict to compensate any person injured by his offence, either in addition to or in
25
(1958)EA63. Page 283 of 382
lieu of any other penalty. A question for consideration at this point is whether one is liable to imprisonment in default of making good the order of compensation. The case of R -vs- Lokidilio s/o Laitogou26, though tangential, is germane. The resident Magistrate at Rumuruti convicted the accused of killing an animal with intent to steal it and passed a sentence of eighteen months' imprisonment and also ordered the accused to pay Shs. 250/= compensation in default of which the accused was to serve a further three months imprisonment. The record was then transmitted to the Supreme Court for confirmation. It was held inter-alia that there is no authority in Criminal Procedure Code for ordering imprisonment in default of payment of compensation at the same time as the order for payment of compensation is made and accordingly the order for imprisonment in default of distress was at that stage illegal. It was further held that where an order is made the court should first inquire whether distress and sale of the accused's property would be ruinous to the accused or his family; and secondly whether the accused is entirely without property on which distress could be levied. If either of these questions is decided in the affirmative or if there is any other good and sufficient reason for not selling the accused's property, the court has a discretionary power under section 335 of Criminal Procedure Code to commit the accused to prison. If, however, the inquiry shows that the accused has property or may have property on which distress can be levied, the proper course is to issue a warrant of distress under section 331. If the officer to whom execution of the warrant is entrusted reports that there is no (or no sufficient) property upon which to distrain, the court may in its discretion commit the accused to prison. Under the provisions of section 175 of the Criminal Procedure Code,
26
Confirmation Case No. 344 of 1958; Reported in (1958) EA 138. Page 284 of 382
compensation can he awarded only out of a fine imposed. However, a heavy fine should not be imposed merely to create a compensation fund 27. When a fine has been imposed or compensation order made under section 31 (Cap 63), or an order as to payment of costs of prosecution made under section 32 (Cap 63), the court may direct that in default of payment, the offender be imprisoned for a maximum period ranging from fourteen days to twelve months depending on the amount in question (see section 28 of Cap 63). However, under section 336 of the Criminal Procedure Code, execution of sentence of imprisonment in default of a fine can be suspended for upto thirty days. Further, no commitment for non-payment of a fine shall be imposed which is longer than six months, unless the law under which the conviction has taken place allows a longer custodial period28.
viii) Security for Good Behaviour A convicted person may be bonded over on his own recognisance to keep the peace and be of good behaviour for such period as the court thinks fit. This can be done either in addition to or in lieu of any other punishment to which the offender may be liable29.
ix) Absolute and Conditional Discharge Section 35 of the Penal Code provides that if the court is of the opinion that it is inexpedient to inflict punishment and that a probation order is not appropriate, it may absolutely or conditionally discharge an offender. When the discharge is conditional, the condition to which the offender is subject is that of not committing any further offences during the period of
27 28 29
Ahmed Mohamed -vs-R (1959) EA 1087. See section 342 of Criminal Procedure Code (Cap 75). Section 43 of Criminal Procedure Code (Cap 75). Page 285 of 382
discharge. The period of conditional discharge can be upto a maximum of twelve months. Should an offender be convicted of an offence committed during the currency of a conditional discharge he is liable to be sentenced for the offence in respect of which he was discharged.
x) Probation Probation has been described as a combination of both 'treatment and punishment' in the context of community based corrections. Offenders receive counselling and guidance in an attempt to bring them back to acceptable social life by positively adjusting them. In Kenya, probation is governed by the Probation of Offenders Act (Cap 64). Section 4 of the said Act specifies that where a court is of the opinion that it is expedient to release the offender on probation, it may convict the offender and make a probation order. The High Court can also make an order of probation in lieu of sentencing an offender to any punishment. In various instances the probation officer's report will be required before sentencing. Thus in Kabeni –vs- R30, the appellant pleaded guilty to a charge of attempted suicide and was sentenced to six months imprisonment. In allowing the appeal against sentence, Trevelyan -Jnoted:
It would have been far better had the Magistrate realized that an accused such as the appellant in this case needs sympathy and help rather than punishment. What useful purpose can a period of six months' imprisonment serve in circumstances such as we have here? A probation officer's report should be obtained as a matter of course
30
(1970)EA503. Page 286 of 382
before a person convicted of such an offence is dealt with31.
The Courts must have regard to the offender's age, character, antecedents, home surroundings, health or mental conditions of the offender or the nature of the offence, and any extenuating circumstances in which the offence was committed. The offender may be required to enter into a recognisance with or without sureties.
xi) Extra-Mural Penal Employment. Extra-mural penal employment is provided for by the Prison's Act32 and can be ordered by a court in case of a convicted person sentenced to imprisonment for not more than six months or sentenced to prison for nonpayment of a fine, compensation or costs or sentenced to detention. The offender works for half a day and is provided with food while at work but he is not paid.
xiii) Settlements Courts are vested with power to promote reconciliation and encourage and facilitate settlement in minor criminal cases on terms of payment or compensation or other terms33. This view was given judicial cognisance in Samuel Kurai -vs- R34. The Honourable Judges of Appeal while, allowing the appeal, authoritatively and unanimously held that the trial and first appellate courts erred in their interpretation of section 176, by letting the appellant serve an imprisonment sentence at a time when there was already an amicable reconciliation between the appellant and the complainant. The
31 32 33 34
Ibid at Para. G Cap 90 laws of Kenya. Promotion of reconciliation, section 176 Criminal Procedure Code. Criminal Appeal No. 14 of 1990. Page 287 of 382
High Court thought that the offence, under section 251 of the Penal Code35, should not be treated with leniency. The Court of Appeal was of the view that was not the issue, for consideration. The fact of the matter is that under section 176 of the Criminal Procedure Code a court may promote reconciliation and encourage and facilitate reconciliation in circumstances which are expressly stated in the provision of law.
This is a usual power vested in the Kenyan Courts. The drawback is that these settlement provisions have been sparingly used in Kenya, perhaps because the particular offences on which, the courts should apply them are not specifically stated. In some cases the courts remarked that the express mention, of common, assault in the reconciliation section, implicitly rules out more serious forms of assault36. Until the Court of Appeal or the Act comes out authoritatively on which class or classes of offences the reconciliation provision should encompass, the trial courts will hesitate to offer this remedial measure. Regard must also be had on the role of this provision as a vehicle of encouraging voluntary settlement so that tiresome and expensive litigation can be avoided for many offences.
xiv) The Treatment of Juvenile Offenders
The Children Act Section 191 provides several options for the treatment of child offenders.
They include: -
35 36
Penal Code Cap. 63 Laws of Kenya. The section deals with Assault Causing Actual Body Harm. See R. vsSaidi Ibrahim (1960) EA 1058, Umbwa Mbenga & Another vs R(1969) HCD n.312. Page 288 of 382
(a)
Dischargig the offender under Section 35(1) of the Penal Code.
(b)
Discharging the offender on his entering into recognizance with or without sureties.
(c)
Commiting a fit person whether a relative or not or a charitable children’s institution willing to undertake his care.
(d)
If the child is above 10 years and under 15 years of age by ordering him to be sent to a rehabilitation school suitable to his needs and attainments.
(e)
By ordering the offender to pay a fine, compensation or costs or any or all of them .
(f)
In case of a child who has attained the age of 16 years, dealing with him in accordance with any Act which provides for establishment and regulation of Borstal Institutions.
(g)
By placing the offender uner care of a qualified counselor. Under Section 189 of the Childrens’ Act the words “conviction” and “sentence” shal not be used in relation to a child dealt with by the Children’s Cout and any reference in any written law to a person convicted, a conviction or a sentence shall, in the case of a child be construed as including a reference to a person found guilty of an offence, a finding of guilt or an order upon such a finding as the case may be.
xv) Suspended Sentence This mode of sentencing, is very typical of Tanzania and is best illustrated by the way Tanzanian courts have exercised it, under the Tanzanian Criminal Procedure Code37, a court, may in appropriate cases, suspend either or part of a prison sentence. A suspended sentence is one
37
Section 294(A) thereof. Page 289 of 382
which will not be brought into effect unless and until the offender is in breach of certain conditions set out by the court. If the offender breaches any of the conditions during the period, of suspension, he will be required to serve the sentence which was suspended38. This to some extent, is similar to conditional discharge of the Kenyan practice.
E. ALTERNATIVES TO IMPRISONMENT In the recent past, suggestions have been forwarded urging the adoption of non-custodial rather than custodial penal policy. The merits of a non-custodial sentence derive from both penological and economic considerations. Non-custodial, sentences are cheaper than custodial ones and are therefore preferred on economic grounds. Custodial sentences have no more reformative effects than non-custodial ones. Many people are of the conviction that imprisonment has several undesirable effects first, they argue that it damages mental as well as physical health of the prisoner and secondly, 'hardens' them due to contact with one another in an environment of offenders!, and hence recidivism increases with length, and frequency of custody39.
From the earlier discussion, its clear that a wide range of noncustodial sentences are available to courts. They include absolute and conditional discharge, probation, security for good behaviour, fines, extramural penal, employment, restitution, and settlements. To the above-list, one may add the option, of suspended sentences of imprisonment. They are only potentially custodial in nature, because with the knowledge that he (offender) is subject to a suspended sentence, he is likely to be deterred from breaching the conditions imposed by the court. For this therefore, the 38 39
Also see Slattery.B, A handbook of Sentencing, (1972) at 14041. Walker N. Sentencing, Theory, Law & Practice (1985) 159-69 pp. 241 Page 290 of 382
sentence remains a non-custodial one. However, the situation today is that imprisonment is the most popular mode of dealing with offenders despite the existence of such. a great wealth of alternatives to it. It is therefore suggested that the sentencing provisions of the Criminal Law be amended so as to plug the loopholes in the existing laws:
i)
Imprisonment to be imposed only as a sanction of last resort,
ii)
Imprisonment not to be imposed on minor offenses unless there are aggravating circumstances,
iii)
Imprisonment not to be imposed for first: offenders or for domestic crimes unless the offence be of a serious nature.
iv)
Use of imprisonment for non-payment of fines should be avoided as far as possible and instead, use of extra-mural penal employment should be encouraged.
v)
When non-custodial measures are used, they should be real alternatives to imprisonment, and not in addition, to it. It is only in serious crimes when. and where non-custodial sentences should be combined with imprisonment.
F. COMPENSATION: REVISITED The Kenyan Penal Code and Criminal Procedure Code provide for compensation but they are not adequate. As shown by the case of Muln'ndia –vs-R40, the East African Court of Appeal observed that the power to award compensation,
"... should only be used in the dearest, cases, as when a
40
(1966)EA425. Page 291 of 382
person has suffered a. comparatively minor physical, injury, or has been deprived of property, or whose property has suffered damage, and such deprivation or damage is of readily ascertainable and comparative small value”.
Further, courts are reluctant to make realistic use of the compensatory provisions contained in the Criminal Procedure Code. They have taken the view that fines should be calculated exclusively for the purposes of punishment and not then increased in size merely in order to allow them to be used for compensation purposes41. This is despite the fact that the compensatory fine has been provided specifically to avoid the necessity of subsequent civil proceedings. It is therefore thought: that. these lacunae should be removed and the provisions relating to compensation should be strengthened further to provide that:
1.
Offenders or third parties responsible for their behaviour should, as far as possible, make fair compensation to victims, their families or dependants.
2.
Where a community traditionally recognised the performance of personal services for the victim as adequate reparation or compensation. in kind rather than cash, the courts should still be able to make such orders.
3.
There, should be no limit to the amount of compensation tine court can order. This would leave scope for providing genuine compensation in serious cases. However, the court must assess the offender's capacity to pay.
41
See Mehar Singh-vs-R(1951)6U.I..R. 265. Page 292 of 382
4.
Whenever the evidence is insufficient to support a criminal charge, but establishes a civil wrong, the court should be able to order compensation.
G.
RESTITUTION Under section 177 of the Criminal Procedure Code the court is
empowered to restore property found on accused person to the person who appears to be entitled thereto, the statute confers this discretionary power in the following terms;
Where, upon the appreciation of a person charged with an offence, and property is taken from him., the court before which he is charged may order:
(a)
that the property or a part thereof be restored to the person who appears to the court to be entitled thereto and, if he be the person charged that it be restored either to him or to such other person as he may direct; or
(b)
that the property or a part thereof be applied. to the payment of any time or any costs or compensation directed to be paid by the person charged.
H.
COSTS Under Section 171 (1) of the Criminal Procedure Code
Kenyan law allows for compensaton in limited circumstances to a public or private prosecutor.
Section 171 (2) also allows for the compensation in Page 293 of 382
limited circumstances by a private prosecutor to the accused person who has been discharged or who has been acquitted if the prosecution for the offence was originally instituted on a summon or warrant issued by a court in application of a private prosecutor.
The provision to Section 171(2) sets the compensaton level to the levels of a maximum of Twenty Thousand Shillings in the High Court or Ten Thousand Shillings in the Case of a subordinate court.
This discretionary power is exercisable by a Judge of the High Court or a Magistrate of the subordinate court of the first and second class. The proviso to section 171(1) sets the compensation level to the paltry levels of a maximum of two thousand shillings in the High Court or five hundred shillings in the case of a subordinate court.
I. SENTENCING IN TRAFFIC CASES The Traffic Act Chapter 40.3 of the Laws of Kenya creates offences which invite sentences some of which have characters different from offences under the Penal Code. Some of the offences under the Traffic Act include careless driving which invites a fine for a first offender and the option of a fine and a custodial sentence if the accused has been previously convicted. Other offences are those of dangerous driving and causing death by dangerous driving which, carry optional sentences of fines, custodial sentences or disqualification from driving. Because traffic offences are not crimes 'sensu-strictu.' offenders are permitted to plead, guilty in writing in minor offences like overtaking or speeding. Page 294 of 382
J. YOUNG PERSONS AND SENTENCING It is important to note that a child cannot be sentenced to imprisonment or placed in a detention camp and no child shall be sentenced to death. In R v Susan Akoth42 a 12-year old was charged with murder and attempted murder by throwing the victims into a borehold. She was arrested and kept in custody for about 10 months awaiting to be arraigned in court.
Her advocate made an
application for bail to be granted as provided for in the children’s Act43, Child Offender Rules I the 5th Schedule.
The prosecution had not taken a hearing date for over twelve months
and the advocate for the accused made aother
application seeking an order discharging her from the pending murder trial and a dismissal of the said case on the gorund that the prosecution had failed to conduct the case within the prescribed statutory limitation period and also that the continued maintenance of the case was against the best interest of the child as provided in the Act.
Rule 12 (4) provides that where a case to which paragraph (3) of this rule applies is not completed within twelve months after the plea has been taken, the case shall be dismissed and the child shall not be liable to any further proceedings for the same offence. 42
HCCC No. 236 of 2003 (unreported).
43
Page 295 of 382
In Kaisa v R44 the appellant who was twelve years old was convicted of handling stolen property and was sentenced to seven years imprisonment. On appeal it was held that no one under the age of fourteen years can be imprisoned ; that no more than the minimum sentence should be imposed and that rehabilitation is the most important factor when sentencing anyone so young. The appeal succeeded and a committal to approved school substituted. Section 191 (g) of the Children’s Act lays down that in the case of a child who has attained the age of sixteen years, should be dealt with in accordance with any Act which provides for the establishment and regulation of Borstal Institutions. The High Court had infact ruled on this point in the case of Letoyiani and Another v R45 where Harris J ruled before a court convicts a youthful offender it must first consider whether he should be committed for training to a borstal institution.
K. SENTENCING IN KENYA The Kenyan bench has seen and witnessed diverse attitudes towards sentencing. While the modern bench would find no difficulty in agreeing that reformation and rehabilitation, are the most avowed policies to be pursued, it is not doubted that a section, of it would still be heard to demur to this policy. The concept of reformation is a modern recognition that punishment is not an end in itself; a movement from the classical, concept 44 45
(1975) EA 260 (1972) EA 50. Page 296 of 382
of retribution and deterrence to something more positive. This has been rendered necessary by the fact that problems of offenders are to a large extent linked with a type of psychological, complex not previously realized in the treatment of offenders. What views then, do members of the bench, hold on this aspect of reformation.7 A former Chief Justice, Mwendwa C-J, once said;
"For my part, I am of the persuasion that all things being equal, it is in the very nature of things that courts in Kenya should find themselves laying more emphasis on deterrence, and on the protection of the public than on retribution and reformation. This is in my view what is likely to produce best results in the fight against the criminal element46.
The Honourable CJ (as he then was) was en rapport with the commonly held presumption that deterrent sentences deter. This is not wholly without fault as can be remembered from the earlier discussion on deterrence. The CJ was not responsive to the ideals of reformation. The over-riding aim of reformation is the protection of society by serious and sustained attempts to prevent 'further relapses into crime. But coupled with this aim, there is another; the personal rehabilitation of the offender for his own sake, a point the C-J seemed to ignore. This aspect of personal rehabilitation was expressed in very realistic and plausible terms by Mr. A. K. Saikwa, Commissioner of Prisons (as he then was) that;
"There is now an urgent urge to explore new methods for the prevention of crime and the treatment of offenders
46
The Administration of Justice in Kenya, a talk to the students of A.H.l.T.I Kabete, 1970. Page 297 of 382
which would fairly reflect our society’s interest in protecting
itself
and
yet
would
provide
maximum
opportunity for the individual to turn away from a career of criminal In addition to ensuring secure custody of those who constitute a potential danger to community, our treatment of offenders should aim at discovering in each individual inmate his positive potentials and developing them as far as possible in the setting of a penal treatment towards his rehabilitation.47
The above exposition necessarily skirts the question: should practical considerations of justice lay greatest stress on retribution, deterrence, protection of the public or on reformation? Such a question does not admit of a certain answer vigorously deduced from established facts, and the answer is that a judge or Magistrate would find it impossible to reconcile the four factors. All the court can and needs to do is to weigh the four factors against each other in relation to the convict: himself, the facts of the case and the circumstances prevailing at the time. However, such an approach must lead to disparities between the sentences passed, in different courts and by same Magistrates for like offences. It is submitted that disparity in sentencing is most apparent in cases of intermediate gravity, for the more serious or the less serious case rarely bothers the court. It is the case in the middle where a court is most likely to hesitate. The courts have increasingly come to consider characteristics of the individual offender rather than the nature of his offence. The needs of the individual offender rather than his guilt would form the basis of the sentence passed. The emphasis here is on preventive and rehabilitative 47
An Approach to Penal Administration in E. Africa. East African Law Journal (1966) Vol.2, PP 25. Page 298 of 382
measures. But a warning is sounded that generalization here is dangerous. If on the scale, the offender's personal interest outweigh the demands of public policy of a deterrent sentence, then individualization. of sentence is desirable. On the other hand, in certain offences such as robbery and various shades of corruption in public offices the courts view the need for a deterrent sentence to outweigh other considerations. Therefore, under the general principle of individualization the important factors will be the age of the offender, his status, health and criminal record. The Jurisprudence in Nilsson -vs- R48 that an inquiry as to the character and background of the accused, is necessary before determination of sentence' is therefore sound.
L. CONCURRENT AND CONSECUTIVE SENTENCES The general rule is that where a person commits more than one offence at the same time and in the same transaction, concurrent sentences of imprisonment should be imposed R –vs- Sowedi Mukasa49, however, difficulties arise when we take this approach. Take for example the case of a prisoner, who while in the act of attempting to escape from lawful custody meets a prison warden just outside the prison grounds and hits him on the head with a stone. If the offender gets two years for the attempted escape and one year for assault, the concurrent sentence will be two years yet the assault has aggravated the whole, transaction. In R -vs- Nathani50 Newbold V-P held that 'in order that different acts should make up one transaction, it must be inherent in them that from the very beginning of the earliest act the other acts should either be in contemplation, or necessarily arise therefrom, as from the very nature of the transaction in view, from
48 49 50
(1970)EA599. (1946)13 E.A.C.A C.A. 97. (1965)EA777. Page 299 of 382
component parts of one whole. If, however, the facts establishing two counts are precisely the same and the accused is convicted on one of them, he cannot be punished on the other even if in law it constitutes another offence. In such cases ,therefore, it would be improper to award two sentences to be served concurrently or consecutively. In Seifu s/o Bakari –vs- R51, the appellant was convicted of attempted murder and on a second count of attempting to strike with an arrow with intent to cause actual bodily harm. The second count was in the nature of an alternative, both being founded upon the same act of the appellant, namely, the shooting of the arrow at the complainant. The appellant having been convicted of both counts was sentenced to six years’ imprisonment on the first count and to four years' imprisonment on the second, count, the sentence to run concurrently. On appeal, it was held that as both counts on which the appellant was convicted were founded upon the same act, the greater offence is the first count which included the lesser offence, in the second count, the sentence in respect of the second count contravened section 21 of the Tanganyika Penal Code, which section provided that a person shall not be punished twice for the same offence, and "offence" was defined in section 5 thereof as an act or omission punishable by law. But if the facts disclose two offences involving two separate acts, the accused may be charged with and convicted of and punished for both. In Surat Singh –vs- R52 two accused, persons were convicted of assault causing actual bodily harm of one man, assault causing such harm of a second person and the same for a third person. Each offence took place on the same day but at different times. They were a series of incidents connected with each other. The Supreme Court held that the sentence 51 52
(1960)EA339 (C.A). (1946)13 E.A.C.A 97. Page 300 of 382
should run concurrently, not consecutively. In a later case of Khalif –vsR53 the appellant was convicted of dangerous driving, failing to stop after an accident and another offence. The High Court said that in the circumstances of the case, the sentence of two months for failing to stop will be served concurrently with the sentence for dangerous driving. Concurrent sentences are exclusively awarded for related offences. In Musa s/o Dakar -vs- R54 it was stated clearly that it is the universal practice, in the absence of good reason to the contrary, to order sentences for the related offences of house-breaking and stealing to run concurrently with one another. This practice extends to similar combinations such as theft and fraudulent false accounting, store breaking and theft, and such like combinations. A sentence of imprisonment in default of payment of a fine cannot be made concurrent with any other sentence of imprisonment. In R –vsOfunya55, the Magistrate convicted the respondents of offences under two different Acts. Fines were imposed with prison sentences in default of payment, and ordered that if the respondents went to prison, sentences were to run concurrently. On review, the High Court ruled that the Magistrate's order was improper. What therefore emerges from the foregoing is that concurrent sentences should normally be awarded, not only for offences committed in the same transaction, but also for similar offences committed in a series of transactions. Therefore, except in rare circumstances, where offences are dealt with at a single trial, concurrent sentences should be awarded. This can be justified on the premise that the criteria for joinder of charges and those of concurrent sentences are almost the same.
53 54 55
(1973)EA3G4. (1968) H.C.D (Tanzania) No.239. (1970) EA 78. Page 301 of 382
How then, is the court to deal with an accused convicted of several offences committed in the same transaction, all of which deserve fines. Sadly, there is no clear and direct judicial or statutory authority on how to deal with such a problem. However, Slattery56 suggests that the best solution is for a court to decide on a total fine which is appropriate to the entire wrongful transaction and then to impose individual fines on each count, which total up to the amount decided on earlier. Whether to impose a term of imprisonment or a fine is a question whose primary consideration is the suitability of the sentence for the particular offender.
M.
ALTERATION OF SENTENCE AND COMMITTAL Having noted that a wrong sentence may be imposed by the court, it
is imperative to discuss the principles governing alteration of sentence upon appeal and allied concept of committal to superior court for sentence. Under section 354 (3) of the Criminal Procedure Code, the High Court has power to alter a sentence passed by a lower court. The principles upon which appeal courts will act in reviewing sentences were clearly pronounced in Ogalo s/o Owuora –vs- R57. In this case, it was well stated that the principles upon which an appellate court will act in exercising its jurisdiction to review sentences were firmly established. First, the court does not alter a sentence on the mere ground that if the members of the court had been trying the appellant they might have passed a somewhat different sentence, and it will not ordinarily interfere with the discretion exercised by a trial judge unless as was said in James – vs- R58, it is evident that the judge has acted upon some wrong principle or overlooked some material factor. 56
57 58
Slattery B: A handbook of sentencing, .with particular reference to Tanzania. Nairobi, (East African Literature Bureau.) 1972. (1954)21 E.A,C.A270, (1950)18 E.A.C.A 147. Page 302 of 382
Secondly, the trial criterion is that if the sentence is manifestly excessive in view of the circumstances of the case, the sentence will be disturbed. These principles are analogous to the English Rule of 'non-interference', that is, an appellate court would not interfere with the sentence of a lower court unless satisfied that the sentence was so severe as to amount to a miscarriage of justice. Thus, following the case of Ogalo-vs- R, Harris J in Nilsson –vs- R59said:
"Before an appeal against sentence can succeed this court must be satisfied that there exist to a sufficient extent circumstances entitling it to vary the order of the court below.60
The appeal court will only interfere with a sentence of the court below where and when it is evident that the court has;
(i) acted upon some wrong principles, or ii)
overlooked some material factor(s) or
iii)
where the sentence is manifestly excessive having regard to the
circumstances of the case.
The power of the higher court to review is an important safeguard against apparent injustice in Magistrate's courts, and a recognition of the principle that sentence should fit the crime as well as the offender himself.
N.
COMMITTALS Where a person aged eighteen and over is tried and convicted by a
59 60
See note 59 (Supra). Section 221 of Criminal Procedure Code (Cap 75). Page 303 of 382
subordinate court of an offence punishable by that court, then, if, on obtaining information as to his character and antecedents, the subordinate court is of the opinion, that they are such that greater punishment should be inflicted than it has power to inflict, the court can commit such person to the High Court for sentence. This concept must however be read in the light of the case of Aganyi -VS- R61, an appeal from the supreme court of Kenya, where the court of Appeal for Eastern Africa held that where a Magistrate convicts but commits the accused to the Supreme Court for sentence, any appeal against conviction lies to the Supreme Court and against sentence to the Court of Appeal. From this decision, it would appear that appeals against sentence under section 221 of the Criminal Procedure Code cannot be heard by the Court of Appeal until the appeal against conviction has been determined by the High Court, or time for appealing has expired without an appeal having been filed, or until the accused shows no intention of appealing against conviction. This provides a golden reminder that the system of appeals in Kenya is hierarchical. However, committals are not done haphazardly and [the] practice requires that information about the accused be obtained. Thus in Katungombuki -vs- R62 the appellant was convicted by an African Court of stock theft contrary to section 279 of the Penal Code. The court purporting to act under section 41A of the African Courts Ordinance 1951, ordered that the case should be transferred to the firstclass Magistrate for sentence, presumably on the grounds that the offence merited greater punishment than the lower court could impose. The Magistrate purporting to act under section 41A(2)(a) of the said Ordinance sentenced the appellant to one year imprisonment. On appeal, which was allowed, it was held inter alia that it is only when an African Court has information as to an offender's character 61 62
(1960) EA 66. (1962)EA682. Page 304 of 382
and antecedents and is of the opinion that greater punishment should be imposed than the court has power to impose that the African Court should commit an offender to a subordinate court of the first class. Therefore, one agrees with the decision of the East African Court of Appeal in Mdirango Juma –vs- R63 when dealing with the powers of a court that:
"The power to commit ... is only exercisable if the subordinate court is of the opinion that the character and antecedents' of the offender are such that greater punishment should be inflicted than the subordinate court itself could inflict; the criterion is not the gravity of the offence of which the offender stands convicted.64
It is required further that the court to which the offender has been committed should ask him to either deny or admit his previous convictions. This is rested upon the decision of Sachdeva –J- in Patrick Kanja Muguku –vs- R65, the appellant and two others had jointly been charged before the second class Magistrate at Kikuyu with bar-breaking thereby committing a felony contrary to section 306(a) of the Penal Code. The appellant was convicted and committed to the Senior Resident Magistrate for sentence. The S.R.M sentenced him to two years' imprisonment with five strokes. No inquiries were made regarding his previous convictions by among other things not giving the appellant a chance to deny or admit such previous convictions. The High Court quashed both the sentence and conviction and Sachdeva -J- noted in his ruling that;
63 64 65
(1953)20 E.A.C.A 190. Ibid at 191. Cr.app no.397 of 1983. Page 305 of 382
“... when a convict is committed to a higher court for sentence, it is incumbent upon that higher court to put his record to him again and ask him to deny or admit his previous convictions...”
Before passing a sentence a court of law will examine the accused antecedents and his/her mitigation among other factors.66
66
Asentencing court may be lenient to a convicted person on the ground that he is a first offender. Page 306 of 382
CHAPTER SIXTEEN
CONTEMPT OF COURT PROCEEDINGS
A. INTRODUCTION The law of contempt exists for the purpose of safeguarding the administration of justice. In Kenya the law applicable in contempt is the law for the time being applied by the High Court of justice in England courtesy of section 5(1) of the Judicature Act. In England, contempt is referred to as scandalising the court and is defined as:
"Any act done or writing published which is calculated to bring a court or a judge into contempt, or to lower his authority, or to interfere with the due course of justice or the lawful process of the court. Thus scurrilous abuse of a judge or court or attacks on the personal character of judge are punishable as contempt67.
Section 121 of the Penal Code Cap. 63 Laws of Kenya makes provision for offences relating to judicial proceedings and the punishment to be imposed but is silent as to whether they refer to contempt of court. However, section 121(3) states that the powers thereunder are additional to the power of the High Court to punish for contempt of court. It can be deduced from this that there are separate provisions on contempt of court. When a court "takes cognizance" of an offence under the provisions of section 121(1) of the Penal Code, the court should frame and record thesubstance of the charge, call upon the accused person to show cause
67
Halsbury's Laws of England Vol.7 4th Ed. pp.27. Page 307 of 382
why he should not be convicted upon that charge and give him a fair opportunity to reply. In every such case the record should show that this procedure has been followed and should contain an adequate role of the accused person's reply, if any, and the courts decision. This was held in the case Joseph Odhengo s/o Ogongo v R.68
B. CONTEMPT OF COURT IN CRIMINAL PROCEEDINGS
Contempt of court may be classified either as
a)
Criminal contempt consisting of words or acts obstructing or tending to obstruct or interfere with the administration of justice or
b)
Contempt in procedure otherwise known as civil contempt consisting of disobedience to the judgments, orders or other process of the court and involving a private injury.
C.
CRIMINAL CONTEMPT
Criminal contempt is punishable by imprisonment or a fine or by an order to give security for good behaviour. Any court has inherent jurisdiction to punish criminal contempt by summary process of committal. Summary process is arbitrary and unlimited and must be exercised with the greatest caution. There are certain qualities that are characteristic of contempt of court for instance privilege is not allowed, execution can be carried out by force, discharge from custody may be made conditional on payment of costs and sequestration is inapplicable.
68
(1954) 21 E.A.C.A. Page 308 of 382
D. CONTEMPT IN THE FACE OF THE COURT
The conduct amounting to contempt of court does not have any defined boundaries and it is not necessary that the incident takes place in a court of justice. Any word spoken or act done in the precincts of the court which obstructs or interferes with the due administration of justice or is calculated to do so amounts to contempt of court. It is also unnecessary that the act/word be done/published wholly or partly in a court room itself nor the contempt should be within the knowledge of the judicial officer dealing with the contempt; examples include: -
Assaults committed in court during proceedings either on the presiding officer or a witness giving evidence or counsel or any other officer of the court;
-
Insults to the court when sitting or insulting behaviour directed to the presiding officer
or counsel shown either by language or
manner; -
Interrupting court proceedings wilfully;
-
Contempt by witnesses by refusing to be sworn or after being sworn, refusing to answer questions or prevaricating or remaining in court after being ordered to go out;
-
Contempt by litigants or counsels in language or behaviour which is outrageous or scandalous or which is deliberately insulting to the court.
E. CRIMINAL CONTEMPT OUTSIDE COURT Criminal contempt refers to words spoken, published or acts done outside the court and intended or likely to interfere with or obstruct the fair Page 309 of 382
administration of justice. Some examples include: -
acts in abuse of the process of the court;
-
acts in breach of duty by persons officially connected with the court or its process;
-
Comments on the character of an accused intended to influence judges/Magistrates or prejudice a fair trial, for instance, publishing a criminal record of an accused before trial;
-
Comments on pending criminal proceedings which prejudges merits of the case or which imputes guilt or asserts innocence of a particular accused. Publication before trial of what purports to be the defence to be put forward by an accused may also amount to criminal contempt as was illustrated in the case of R –vs- Makali & 3 Others69. The accused were charged with contempt after reporting that the judgment delivered in the case reeked of state interference.
A court can order that no reports of a court proceedings be published until the proceedings have finally been determined. Any report made in defiance is punishable ascontempt of court even if it is fair and accurate.
F.
PURPOSE OF PUNISHMENT The punishment is inflicted not for the purpose of protecting either
the court as a whole or the individual judges/Magistrates of the court from repetition, of the attack, but for protecting the public, especially those who either voluntarily or by compulsion are subject to the jurisdiction of the court, from mischief they will incur if the authority of the tribunal is
69
Criminal App. No. 4 & 5 of 1994 -The accused were fined KShs. 500,OOO/- or in default imprisonment. See also the earlier case R v Wangari Muta Mathai & Others, Criminal Application No. 53 of 1981, High Court, Nairobi, (unreported). In this case the con'temnor having lost her appeal in a divorce case on the grounds of adultery gave an interview to a Viva magazine (now defunct) alleging that the court was corrupt or incompetent. Page 310 of 382
undermined or impaired. The power to punish for contempt is not and has never been a secret weapon of the courts. It is known or ought to be known by the public that courts do possess that power and in appropriate and necessary circumstances will exercise it. That power resides in the court and any judge of the court can exercise it unless a particular judge(s) of that court has done something which makes him unsuitable to act on the matter like being involved in efforts to bring prosecution or drafting and approving the charges. Criticism of the judges conduct or of the conduct of the court even if strongly worded is not contempt provided it is fair, temperate and made in good faith and is not directed to the personal character of the judge or to the impartiality of a judge or court. Lord Russell of Kiloween in the case of R vs Cray said:
"Judges and courts are alike open to criticism, and if reasonable argument or expostulation is offered against any judicial act as contrary to law or public good, no court could or would treat that as contempt of court.”70
The courts need to balance cases of contempt to maintain its authority with the right to freedom of speech.
G. PERSONS LIABLE The holder of the office of the President is exempted from compliance with the contempt of court law as per the provisions of section 14 of the Constitution which grants him immunity from criminal or civil 70
(1900)2QB36 Page 311 of 382
proceedings.
In all democracies, courts announce that they are prepared and do punish those who commit contempt of court no matter how high they are. An English Judge made this pronouncement;
"I wish to make it plain that in my opinion there is no more important duty which attaches to the Judges Division than that of looking after the members of His Majestys' subjects and their tights. I am speaking only for myself, but if any case is brought before me hereafter in which any person. I care not how high his position or how great his fame be found to have interfered with that right of one of His Majesty’s subjects, I think I should have no difficulty in putting in force with the assistance of the other members of this division the great powers of this Kings' Bench Division of imprisoning such a person for contempt of court.”71 Editors, newspaper proprietors, publishers are persons liable.72They have a defence by proving beyond reasonable doubt that he did not know or had no reason to suspect that the proceedings were pending or imminent. The distributor can also state that at the time of distribution he did not know that it contained any such matter and had no reason to suspect. Onus of proof is on the defendant. Interference with persons over whom the court exercises jurisdiction
71 72
Lord Devlin, Trial by Jury, (Steven and Sons 1956) P.48. In the case of R –vs- David Makali & 3 others the Publisher of 'The People', (a Kenyan weekly paper) - Independent media services was found guilty of contempt and fined a sum of KShs, 500,000/-. See note 3 (Supra). Page 312 of 382
is also treated as contempt. Examples include;
(i) Wards of Court No important step in the child's life without consent of court can be taken for instance marrying the ward. Such actions shall be treated as contempt.
(ii) Mental Disorders Acts in relation to persons suffering from mental disorders for instance in relation to their property without consent of court is treated as contempt.
H.
APPEAL FROM ORDER
The right of appeal lies at the instance of the defendant. As in other cases the proper procedure shall be followed in matters relating to criminal appeal. Notice of appeal must be served on a proper officer.
I. EXECUTION AND DISCHARGE An officer may after a notice, break upon an outer door to execute it. Privilege from arrest cannot be claimed when orders for contempt are being executed. A contemnor is supposed to be treated under special prison rules not to be put in association with convicted persons nor compelled to wear prison dress and should be allowed to send and receive letters subject to such conditions directed by the authority. He can be discharged either after the expiry of term for imprisonment or on payment of a fine or on orders given by the trial court.
Page 313 of 382
CHAPTER SEVENTEEN
APPEALS
A. INTRODUCTION After conviction and sentence the prisoner may appeal against the sentence or conviction or both. The right to appeal is a creature of the statute and is governed by the Criminal Procedure Code. However to properly appreciate the Kenyan position reference to the English history is germane. Prior to 1957 the right of appeal by an aggrieved party to a superior court was by way of case stated1. This method entailed an application by an aggrieved party to the trial court to state the case for the High Courts opinion. In the event that the trial court declined to state the case the aggrieved party would apply to the High Court for an order of mandamus compelling the trial court to state the case. Appeal by way of case stated delimited arguments to points of law to preclude the superior court in exercising this appellate jurisdiction from examining evidence de novo. Unlike the approach via 'case stated’ an appeal is a creature of the statute. Appeals may be divided into two broad categories, namely;
a)
Appeals from subordinate courts; and
b) Appeals from the High Court to the Court of Appeal.
B. APPEALS FROM SUBORDINATE COURTS
1
Orfield Lester, Criminal Procedure from Arrest to Appeal", (Connecticut Greenwood Press, 1973) (P.494). Page 314 of 382
The Criminal Procedure Code provides that a decision of a subordinate court of the first or second class may be appealed against to the High Court. However, if the decision is still upheld, whether wholly or partly, the aggrieved party with the leave of the High Court, may appeal to the High Court2. Such appeals to the High Court may be on matters of fact as well as of law.3 The relevant question here is what amounts to a matter of law and what amounts to a matter of fact. A judicial exposition of this issue may shed some light on it, and the case of The Attorney-General -vsMarakaru4 is helpful. The judicial significance of this case is what is meant by a question of fact and a question of law. Further it states what an erroneous decision in law is. It was said that a decision is erroneous in law if it is one to which no court could reasonably come to. This idea is however not res integra5 as it had infact received judicial consideration in the case of Bracegirdle –vs- Oxley6 where it was held that if justices come to a conclusion to which no reasonable bench of Magistrates could come to, the High Court may interfere because the position is then the same as if the justices had come to a decision of fact which there is no evidence to support. In this case , the issue of questions of law and fact were given elaborate judicial treatment by Denning J (As he then was) he said:
"The question whether a determination by a tribunal is a determination in point of fact or in point of law frequently occurs. On such a question there is one distinction that must always be kept in mind, namely, the distinction between
2 3 4 5 6
Section 347(1) Criminal Procedure Code (Cap 75). Section 347(2.) Criminal Procedure Code (Cap 75). (1960)EA, 484. Point not formally decided in any court of law. (1947)1 All E.R 126. Page 315 of 382
primary facts and conclusions from those facts. Primary facts are facts which are observed by the witness and proved by testimony; conclusions from those facts are inferences deduced by a process of reasoning from them. The determination of primary facts is always a question of fact. It is essentially a matter for the tribunal who sees the witness to assess their credibility and to decide the primary facts which depend on them. The conclusions from these facts are sometimes conclusions of law. In a case under the Road Traffic Act, the question whether a speed is dangerous is a question of degree and a conclusion on a question of degree is conclusion of fact. The court will only interfere if the conclusion cannot reasonably be drawn from the primary facts...7"
The court always has to ask the question whether the determination is one which could be reached by a reasonable tribunal applying its judicial mind. Thus, it was lucidly spelt out in the case of Edwards (Inspector of Taxes) -vs- Bairstow and Another8 that:
"... although an appellate court may allow an appeal from the commissioner's determination only if it is erroneous in law, yet, where a case stated shows on the fact of it no misconception of law, if it should appear to the appellate court that no person, if properly instructed in the law and acting judicially, could have reached that particular
7 8
Ibid at 130. (1953) 3 All E.R 48. Page 316 of 382
determination, the court may proceed on the assumption that a misconception of the law has been responsible for the determination".
The above helps to highlight some of the crucial points to be considered when inquiring whether a matter is one of fact or law. A finding that no court could have come to is an error of law.
C. COMPETENCE OF APPFAL UNDER S 348(A) Under section 348 (A) of the Criminal Procedure Code, 'when an accused person has been acquitted on a trial held by a subordinate court, or where an order refusing to admit a complaint or formal charge or an order dismissing a charge has been made by a subordinate court the AttorneyGeneral may appeal to the High Court from the acquittal or order on a matter of law. This section is relevant to the above discussion on questions of law and fact in that it deals with matters of law. Once this is understood, the issue will have been resolved because the remainder will be matters of fact. This section has been considered by the High Court of Kenya. In R vs- Wachira9 the respondent was charged with forging a vehicle licence and logbook and will) altering the licence. The prosecution case was that dates on those documents had been altered and the triplicate licence was produced. The Magistrate acquitted the respondent, holding that there was no case for him to answer. The appellant appealed and the High Court ruled that a finding that there is no case to answer is a finding of law from which an appeal lies. Whether the finding of no case to answer was a finding of law or fact was the contended issue, since an appeal lies under section 348(A) of Criminal Procedure Code by the Attorney-General only
9
(1975)EA262. Page 317 of 382
on a matter of law. It was noted by Hancox and Trevelyan JJ that it has been settled for long that sufficiency or otherwise of the evidence at the close of the prosecution case, as to require an accused to make his defence thereto, is a matter of law. The High Court also had occasion to consider the said section in the case of R -vs-kitdasa10. In this case the appellant appealed against the acquittal of the respondent contending that the Magistrate had not come to proper findings on the evidence before him and that by his failure he had erred in law, thereby giving a right of appeal. The High Court at Nairobi presided over by Hancox and Trevelyan JJ held that the Magistrate came to a conclusion on the evidence to which no court properly directing itself could have come and this was error in law. The case was therefore remitted to the Magistrate to prepare a fresh judgment without hearing further evidence. Their Lordships found no reason to depart from the rationale provided by the earlier case of R –vs- Mallo11, in. that if the subordinate court has clearly erred on law, it has thereby precluded itself from giving any or adequate-consideration to the rest of the evidence. In other words, having administered to itself an erroneous direction on the law, it is prevented from coming to a proper conclusion on the facts.
D.
LIMITATION OF TIME
Section 349 of the Criminal Procedure Code provides that;
"An appeal shall be entered within fourteen days of the date of the order or sentence appealed against.12
10 11 12
(1973)EA368. (1958)EA11. Chapter 75 of the Laws of Kenya Criminal Procedure Code. Page 318 of 382
The proviso to this section allows an appeal to be entertained even though it is time barred, if the appellant has good grounds or reason for the delay. One of the reasons is that of the appellant's or his advocate's inability to obtain, a copy of the judgment or order appealed against and a copy of the record, within a reasonable time of applying to the court there. The court in Haining and Others –vs- R13 had the occasion to comment on the issueafter having been sentenced to imprisonment by the High Court the applicants applied informally to the sentencing judge for leave to appeal, which leave he granted. On the appeal coming on for hearing, it was struck out as incompetent. The appellant thereafter made his application for leave, to appeal and to appeal out of time, submitting that the mistake of their advocates should not prejudice them. The respondent argued that leave should first have been sought from the High Court. Lutta J.A held that leave to appeal cannot be granted other than on a formal motion and that under the circumstances, sufficient reason had been shown for granting leave to appeal out of time. The application was allowed. However, the court pointed out that although there was sufficient reason for the appeal, the judge had improperly granted, leave to appeal as he had done so upon an informal motion. It is noteworthy that no appeal is allowed where an accused person, has been convicted on his own plea of guilty. However, an appeal, may be even in such cases but only to determine the legality of the sentence14.
E. SUMMARY REJECTION AND PRECISION OF THE APPEAL Section 352 of the Criminal Procedure Code allows for an appeal to
13 14
(1971)E.A421. Section 348 - In the case of David Mbewa Ndeda v Republic Criminal Appeal No. 1 of 1989 the Kenyan Court of Appeal composed of Justices of Appeal Gachuhi, Masime (Now deceased) and Omolo (then Ag. Judqe of Appeal) while confirming the statutory position stated that 'the plea mus'l have been unequivocal citing an earlier case of Mains vK (1973)EA 445 16. EA 380. Page 319 of 382
be summarily dismissed. There are various grounds on which such a dismissal may be ordered. A summary dismissal without the appellant or his advocate being heard. Arnold Pudo s/o Aranda –vs- R15 considered, the issue and the court' of Appeal's decision thereon forms the 'locus classicus' on it. The appellant was convicted by a Magistrate of shop breaking and theft and was sentenced to six years' imprisonment. The supreme court summarily rejected the appellant's appeal against conviction and sentence under section 352(2) of the Criminal Procedure Code, without the appellant
OK
his advocate being heard in support of it. On a
second appeal it was contended that the supreme court was not entitled to summarily reject an appeal under section 352(2) except where the grounds of appeal are that the conviction is against the weight of evidence, or that the sentence is excessive whereas in the instant case a ground of appeal was that "the Magistrate erred, both on a point of law and facts". It was held, in dismissing the appeal, that: Firstly, the ground of appeal, that "the Magistrate erred on both point of law and facts" was too vague to constitute such a ground of appeal as to take it (appeal) outside section 352(2) and in view of the mandatory requirements of section 350(2) of the Criminal Procedure Code, the supreme court quite properly ignored it as being no proper ground of appeal, at all and would have been within its rights to have struck it out. Secondly, it was held that since the remaining grounds of appeal, admittedly fell within, section 352(2), the Supreme Court had jurisdiction to dismiss the appeal summarily.
Section 352(2) empowers the court to reject an appeal summarily if, and only if, the appeal is brought on the ground "that the conviction was against the weight of evidence; or that the sentence is excessive."
15
(1960)E.A380. Page 320 of 382
Various other cases have dealt with the issue. The cases of Karioko s/o Gichohi –vs- R16; Lighton alia Magege –vs- R17 and Mulakh –vs- R18 were likewise concerned with the summary rejection of appeals under section 352(2) of the Criminal Procedure Code and in each case, the Court of Appeal in allowing the appeals held that a first appeal may be rejected summarily under the relevant section without the appellant, or it's advocate being given an opportunity of being heard, only if the memorandum of appeal contains no ground of appeal other than that the conviction is against the weight of evidence or that the sentence is excessive. In all the above three cases, the other grounds of appeal which took the appeal, outside the section providing for summary rejection of appeals were specific, the respect in which the trial court was alleged to have erred being stated with particularity. However, in the Pudo s/o Aranda case, it was otherwise. It was not only too vague to say that the Magistrate erred on point of law and of fact but it was inconsistent with the statutory requirement regarding particularity, and therefore the memorandum was too wanting in precision to constitute a proper ground of appeal so as to take it outside the section providing for summary rejection.
The Criminal Procedure Code requires that:
"Every petition of appeal shall... contain particulars of the matters of law or fact in regard to which the subordinate
16 17 18
(1950)17 E.A.C.A 141 (1951)18 E.A.C.A 309 (1954)21 E.A.C.A 383 Page 321 of 382
court appealed from is alleged, to have erred...19 "
Therefore, if the memorandum raises no specific question or point of law or fact, it will squarely fall within, summary rejection. Intact, courts deprecate the indiscriminate use of a form of memorandum in terms so general as to he valueless considered as grounds of appeal. It has been pointed out by the court of Appeal in Rutehendra s/o Mutemba –vs- R20 that;
"... such ... must be intelligently applied to the facts of the case as revealed by the evidence and not degenerate into drafting a stereotyped form of memorandum..."
This underscores the importance of clarity and relevance of the ground(s) of an appeal to the adduced evidence of the lower court from which the intended appeal is coming. Failure to observe this may seem an otherwise meritorious appeal being dismissed summarily. The case of Kuyate –vs- R21 has also discussed when summary procedure is applicable on appeal to the High Court. The court observed that an appeal can only be summarily dismissed if the court considers that the evidence before the lower court leaves no reasonable doubt as to the accused's guilt and that the appeal is frivolous or without substance. It is noteworthy that an improper dismissal of an appeal under the summary procedure is an appealable error of law. In Kamau –vs- R22 the appellant was convicted of robbery with violence, on the evidence of a 19 20 21 22
Section 350 Criminal Procedure Code (Cap. 75). (1953)20 E.A.C.A 276. (1967)E.A815. (1975)E.A139 Page 322 of 382
single identifying witness who saw him in the light of an electric bulb and identified him six weeks later. Another eye witness failed to identify him. There was no corroborative evidence. The appeal to the High Court was summarily rejected. On further appeal to the Court of Appeal it was held that whether a conviction on the identification of a single witness can be maintained is a question of mixed law and fact the appeal should not have been summarily dismissed, and the appeal, to the Court of Appeal was allowed.
F. SUMMARY ALLOWANCE OF APPEALS When an appeal is lodged against conviction a judge of the superior court will peruse the entire record including the grounds as set out in the Memorandum of Appeal. If upon perusal of the record the judge is of the opinion that the conviction cannot be supported then pursuant to section 352A of the Criminal Procedure Code, if the Attorney General has also informed the court in writing that he does not support the conviction, the judge may summarily allow the appeal.
G. ADMISSION OF ADDITIONAL EVIDENCE ON APPEAL The law prohibits the admission of new evidence on appeal. It is required that only the evidence which, was adduced at the trial should he entertained. However, the law recognizes that sometimes material evidence may not have been available at the time of the trial. In such cases, it has allowed new evidence to be produced in the court exercising appellate jurisdiction23. This is left to the discretion of the court. The discretion should however be exercised along well-defined guidelines and which guidelines must be those that are well settled. The said principles were laid
23
See section 358 Criminal Procedure Code (Cap 75). Page 323 of 382
down by the Court of Appeal for East Africa in the case of Elgood –vsR24. The appellant Doctor was charged in the supreme court of Seychelles with several counts of procuring for women drugs knowing that the drugs were intended to be used to procure miscarriages contrary to law. He was convicted upon medical evidence given, for the prosecution by three doctors and inferences drawn from a statement made to the police by the appellant himself. Medical evidence was also given for the defence by three doctors. There was considerable disagreement between medical witnesses, only one of whom had special qualifications in the particular field concerned, and that one had only limited specialist knowledge. On appeal the appellant applied to call additional evidence, which was not available in Seychelles, from a highly qualified and experienced specialist in obstetrics and gynaecology. This evidence was admitted, and it was to the effect that the treatment given by the appellant was perfectly legitimate therapeutic treatment which would not possibly lead to an abortion. The appeal was thus allowed and in its ruling, the court made the following observation, namely, the principles upon which additional evidence may be admitted:
1.
The principles upon which an appellate court in a criminal case will exercise its discretion in deciding whether or not to allow additional evidence to be called for the purposes of the appeal are;
a)
the evidence that is sought to be called must be evidence which was not available at the trial;
24
b)
it must be evidence relevant to the issues;
c)
it must be evidence which is credible in the sense that it is
(1968) E.A 274. Page 324 of 382
well capable of belief and d)
the court will, after considering that evidence, go on to consider whether there might have been a reasonable doubt in the mind's of the jury as to the guilt of the appellant if that evidence had been given together with the other evidence at the trial. (For this particular ruling, the English case of R -vsParks25 was applied).
2
That it is in very exceptional cases that the Court of Appeal will admit additional evidence, or permit it to be called.
3
An affidavit in support of an application, to admit additional evidence should have attached to it a proof of the additional evidence sought to be given.
The court applied these principles as earlier pronounced in the R –vsParks case26. In this case Parker, C-J noted:
"Those principles can be summarized in this way; First the evidence that is sought to call must be evidence which was not available at the trial. Secondly, and this goes without saying, it must be relevant to the issues. Thirdly, it must be evidence which is credible evidence in the sense that it is well capable of belief; it is not for this court to decide whether it is to be believed or not, but it must be evidence which is capable of belief. Fourthly, the court will after considering that evidence go on to consider whether there might have been a reasonable doubt in the minds of the jury as to the guilt of the appellant if that evidence had been 25
(1961)3 All E.R 633.
26
Supra. Page 325 of 382
given together with the other evidence at the trial".
As noted above it is in very exceptional circumstances that an appeal court will admit additional evidence. It will not take such further evidence for the purpose of filling in a gap in the prosecution case. The case of Sirasi –vs- R27 elucidates this. However, the appellate court may call for additional evidence to elucidate evidence already on record (Yakobo –vsR28). These are only guiding principles and there are no strict hard and fast rules as each case must depend on its own peculiar circumstances and conditions.29 An appeal court is likely to take and admit additional evidence in circumstances where there is a reasonable possibility that the additional evidence could afford ground for allowing an appeal. A person may be admitted to bail pending appeal as granted, by section 357 of the Criminal Procedure Code. The Criminal Procedure Code provides that appeals from subordinate courts shall be heard by two judges of the High Court, except when in any particular case the Chief-justice directs that the appeal be heard by one judge of the High Court. If the opinion of the court is equally divided, the appeal is to be reheard before three judges30.
H.
APPEALS FROM THE HIGH COURT Appeals from the High Court lie to the Court of Appeal. A party to
an appeal, from a subordinate court may appeal against a decision of the High Court in its appellate jurisdiction on a matter of law. The court of Appeal is not to hear an appeal on a matter of fact. Its noteworthy that severity of a sentence is a matter of fact and therefore an appeal does not 27 28 29 30
(1936)3 E.A.C.A. 40. See also Rule 29 of the Court of Appeal Rules. (1945)12 E.A.C.A. 60 Mohammed Hussein -vs- Price Controller (1943)10 E.A.C.A 72 Section 359 Criminal Procedure Code (Cap 75). Page 326 of 382
lie to the Court of Appeal.31 However, the Court of Appeal's jurisdiction to entertain an appeal from the High Court is subject to various other limitations. The Court of Appeal's jurisdiction is ousted with regard to a refusal by the High Court to admit an appeal out of time under section 349 The above decision by the High Court is final.32
I. CONSTITUTION OF THE COURT IN ITS APPELLATE JURISDICTION The Court of Appeal should be properly constituted so that a fair hearing is afforded to both the respondent(s) and the appellant(s). The importance of a proper constitution, of the court was understood in Fazal Tyabali and Another –vs- R33. The appellants who had been convicted by the Resident Magistrate at Mombasa appealed to the Supreme Court. The two judges who heard their appeals were unable to agree, and so under section 358 of the Criminal Procedure Code, the appeals were re-heard by three judges who dismissed the appeals. The appellants then appealed to the Court of Appeal on the sole ground that the court which re-heard the appeals was improperly constituted because it included one of the judges who had sat on the court which first heard their appeals, and it was argued that natural justice demanded that either both the judges who sat on the hearing of the appeal should so sit. The court held that it was not prepared to say that the decision, of the appellate court on the rehearing was invalid. Per Curiam it was noted by the court;
31 32 33
Section 361(l)(a) Criminal Procedure Code (Cap 75). Section 361(8) Criminal Procedure Code (Cap 75). (1959)E.A 29,, It is important to note that by parity of reasoning, this colonial position is true of the position in Kenya today as found under the present section 359(2) of the Criminal Procedure Code Chapter 75 of the Laws of Kenya. Page 327 of 382
".... we think that it may be better, for the sake of appearance,
where
this
is
possible
and
not
very
inconvenient, that both judges who first sat, or neither, should sit on the re-hearing pursuant to section 358..."
Section 359 of the Criminal Procedure Code provides that appeals from subordinate courts shall be heard by two judges of the High Court except where in any particular case the Chief-Justice shall direct that the appeal be heard by one judge of the High Court. It further provides that if on the hearing of an appeal the court is equally divided in opinion the appeal shall be re-heard before three judges. The law does not prescribe how the court which re-hears an appeal pursuant to section 359 is to be constituted, or which disqualifies either or both of the judges who sat on the first hearing. In the above case, the court of Appeal ruled that the question of natural justice notwithstanding, the fact that one of the judges who first heard the appeal sat on the rehearing of the appeal does NOT invalidate its decision. In delivering the court's judgment, Sir Kenneth O'Connor re-asserted Darling J’s view viz:
"... it is a great mistake to suppose that the trial judge would be inclined to set up his own view against the opinions of his brethren "or" to fight for his own hand34".
Whether Darling's -J view is plausible, is a matter that needs to stand and contest modern judicial sanctity in which questions of natural justice are being given their proper and imperative perspective, Therefore, if natural justice is to have any meaning, the two judges who sat on the first appeal
34
In R -vs- Bennett and Newton, 9 Cr. App. R 146. Page 328 of 382
should either sit again (both) so that there is "equal bias" other than tilting the "balance of bias" by having only one of the two to resit. It is however much better that both do not re-sit again. These are the strange imperatives which are required by natural justice which arguably ought to be central, in every trial or session in which the guilt of a person is determined.
]. APPEAL IN THE ABSENCE OF WRITTEN RECORDS Sometimes, the Court of Appeal may be confronted with an appeal where no written records of the lower court's decision are available. This is a difficulty which the Criminal Procedure Code has not focused sharply on but the courts have filled the lacunae. The course to be followed where no such records are available was given by the East African Court of Appeal inn Misana –vs- R35. The appellant, formerly a District Magistrate was convicted by a Resident Magistrate of theft. He appealed to the High Court and the judge, ordered that additional evidence be taken, the judge again considered the appeal, and made a note that judgment would be delivered later, the 6th of August 1966. That judgment was never delivered. On November 30, 1966, Platt J considered the matter and, since it appeared that on 6th August 1966 the Judge had "verbally" announced, that the appeal was dismissed and reasons would be given later, allowed the appellant to appeal to the court of Appeal. In February 1967, the Court of Appeal considered the papers and ordered that the proceedings before the trial Magistrate be copied to form part of the record. Subsequently the Court of Appeal in the absence of the appellant further considered, the appeal and ordered, a re-hearing before the High Court. The reasons for the re-hearing were given as that there being no written record of the decision of the High Court nor any reasons for the decision, the only proper cause
35
(1967)E.A334 Page 329 of 382
was to remit the matter to the High Court for the original, appeal to be reheard. This was in accordance with the principles behind the decisions in the two cases of Zaver –vs- R36 and Yosefu Muwonge and two others –vsUganda37 where the Court of Appeal ordered a re-hearing in cases where the record or an important part thereof had been lost.
K.
CONCLUSION From the above, it is clear that there are various principles upon
which the appellate court will allow or dismiss an appeal. The overriding principle is that if a failure or miscarriage of justice has been occasioned, then an appeal would, be allowed. A simple procedural error that is not of such. Great weight as to occasion a failure of justice cannot warrant the appeal being allowed. Thus, the Court of Appeal in Murimi -vs- R38 noted that it does not reverse a conviction on account of any error by the trial court unless the error has intact occasioned a failure of justice. It must however be understood that procedural propriety is very important and that the rules of procedure are framed to provide a fair trial. A breach of the procedural rules therefore raises a presumption that there has been an unfair trial ,However, trivial defects which have not occasioned a failure of, or miscarriage of justice will not be enough ground of appeal. There are commonly known grounds of appeal. These include:
i)
Defects in the Charge.
ii)
Wrongful admission of evidence.
iii)
Wrongful exclusion of evidence.
iv)
Absence of Corroboration.
36
(1952)19 E.A.C.A 244. Cr. App. No. 86 of 1965 (unreported).
37 38
(1967) E. A 542. Page 330 of 382
v)
Misdirection as to the law or procedure applicable to the case in question.
vi)
Inadequate interpretation: It should be noted here that a word has no absolute meaning. Its meaning is relative to the context. Thus in Shire39 the case depended on the interpretation, of the word meat under the Eldoret Municipal by-laws. The High Court held that the word meat includes meat: and offal of any animal intended for human consumption irrespective of whether it has first to be cooked or not.
vii)
Where there has been a miscarriage of justice due to an error of procedure.
viii) A decision which is unreasonable and cannot be supported having regard to the evidence adduced. ix)
An unlawful sentence.
These are some of the more common grounds of appeal, but the list is not closed. As the legal system develops, one would hope that more grounds will be continually added so that an aggrieved party has all the legal machinery at his service.
39
(1967)E.A39. Page 331 of 382
CHAPTER EIGHTEEN DIRECTIONS IN THE NATURE OF HABEAS CORPUS A.
INTRODUCTION Habeas Corpus applications in Kenya are made under section 389 of
the Criminal Procedure Code but a proper appreciation, of its dynamics demands a look at the English history. Habeas Corpus belongs to the province of prerogative writs whose history is traceably within the history of common law. The writ of habeas corpus is one of the most celebrated writs in the English law. There are various types of the writ as used in English, legal systems. For example, the writ of ‘habeas corpus ad subjiciendum’, which is commonly known as the writ of habeas corpus and is a prerogative process for securing the liberty of the subject by affording an effective means of in immediate release from unlawful or unjustifiable detention, whether in prison or private custody. By it the court, at the instance of a party aggrieved, commands the production of that subject, and inquire into the cause of imprisonment. If there is no legal justification for the detention, the party is ordered to be released. Release on habeas corpus is not an acquittal 1 and further the writ cannot be used as a means of appeal2. An other writ, 'habeas corpus adrespondendum may be issued by the court. The object of this writ is to bring up prisoners who are detained in custody under civil or criminal process before Magistrates or courts of record for trial or examination on any oilier charge. The Criminal Procedure Code has provided directions and given power to the High Court to issue directions of the nature of habeas corpus. The Criminal Procedure Code at section 389 has empowered the High
1
2
SaundersJohn, Words and phrases legally defined", 2nd Ed, London, Buttersworths,1969 Vol.2 pp.341. II Halsbury's Laws, 3rd ed. 24. Page 332 of 382
Court to issue the directions. There are various reasons which may necessitate the issuance of the directions as discussed below. The writ of 'habeas corpus' provides an efficacious means of testing the validity of a person's imprisonment or detention. Nominally sought by the crown, the remedy is in reality freely available to any prisoner and to any one acting on his behalf, without regard to nationality3. Thus an alien detained pending deportation can apply for 'habeas corpus' to question the validity of the deportation order for example by alleging that what is asserted, to be lawful deportation is in fact unlawful extradition at the request of a foreign government. This was in fact the situation in R -vsHome Secretary ex parte Soblen4.
B.
TERRITORIAL AMBIT OF HABEAS CORPUS The common law does not recognize, the effectiveness of judicial
process outside the territorial jurisdiction, of the court and it is only by statute that a court has power to exercise jurisdiction, over anyone found beyond its territorial limits. Habeas Corpus is one of the prerogative writs, and rather than raise an issue between two parties which is to be decided by a court having jurisdiction over them (both), it is supposed to issue on the part of the state so that it can have an account of any of its subjects who are imprisoned. The case of Witherley –vs- Witherley5 is in point. The writ is said to depend not on the ordinary jurisdiction of the court for its effectiveness, but upon the authority of the sovereign over the subjects. While this does not in itself make it possible to sue the writ to a foreign country, even where the respondent is a subject of the crown6, it does give
3 4 5 6
Wade, H.W.R, Administrative Law, 3rd ed, Oxford, Clarendon Press, 1971 (Chapter 4.) (1963)2 QB243. (1608)2 Rolle's Abridg. 69. R -vs- Pinckrey (1904)2 K.B 84 - Holding that the writ could not even be issued and allowed to lie until the respondent returned. Page 333 of 382
the writ an extraordinary territorial ambit7. At common law, all the prerogative writs had this broader ambit1 and were said to include all parts of the Queen's dominions8. Thus in England, the power to send the writ outside England was based on the common law. However, the 1862 Habeas Corpus Act greatly curtailed the power9.
C. HABEAS CORPUS UNDER KENYAN LAW In Kenya, section 389(1) confers the High Court with the power to entertain, applications for Habeas Corpus. It provides that; "The High Court may whenever it thinks fit direct”
a)
that any person within, the limits of Kenya be brought' up before the court to be dealt with according to law;
b)
that any person illegally or improperly detained in public or private custody within those limits be set at liberty;
c)
that any prisoner detained in a prison, situated within those limits be brought before the court to be there examined as a witness in any matter pending or to be inquired into that court;
d)
that any prisoner so detained be brought before a court martial or commissioners acting under the authority of a commission from the President for trial to be examined touching any matter pending' before the court martial or commissioners respectively;
e)
that any prisoner within those limits be removed, from one custody to another for the purpose of trial; and.
f)
8 9
that the body of a defendant within those limits be brought in on a De Smith S. A. "Judicial Review of Administrative Action" pp.'517 3rd ed. London. Stevens 1973. PP.514 Witherley-vs-Witherley (1608)2 Rolle's Abridg.69. Sharpe R.J "The Law of Habeas Corpus" (2nd ed, Oxford, Clarendon press, 1989) Chapter 8. Page 334 of 382
return of cepi corpus to a writ of attachment.
A pertinent question which has arisen is whether the procedure in. habeas corpus is criminal, or civil, The question is still moot but the decision in the case of Grace Ibingira and others –vs- R10 is instructive. Sir Charles Newbold, reading the judgment of the Court of Appeal observed as follows:
That "any application for the writ of habeas corpus ad subjuciendum and subsequent proceedings would normally be civil proceedings; being criminal only if, should the applicant not be released, the immediate result would be either his trial on a criminal charge or his return to prison to serve a sentence".
The question of habeas corpus, its procedure and application has been treated differently by the courts. While on the one hand the court has seen it as a civil matter, it has at other times regarded it as a criminal matter. The colonial day case of Probat Shah11 is germane in this regard. In the case the appellant applied to the Supreme Court" for directions in the nature of habeas corpus. The appellant had not been charged, nor was it intended that he would be charged with any criminal offence, and there was, thus, no conviction after trial so as to bring into existence the right of appeal either under section 360 or 37812 of the Criminal Procedure Code. The matter arose out of the arrest, and detention of the appellant under a deportation order. The court was treated to the dictum in Lall Khan –vs-
10 11 12
(1966)E.A445. (1955)22 E.A.C.A 381 Section 378 by Act No. 13 of 1967 - Criminal Procedure Code (Cap 75). Page 335 of 382
R that so far as Kenya is concerned, the issue of prerogative writs, is by section 389(1) of the Criminal Procedure Code allocated, to the exercise of the criminal jurisdiction and not the civil jurisdiction of the Supreme Court. It was contended that although the application to the Supreme Court was in form, a criminal proceeding, it was, in substance a civil proceeding. The East African Court of Appeal held that in Kenya, the Supreme Court has jurisdiction to entertain applications for prerogative writs on earlier its criminal or civil side, according to the nature of the proceeding. It further held that no appeal lay from a judgment refusing a prerogative, writ in a criminal, cause or matter. This position, prevails even in other jurisdictions. Viscount Simon L.C in Amand-vs- Home Secretary and Another13 said:
"If, however, the application for the writ of habeas corpus is refused and
the question arises whether an appeal lies
against such refusal, a distinction must be made. If the judgment of the High Court refusing the writ is in any criminal cause or matter, no appeal lies. If it is not, an appeal is competent ... it is the nature and. character of the proceedings in which habeas corpus is sought which provide the test. If the matter is one the direct outcome of which may he trial of the applicant and his possible, punishment for an alleged offence by a court claiming jurisdiction to do so the matter is criminal”.
13
(1943) A.C 147 at 155,156, Page 336 of 382
D. APPLICATION FOR HABEAS CORPUS UNDER KENYAN LAW The Chief Justice of the Republic of Kenya is empowered under section 389(2) to make rules to regulate the procedure in cases of Habeas Corpus. Acting pursuant to the Legislatures imprimatur vide LN.474/1963 rules known, as “Criminal Procedure (Directions in the Nature of Habeas Corpus) Rules’ were made, and now applications for Habeas Corpus are sought pursuant thereto. All applications are made 'ex parte1 in. the first instance14. If an application is not dismissed at the 'ex parte' stage the judge will order issue of summons15 directed to the person in whose custody the person alleged to be improperly detained is said to be requiring him to appear in person or by advocate at a prescribed place and time to show cause why the person so detained should not be forthwith released. Under rule 7 the summons issued under rule 3 must be accompanied by all affidavits lodged in support of the application. The note also requires that the summons and affidavits be forwarded, to the Attorney General. Rule 5 requires that replying affidavits should be in duplicate. One copy shall be served on the applicant. Rule 7 permits admission of a detained person to bail pending return of summons issued under rule 2. At the hearing of one application for habeas corpus the application shall begin and the party resisting the application shall he heard with the applicant being entitled to reply16.
14 15 16
See Rule 2 and the case of Phillip Ratemo v Republic Misc. Application No. 465 of 1955. Rule 3 Rule 9 Page 337 of 382
CHAPTER NINETEEN REVISIONS A.
INTRODUCTION Revision is a power bestowed upon a court to revise the records of
an inferior court Section 362 of the Criminal Procedure Code empowers the High Court to call for and examine the record of any Criminal proceedings before any subordinate court. This it does to satisfy itself as regards the correctness, legality or propriety of any finding, sentence or order recorded or passed, and also as to the regularity of any proceedings of any such subordinate court. A Subordinate Court of the first class is also empowered to call for and examine the record of any criminal proceedings of a subordinate court of a lower class than it and established, within its local limits of jurisdiction1. If the subordinate court finds that the sentence, order or finding of the lower court is illegal or improper, or that the proceedings were irregular, it is required that the record, with its (court's) remarks thereon be forwarded to the High Court2. The powers of the High Court when exercising its revisional jurisdiction are defined by the Criminal Procedure Code at section 364. It is provided that in the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or has otherwise, come to the knowledge of the High Court, it may, if in the case of a conviction exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358 (Criminal Procedure Code) and enhance the sentence. These powers of appeal are discussed later. But if it is in the case of any other order other than an order of acquittal, it may 1 2
Section 363(1) Criminal Procedure Code (Cap 75). Section 363(2) Criminal Procedure Code (Cap 75). Page 338 of 382
alter or reverse the order.3 The High Court cannot inflict a greater punishment for the offence which in the opinion of the High Court the accused has committed than might have been inflicted by the court which imposed the sentence4. Section 364(5) states that when an appeal lies from a finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. The High Court when exercising its powers of revision has a discretion to hear or not to hear the parties either personally or through their advocates. However, the court may hear any party either personally or by an advocate5. This is so considering the requirement of section 364(2) which states:
''No order under this section shall, be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence".
All proceedings before the High Court in the exercise of the revisional jurisdiction may be heard and any judgment or order thereon may be made or passed by one judge. But if and when the court: is composed of more than one judge and the court is equally divided in opinion, the sentence or order of the subordinate court shall he upheld6. Upon revision by the High Court, it shall certify its decision or order to the Court by which the sentence or order so revised was recorded or passed 3 4 5 6
Section 364(1) (a) (b) Criminal Procedure Code (Cap 75). Section 364(5) Criminal Procedure Code (Cap 75). Section 365 Criminal Procedure Code (Cap 75). Section 366 Criminal Procedure Code (Cap 75). Page 339 of 382
and that court is to make orders in conformity with the decision so certified and where it is necessary shall amend, the record to accord with the decision7. This is briefly the procedural requirements when a court either subordinate or the High Court has to exercise revisional powers. Having so described the procedure, it is necessary to examine how courts have exercised this jurisdiction and further how the procedure, as laid in the Criminal Procedure Code has been applied.
B. REVISION IN PRACTICE One of the questions which have arisen with regard to revision is whether it is competent for the court to revise its own order made on revision, that is, if the court has revised an order is it competent for it to purport to revise that ' revision' This particular problem received judicial consideration in the Ugandan case of Kiwala –vs Uganda8. It considered whether the High Court can revise its own order made on revision. The respondent, a public servant was convicted of stealing some l0,000/= by servant contrary to section 252 of the Ugandan Penal Code, by a Chief Magistrate, and was sentenced to a fine of 5,000/- or 18 months imprisonment in default. Before this sentence was imposed the respondent by his counsel indicated that he would pay back the money which he had stolen within seven days, and this influenced the Chief Magistrate in imposing the sentence which he did. The money was never infact paid back. In the course of a subsequent application for bail pending appeal to the High Court, the judge of his own motion reduced the sentence to six months on the ground that 18 months was illegal as an alternative to a Shs. 5,000/- fine. The D.P.P then made the present application for a revisional 7 8
Section 367 Criminal Procedure Code (Cap 75). (1967)EA758 Page 340 of 382
order to enhance the sentence. It was argued that a fine of Shs. 5,000/- or six months' imprisonment in default was so inadequate as to involve a miscarriage of justice. Sir Udo Udoma C-J, held that it was competent for the judge to correct the sentence Suo Motto on the bail application. The application was allowed and the original sentence set aside and a sentence of six years' imprisonment substituted. An appeal against this order was obliged, the appellant claiming that the C-j had no jurisdiction to make this order because the matter had already been dealt with on revision. The court of appeal for East Africa allowed the appeal and held inter-alia that:
(i)
the order of the judge reducing the sentence was not made on appeal and could only have been made in the exercise of his powers of revision under the Criminal Procedure Code;
(ii)
the C-J had no jurisdiction to proceed to a further revision of the sentence as the matter had already been revised.
The general rule on which the above rests is expressed by the maxim 'INTEREST REIPUBLICAE UT SIT FINIS LITIUM', that when an act is the subject of litigation and final judgment is entered by a competent court, that is the end of the matter except where there is statutory provision for further consideration of that judgment on appeal or on revision. But once that right has been exercised and the appeal or revision heard, then again the litigation, comes to an end unless there is again more statutory provision for further appeal or revision. The Criminal. Procedure Code only provides for one revision. No provision is made for further revision or for the High Court to revise its own order of revision. The court once it has exercised its powers of revision is "functus officio" and has no authority to revise its own orders. This is further spelt out by the case of R –vs- Sironga
Page 341 of 382
and Mindo9 in which Hamilton. C-j said;
"On the other hand the capacity in which the High Court passes an order confirming a sentence has to be considered, for if it has exercised its revisional powers, I am then in agreement with the argument that it is "functus officio" and cannot subsequently revise an order so made10".
In this case it was held that an order passed by the High Court in confirmation cannot be the subject of revision, and this would be even more clearly the reason when the first order was one passed in revision. This decision has been subjected to further judicial consideration without dissent. The subsequent cases of Suleman Ahmed –vs- R11 and Michael Meshaka –vs- R12 have not had the effect of changing that position and have only given it more weight. The two cases dealt with the question, as to when an order passed in confirmation became a revisional order and on the right of appeal to the High Court. The emanating judicial pronouncements indicate that a conviction or a sentence merely confirmed remains that of the subordinate court and an appeal lies to the High Court; but where a conviction or sentence has been altered this then becomes a revisional order of the High Court and no appeal lies to the High Court, Therefore, once the High Court has made a revisional order it cannot revise it again and only an appeal can be lodged to the Court of Appeal, if such provision has been provided. One therefore agrees with the East African Court of Appeal that:
9 10 11 12
(1918)7 K.L.R 148 (1918)7 K.L.R 148 at 149. (1922)9 E.A.LR. 19. (1962)EA81. Page 342 of 382
"... once a case has been revised by the High Court, that court becomes 'functus officio’ and that the revision is final unless there is an appeal to this court [court of Appeal]...13" In the case of Michael s/o Meshaka –vs- R14 the appellant had been convicted by a Magistrate of rape and sentenced to two years imprisonment and eight strokes. Two days later, and with a view to appealing, he applied for a copy of the judgment and about the same time the relevant papers were sent to the High Court for confirmation of sentence. The sentence came before a judge for confirmation before the time allowed for appeal had expired, despite which the judge revised the finding, altered the conviction to one of indecent assault, set aside, the sentence of corporal punishment and reduced the sentence to 18 months' imprisonment. Subsequently, the appellant having duly filed his appeal, when it came before the court for hearing the judge indicated that he would be disposed to allow the appeal on the merits but was unable to entertain it because of the order made in revision by the first judge. The appellant thereupon, appealed again challenging the decision of the High. Court that it had no jurisdiction to hear the appeal. The Court of Appeal in dismissing the appeal made- the following holdings;
(i)
the order of the first judge was a revisional order of the High Court and could not be considered to be still the order of the subordinate court made in conformity with a revisional order of the High Court;
(ii)
that as no right of appeal from an order of the High Court made either in revision or in confirmation is conferred by the Criminal
13 14
Kiwala -vs- Uganda (1967)EA 758 at 762 para.c (1962)EA81. Page 343 of 382
Procedure Code or any other enactment, no appeal lay and the High Court was right in holding that the appeal could not be entertained.
It would seem that the appellant's right of appeal was wasted through no fault of his in that the revision was done before the time within which an appeal can be lodged was over. This may occasion a failure of justice and one must draw attention to the case of Iobozi s/o Katabara -vR15. The court in this case stated that it; was a most undesirable practice that a revisional order enhancing a sentence should be made before the period of giving notice of appeal has ran out or where such notice has been given before the appeal has been heard and determined. In this case the sentence had been enhanced. The court noted;
"We are of the opinion, however, that, save in cases where justice requires that an obviously improper conviction or illegal sentence be at once quashed or rectified, revisional powers should not be exercised before inquiry has been made whether an appeal has been or is likely to be lodged.”16
The reason for this is that if revisional powers are exercised, before an actual or potential appeal is disposed of this may result in the accused losing his right of appeal to the High Court and even to the Court of Appeal.
15 16
(1956)23 E.A.C.A 583. Ibid at 585. Page 344 of 382
C.
EXTENT OF POWERS OF REVISION The extent to which a court may revise records has also been the
subject of judicial determination. Although no iron clad rule has as yet been made, the various decisions shed some light on the point. The Kenyan case of Nathan Godfrey Odhiambo Obiro -vs- R17 is relevant. The appellant was convicted of forging and altering contrary to section 352 and 356 of the Penal Code, and was given, an absolute discharge under section 35 of the Penal Code. The Supreme Court called for the proceeding's under section 362 of the Criminal Procedure Code and the case was listed for argument whether the sentence or final order should be altered under thepowers of revision vested in the court. It was submitted for the appellant that an order of absolute discharge under section 35 is not a sentence and that there was no power in revision to set aside an order such as that. The Crown submitted that an order of absolute, discharge is technically a sentence in as much as it is a definite judgment pronounced in criminal proceedings. The Supreme Court of Kenya made the following findings;
(i)
an order of absolute discharge under section 35 of the Penal Code is technically a sentence and may be enhanced in revision under the powers contained in section 364(1) of the Criminal Procedure Code;
(ii)
even if the absolute discharge were not technically a sentence it would be an "other order" and could be altered in revision under section 364(1) of the Criminal Procedure Code.
This shows that so long as a finding, sentence or order falls within the contemplation of section 364 of the Criminal Procedure Code the High Court has jurisdiction to act upon it on revision, other factors is remaining
17
(1962)EA650. Page 345 of 382
constant. The issue of whether it is competent for a court to revise an acquittal has been considered. In the Tanzanian case of R –vs- Telenga18 revision of an acquittal was in issue. The accused pleaded not guilty to an offence of corruption under the Corruption Ordinance. Providence of the prosecution and defence was taken and the Magistrate then realized that consent had not been obtained in writing from the Attorney-General as required by section 14 of the aforesaid Ordinance. The prosecution then made an application to withdraw the charge, and since the defence had already been taken, the relevant provisions of the Criminal Procedure Code under which the application was made, made it a requirement that the accused be acquitted. The court in granting the application acquitted the accused. The D.P.P asked for a revision by the High Court to set aside the whole proceedings including the acquittal. Platt -J- held that the Criminal Procedure Code (Tanzania) at section 329(4), whose equivalent provisions are section 364(1) of Cap 75 precludes the High Court from considering the revision of proceedings which result in an acquittal. As seen from above, the court does not enjoy jurisdiction to revise proceedings culminating in an acquittal. However, a finding of ‘autrefois acquit’ is treated differently. In the case of Semuyaga -vs- Uganda19, it was held that a finding of autrefois acquit is a final finding but subject to revision. The High Court's revisional jurisdiction has also been considered with regard to a person being charged under an Act not yet in force. The relevant case is R -vs- Indo Parsad Dave20 The accused was charged and convicted, of his own plea of guilty of inter-alia failing to keep a poison's
18 19 20
(1967)EA407. (1975)EA186 (1963)E.A65. Page 346 of 382
book and failing to display a certificate of registration as a pharmacist contrary to section 29 and 219 respectively of the Pharmacy and Poisons Ordinance (Tanzania). This ordinance was enacted on the 11th of November 1959 and it repealed the Poisons and Pharmacy Act, but did not come to force until the 1st of November 1962. The particulars of the Charge alleged that both the offences had been committed before September 1962, when the repealed Act (read Ordinance) was in force. In revision, the question was whether the court should allow the convictions to stand but alter the charges under section 29 and section 219 of the new ordinance to charges under the corresponding sections of the repealed Ordinance, namely section 21 and section 5 respectively. Sir Ralph Windham CJ held that the provisions of the Criminal Procedure Code regarding revision are wide enough, to enable the court, acting on appeal or in revision, to do what the court of trial ought to have done, and accordingly the court had power to alter the charges and conviction under the appropriate section in repealed ordinance, which was in force when the offence was committed, provided, that the offence was in every respect the same under the old and new sections and provided that no failure of justice would result from the alteration21. The relevant sections of the Tanzanian Criminal Procedure Code being equally worded with the Kenyan Criminal Procedure Code, the above can be taken as offering a judicial interpretation of statutory provisions which vest the courts with revisional powers. The issue of revision when the relevant Act is not in force has also received judicial consideration in other jurisdictions. Two English cases of Meek -vs- Powell22 and R –vs Tuttle23 focus on the point. In the case of Meek -vs- Powell, the position was the reverse of the
21 22 23
See section 382 Criminal Procedure Code (Cap 75). (1952)1 K.B 164; (1952)1 All E.R W. (1929)AII E.Kep, 107 Page 347 of 382
case considered above24. The accused was charged under a section of an Act no longer in force when his offences were committed, instead of under the corresponding section of the Act which had replaced it. It was held that since the trial court had not made the necessary alteration, in the indictment before conviction, it was too late to ask the Court of Criminal Appeal to alter it, notwithstanding that no prejudice would, have resulted to the accused and the conviction was accordingly quashed. In R -vsTuttle, the position was exactly like that in R -vs- Indo Dave the accused having been charged under a section of an Act which, although it had been enacted, had not yet been brought into force when the offence, was committed. The trial judge before conviction altered the indictment to one under the corresponding and almost identical section under the Act which was still in force when the offence was committed, and which was repealed and substantially re-enacted by the new Act. It was held on appeal that the alteration was properly made by the trial court. The powers of the High Court when exercising its revision jurisdiction allows it to alter a sentence. This was observed in Juma Keshallila –vs- R25. The appellant was convicted of stealing by a Magistrate who under the powers conferred by section 305(1) of the Tanzanian Criminal Procedure Code ordered that the appellant be released upon entering a bond to appear and receive sentence- at any time within three years if called upon and in the meantime to be of good behaviour. In revision, the High Court set aside the order of the Magistrate and substituted, a sentence of one year's imprisonment. The appellant appealed on the ground that the High Court had no power to substitute a sentence of imprisonment for an order made by the Magistrate under section 305(1) of the aforesaid code, which provides that: 24 25
R -vs- Indo Dave (1963)EA. 65. (1963)EA184. Page 348 of 382
"... if it appears to the court before which the offender is convicted that... it is expedient to release the offender on probation, the court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond... to appear and receive sentence when called upon..."
The East African Court of Appeal held that firstly an order made under section 305(1) does not amount to a sentence and that in revision the High Court has power to substitute a sentence of imprisonment for a probation order to come up for sentence if called upon.
D.
REVISIONAL JURISDICTION WHEN RIGHT OF APPEAL EXISTS AND IS NOT EXERCISED Under the Criminal Procedure Code it is clearly provided that;
"When an appeal lies from a finding, sentence or order, and no appeal is brought, no proceeding' by way of revision shall be entertained at the instance of the party who could have appealed26"
The above provision was judicially considered by the East African court of Appeal in R -vs- Ajit Singh s/o Vir Singh27 The accused was tried for theft of timber contrary to the Penal Code and at the end of the prosecution case the Magistrate held that there was no case to answer. The
26 27
Section 364(5) Criminal Procedure Code (Cap 75). (1957)EA 822, Page 349 of 382
accused, was acquitted and was awarded Shs. 500/- as compensation as the Magistrate regarded it "frivolous in the extreme for him to have been recharged". About a month, earlier the accused, had been charged with an exactly similar charge-but it was withdrawn. The present case was brought before the Supreme Court by way at revision at the instance of the Attorney-General., to review the finding that the charge was frivolous. Edmunds -J- before whom this case originally came adjourned it for consideration before a full bench. At the subsequent hearing, counsel for the accused took preliminary point that section 364(5) of the Criminal Procedure Code, precluded the court from exercising revisional jurisdiction because the matter was brought to the notice of the court by a party who had a right of appeal against the Magistrate's decision byway of case stated. The Crown made two arguments; Firstly that on the facts, this was not a frivolous or vexatious prosecution and that the question whether it was or was not, was one of fact, and that an appeal by way of case stated did not lie. Secondly, that, if an appeal did originally lie, the time for preferring an appeal had expired when the crown requested the court to exercise its powers of revision and that sub-section (5) of section 364 is not designed to exclude the power to entertain a revision in such circumstances. In setting aside the order of compensation., Rudd Ag C-J, Connell and Murphy J made, the following ruling, that:
(h)
Sub-section (5) of section 364 (Criminal Procedure Code) is not intended to preclude the supreme court from considering the correctness of a finding, sentence or order merely because the facts of the matter have been brought to its notice by a party who has or who has had a right of appeal and is not intended to derogate from the wide powers conferred by sections 362 and 364. Page 350 of 382
(ii)
the supreme court can, in its own discretion, act 'suo motto' even where the matter has been brought to its notice by an aggrieved party who had a right of appeal.
At other times, an appeal may have been lodged but it is subsequently withdrawn. This does not deny the High Court competence to exercise its revisional jurisdiction if it considers that the order or sentence is illegal. This was considered in Uganda -vs- Polasi28. In this case the accused was sentenced to an illegal term of imprisonment He filed an appeal but withdrew it and it was thereby deemed to have been dismissed. The sentence was subject to confirmation and had not been confirmed. The High Court held that it had power to revise the illegal sentence. Dickson J- noted that an abandoned appeal may be restored in a proper case on application by an appellant. He observed that in this case the appellant had not applied and a pertinent question to be asked, was whether the court can of its motion restore an abandoned appeal. He took the view that inasmuch as an abandoned criminal appeal may be re-stored where, the court is 'functus officio', the High court can of its own motion, in the exercise of its revisional powers under the Criminal Procedure Code, where there is a fundamental illegality make a revisional order without an accused applying, in the case where an appeal had been previously dismissed by the mere operation of the law. The court noted:
"The case has come to this court's notice in the exercise of its functions. The accused, it would seem, was unaware of
28
(1970)EA638. Page 351 of 382
the illegality of the sentence... Once this state of affairs has come to the notice of the High Court, what must it do when it is enjoined to exercise general powers of supervision and control over the Magistrates’ courts, coupled with the specific powers of revision, under... the Criminal Procedure Code? The court is clothed with authority to correct errors... Here the accused is sentence to undergo imprisonment for seven years, a sentence which exceeds the legal limits by five years and, accordingly, there's a gross illegality. In these circumstances, the clear duty of this court, notwithstanding the fact that the accused has abandoned his appeal, is to invoke... the Criminal Procedure Code and cure the illegality. I would hold that in the circumstances of this case, even if this court is functus officio, it has jurisdiction under its revisional powers to correct the formidable error of the trial Magistrate which has already occasioned an injustice29'".
This echoed a passage from the speech of Lord Morris in S (An infant) By Parsons (His next Friend) -vs- Recorder of Manchester30 that;
"If, before the court has completed its task in regard to the case, an application to withdraw the plea is made and if its made for reasons which the court deems valid and which perhaps it had previously had no opportunity of considering is the court powerless to accede to it? It would be
29 30
Ibid at 640. (1970)2 W.L.R 21 Page 352 of 382
lamentable if that were so".
Dickson -J- further observed that it would be lamentable in the circumstances of the case Uganda -vs- Polasi if the court in the absence of an application by the accused to withdraw his notice of abandonment of his appeal, could not reduce the sentence to its legal, limits by the exercise of its revisional powers. From the above, it is clear that sub-section (5) of section 364 of the Criminal Procedure Code does not work to limit the powers of the High Court in exercise of its revision al jurisdiction if the order or the sentence is manifestly illegal. The interpretation of the court with regard to the above is a welcome one because it has insisted that substantive justice should not be sacrificed for mere technicalities.
E. A FINDING OF AUTREFOIS ACQUIT AND REVISION The Criminal Procedure Code at section 364(1) (b) provides that in the case of a proceeding in a subordinate court the record of which has been called for or which, has been reported for orders, or which otherwise comes to its knowledge, the High Court may in the case of any other order other than an order of acquittal, alter or reverse the sentence', This clearly throws an order of acquittal out of revision.. The issue at hand is whether a plea or a finding of autrefois acquit' operates in like mariner with an order of acquittal. This has been settled in the case of Semuyaga –vs- Uganda31 by the Court of Appeal for East Africa. The case considered whether an order of 'autrefois acquit' is subject to revision. The appellant was charged with offenses before a Magistrate, and contended that he had been acquitted of the charges that had been acquitted of the charges the previous 31
(1975)E.A 186. Page 353 of 382
day. The Magistrate upheld the submission, and the state applied to the High Court for a revision of the order which was granted on the ground that the offences charged were not based on the same facts. On further appeal, the appellant contended that the revision application was out of time. The state contended that the application for revision made by it in the High Court had been incompetent as being a challenge to an interlocutory ruling in the course of a trial. The appellate court held that the finding of 'autrefois acquit’ was a final order from which revision lay and therefore the finding of the High Court was correct. The appeal was thus dismissed. This case shows that an order of 'autrefois acquit' is a final order or finding and it is subject to revision. It is not to be understood as meaning 'acquit'. The finding that a person had been acquitted of a certain offence charged does not mean the same thing as the acquittal itself.
F.
EFFECT OF REVISION OF A CIVIL CASE UPON A CRIMINAL CASE BASED ON THE SAME FACTS The issue which has arisen with regard to the review of conviction
and sentence in criminal and civil cases concerning the same persons and based on the same facts is whether different. Findings in subsequent findings of the civil proceedings can affect the results of a criminal case. There is no clear statutory provision in the Criminal Procedure Code on the issue but one may invoke the Evidence Act32 that since the standard of proof in a civil case33 is on a balance of probabilities and that in a criminal trial is beyond reasonable doubt, it is unlikely that the civil findings will greatly affect the outcome of the criminal trial. This issue was considered
32 33
Cap. 80 Laws of Kenya Save in matrimonial causes where divorce is sought the standard required is higher than in other civil concerns. Page 354 of 382
in P.S. Fernandes –vs- R34. The applicant was convicted in the Magistrate's court on a charge of assaulting the complainant and causing him bodily harm and was bound over for one year in the sum of Shs. 100/-. He applied for leave to appeal out of time and application was dismissed. He applied after a lapse, of four months by way of revision, to have his conviction set aside. During the intervening period the complainant sued the applicant for damages in the Resident Magistrate's Court but before another Magistrate, and in this case each of the parties told substantially the same story as in the criminal case. The Magistrate believed the applicant and found that the complainant not merely rushed at the applicant immediately before the latter caught hold of him, but he actually pushed the applicant, so that if there was any assault it was in self-defence against an assault by the complainant and accordingly dismissed, the action. One of the points raised by the applicant in his application for revision, was that in view of the findings of the Magistrate in the civil proceedings, the findings and conviction of the Magistrate in the criminal case ought to be reversed and set aside because a reasonable doubt on credibility had arisen, ex, posto facto' by the judgment in the subsequent civil case. Windham C-J held that first when the court is acting in revision, it is not confined to the question whether the judgment or sentence in the criminal court' was correct when made, but may consider also the broader question whether it ought subsequently to be set aside even if correct when made. The second point made by the learned C-J is that the court could not accept the applicant's proposition on credibility as, quite apart from the resulting uncertainty and confusion, the decision of the court on such a question would depend upon an assessment of the capacities and experience of the two Magistrates themselves which it would be impossible and wholly
34
(1957)EA212, Page 355 of 382
improper to attempt. The court dismissed the application for revision.
Page 356 of 382
CHAPTER TWENTY RETRIAL A. INTRODUCTION Although, new trials were granted in civil cases as early as the fourteenth century, they were not granted in criminal cases until the latter half of the seventeen the century. Although there were two cases in 1660 allowing a new trial upon the application of the prosecution, the developing concept of double jeopardy prevented the rule from taking hold. In 1673, a new trial was granted after a conviction of perjury. Since then the defendant may apply for a new trial. The grounds for new trial were broad in scope, covering errors in the admission or exclusion of evidence, improper instructions, a verdict against the weight of the evidence, or the furtherance of the ends of justice, However, no new trial could be granted in felony cases. The function of a motion for a new trial is to call to the attention of the trial court some error which was committed upon the trial or to some newly discovered evidence which was not obtainable at the trial. By means of such a motion it is possible for the trial court to correct errors without subjecting the defendant to the expense, delay and inconvenience of an appeal.
B. ORDERS FOR RETRIAL When a case has been tried and 'duly' determined by a competent court, a higher court than that which tried the case may order that the matter be tried again. The High Court in its exercise of revisional powers, or appeal, may order that a case be remitted to the lower court for a retrial. A re-trial is a finished trial, a proceeding in which the guilt or innocence of the accused is determined. Accordingly, in the case of AG -vs- Kelly Page 357 of 382
(No.2)1, where a retrial had been ordered and the jury disagreed, it was held that there had not been a retrial. A question has arisen as to whether to order a retrial is a matter of practice or of procedure. The Privy Council in the case of Ross -vs- R2, was of the view that it was both. The discretion of the court to order a retrial is one that ought to be exercised with great care. This exercise is not done randomly but is grounded on well formulated principles as developed by the courts. There are several factors to be considered when the court is deciding whether or not to order a retrial. These factors have been spelt out in the case of Fatehali Manji –vs- R3 The appellant was charged with the theft of a selfstarter. The prosecution alleged that it was stolen from a vehicle at Arusha on June 6th 1965, and that the appellant had it in his possession eight days later when it was resold, The appellant's defence was that he had purchased the self-starter from a shop in Nairobi on June 10th 1965 and he produced a receipt. The prosecution led hearsay evidence without leave that the shop did not exist. The Magistrate called, a police officer from Nairobi whose evidence he accepted, to testify that the shop did not exist. The appellant was convicted. On appeal to the High Court, leave, was given to adduce additional evidence to establish the existence of the shop. Eventually the prosecution conceded that the police officer was in error and the judge ordered a retrial, being influenced by the inadmissible evidence. On further appeal to the Court of Appeal, the question to be decided was whether the order for retrial was justified or not. The Court of Appeal at Nairobi presided over by Sir Clement de Lestang, Ag. President, Spry Ag V-P and Law J.A held that:
1 2 3
(1938) Ireland Reports (I.R) 109. (1938) Ireland Reports (I.R) 109. (1966)E,A343. Page 358 of 382
(i)
In general a retrial will be ordered when the original trial was illegal or defective. It was further observed, that each case must depend on its own facts and circumstances and an order for retrial should only be made where the interests of justice require it.
(ii)
the original trial was neither illegal nor defective and in the circumstances of the case it would he unfair to require the appellant to stand a new trial.
The court went further and restated the other conditions such as that a retrial will not be warranted merely because of insufficiency of evidence. It is to be noted that a retrial will not be ordered, if by so doing an. Injustice will be caused or occasioned. What however, is "an injustice" has not been judicially determined. However, a clue as to what would, amount to an. injustice is offered by the above case in which. Sir Clement stated:
"Applying those principles to the present case, it is clear that the original trial was neither illegal nor defective. We think that had the learned Magistrate not been misled regarding" the existence of the shop in question he would, in all probability, have acquitted the appellant and a new trial may deprive the appellant of that chance of acquittal. Moreover, in a new trial the prosecution would be able to lead evidence which it had not led at the original trial and take a stand different from that which, it took at the trial. In all these circumstances we are of the view that to require the appellant to stand trial again would be unfair4".
4
Ibid at 344-345. Page 359 of 382
The 'locus classicus' on the subject of retrial and the conditions to be considered, is Muyimbo –vs- R5. It focused on "when a retrial may be ordered".
Before discussing the conditions, it is necessary to outline, briefly, the facts. One of the appellants jointly charged with two others was represented. He had been in custody since May 1968 and the police were aware that an advocate had been instructed in June 1968. On 5th September 1968, the hearing of the case was fixed for 10 th September 1968, at Masaka some eighty miles from Kampala where the advocate practised. The advocate was informed that the case was fixed for hearing by telephone only on the morning of the hearing. He was engaged in the High Court in Kampala. The Magistrate was not told that the advocate had been informed just that morning that the case was fixed for hearing. The Magistrate accordingly allowed the trial to proceed. The appellant appealed on the ground that he had been denied the right to legal representation given to him by the Constitution. Russel -J- held that the appellant had been deprived of his right to legal representation. He further ruled that this was a fundamental defect which had the result of nullifying the trial. The case of Galos and Another –vs- R6 was followed. Russell J. therefore ordered a retrial as the trial of the appellant had been defective. He followed the case of Ahmed ali Dharamasi Sumar –vs- R7. Russel -Jfurther gave the conditions which are needed for a retrial to be ordered. He said:
5 6 7
(1969)LA433 (1944) AC 149 (1964)EA481 Page 360 of 382
"In general a retrial will be ordered only where the original trial was illegal or defective; it will not be ordered, where the conviction is set aside because of insufficiency of evidence....8”
It was further noted that an order of retrial will not be given for purposes of enabling the prosecution to fill up gaps in its evidence at the first trial. Even where a conviction is vitiated by mistake of the trial, court for which the prosecution, is not to blame, it does not necessarily follow that a retrial should be ordered. Each case must depend on its particular facts and circumstances and an order for retrial should only be made where the interests of justice require it and should not be ordered where it is likely to cause an injustice to the accused person"9. In Aloys Awori –vs- Uganda10, the issue of retrial was at hand. The appeal of the appellant against his conviction based on inadmissible evidence was allowed. On the application by the state for a retrial, Russel J. held that the trial was neither illegal nor defective and an order for a retrial, would give the prosecution an opportunity of filling in gaps in its case. The application was thus refused on that ground. The court further observed that to give the prosecution an opportunity of filling in gaps in the prosecution case would be contrary to the well established principle 'NEMO BIS VEXARI DEBET PRO EADEM CAUSA' - it is a rule of law that a man shall not be twice vexed for one and the same cause. Sometimes, the trial may be a nullity through no fault of the prosecution. In certain of such circumstances a retrial may be ordered. In
8 9 10
(1969)EA433at438. As per Russel -.1- Ibid at 438 (1972)EA469. Page 361 of 382
M’Kanake –vs- R11 the trial was a nullity not by fault of the prosecution. The evidence at the appellant's trial for murder consisted of an alleged confession, the evidence of an adult eye witness and of five small children. The appellant was informed of his right to give evidence or to call witnesses on the admissibility of the confession, the adult witness had made a statement to the police that he had not seen the deceased on the day of her death, and the judge had not recorded that the children were of sufficient intelligence and understood the duty of speaking the truth. Counsel for the respondent asked for an order for a retrial. The Court of Appeal ruled that since the retrial was not asked for to fill gaps in the evidence nor to rectify faults of the prosecution it would be ordered.
At yet other times, the original trial may not be illegal or defective but if a retrial, will occasion an injustice to the accused, then it will not be ordered. The case of Merali & Others -vs- R12 discusses the point where the appellant together with two others were charged jointly before a Magistrate with stealing goods in transit. The appellants appealed to the High Court against then-conviction. The judge, did not find that the trial was illegal or defective, but after stating that the Magistrate dealt with the defence and not with the prosecution evidence, he ordered a retrial. The appellant appealed again. The Court of Appeal held inter-alia that a retrial may be ordered only when the original trial was illegal or defective. The court further held that a retrial may be ordered if the interests of justice so require and if no prejudice is caused to the accused. The order for retrial was set aside. A retrial may be ordered if the court finds that an accused person was convicted of an offence other than the one which was either charged or 11 12
(1973)EA67 (1971)EA221 Page 362 of 382
ought to have been charged with. In Tamamo -vs- R13 the accused was charged with driving a vehicle whilst under the influence of drink. Section 44(1) of the Traffic Act14 provides for three different offences 'driving', 'attempting to drive' and 'being in charge of " a motor vehicle whilst under the influence of drink to such an extent as to be incapable of proper control of the vehicle, and the accused was convicted and sentenced. On appeal, Trevelyan -J- set both the conviction and sentence aside and ordered a retrial on the ground that the accused was never charged with "being in charge" of a motor vehicle, and accordingly the conviction and sentence should be set aside. The court in its discretion, therefore ordered a retrial. The proceedings of the trial may be irregular and whether the irregularity is reason enough to warrant an order for retrial must be investigated. The case of Ratilal Shah -vs- R15 focuses on the point and discusses what to consider when an applicant has raised the issue of irregularity. In this case a salesman, driver employed by a brewery altered an invoice for five cases of beer to show that he delivered fifteen cases and made out another invoice showing that he had delivered, fifteen cases of beer to a customer to whom no beer had been delivered. He then drove to the appellant's shop and offered the appellant twenty cases of beer, which was off-loaded at his store. The appellant was subsequently charged with receiving or retaining stolen property. After hearing the evidence and addresses, the Magistrate adjourned and a few days later delivered a short written, judgment in which he convicted the appellant and sentenced him finding that the salient facts were unchallenged but adding that he would give his reasons in writing later, Subsequently, he recorded his full reasons in a document headed "Findings", which was put with the record but never
13 14 15
(1969)EA176 Cap 403 laws of Kenya. (1958)EA3. Page 363 of 382
read out in court. On appeal from his conviction and sentence, the appellant's counsel contended, that the procedure of the Magistrate was irregular and not in compliance with the Criminal Procedure-Code. It was held that a retrial should not be ordered unless the court is of the opinion that on a proper consideration of the admissible or potentially admissible evidence a conviction might result; and since the court was unable to hold that there was no evidence to justify the Magistrate's finding that the salesman driver formed the intention to steal when he fiddled the invoice and that asportation occurred at the latest when he set off for the appellant's shop; accordingly there was evidence to support a conviction for receiving and there must be a re-trial. The court further observed that the judgment of the Magistrate did not comply with section 169 of the Criminal Procedure Code since there was no clear finding of fact and no reasons for the decision. It further observed that an appellate court cannot look at reasons written by a Magistrate after the conclusion of a trial but the procedure adopted by the trial Magistrate did not necessarily invalidate the conviction and an appellate court is entitled to entertain an appeal on the merits if no injustice to the parties is thereby done and the record contains sufficient material for the purpose. The two cases of Samwiri –vs- R16 and Desiderio Kawunya -vs- R17 were followed. Therefore, its within the court's discretion, whether or not to order that a case be tried again. This discretion is exercised on solid governing principles. Although case law indicates that a retrial will not be ordered merely on account of irregularities, it is well settled, that if such procedural irregularities have indeed gone into the core of the matter and have occasioned an injustice or a miscarriage of justice, nothing will deter the court from ordering a trial de novo. A retrial therefore becomes an important 16 17
(1953)2.0 E.A.C.A 277. (1953)20 E.A.C.A 281. Page 364 of 382
safeguard where an earlier trial has been vitiated by a miscarriage of justice.
Page 365 of 382
CHAPTER TWENTY- ONE INQUIRIES AS TO SUDDEN DEATHS A. INTRODUCTION Under the Criminal Procedure Code sections 385 to 388 provisions are made spelling out the 'modus operand'' of conducting trials in cases of sudden deaths. Section 385 empowers a Magistrate holding a subordinate court of first or second class and a Magistrate specially empowered by the Chief Justice to hold inquests.
B. INQUEST JURISDICTION The inquest jurisdiction of courts is invoked in several circumstances. Under section 366(1) when an officer in charge of a police station or any other officer specially empowered receives information, that a person has committed suicide1 or has been killed by another or by accident2, or has died under circumstances raising reasonable suspicion that some other person has committed, an offence3 is enjoined to give information to the nearest Magistrate empowered to hold inquests.
C.
INQUESTS WHERE DEATH CUSTODY OR PRISON
OCCURS
IN
POLICE
In cases where death occurs while a person is in custody of the police, or of a prison, officer, or in a prison, the nearest Magistrate empowered to hold inquests may hold an inquiry into the cause of death in line of or in addition to police investigation.
1 2 3
Section 386(1 )(a) of Criminal Procedure Code (Cap 75). Section 386(1 )(b) of Criminal Procedure Code (Cap 75). Section 386(1 )(c) of Criminal Procedure Code (Cap 75). Page 366 of 382
While, exercising the review jurisdiction the enquiring Magistrate has powers to make orders to facilitate the enquiry including exhumation and examination of the body.4 During the inquiry or at its termination the Magistrate is empowered to summon any person(s) against whom an offence has been disclosed.5
D. FINDINGS AFTER INQUEST After an inquest has been conducted through examination of witnesses the Magistrate may make a finding that some offence has been committed by some person or persons unknown. A copy of such finding shall be forwarded to the Attorney-General being the Magistrates opinion6. Conversely if the Magistrate has formed the opinion that no offence has been committed, he shall record his opinion accordingly7. It is noteworthy that the Magistrate's inquest jurisdiction may be reactivated even when it has been terminated. Section 388(2) empowers the Attorney-General to open an inquiry if he deems further investigation necessary. When the Attorney orders the re-opening of an inquiry a Magistrate shall do so except if he had formed and rendered an opinion to the effect that the offence of murder or manslaughter had been committed by a person.
E. CONCLUSION Inquests are very important owing to the premium that the Constitution places on life 'ipso facto' whenever death occurs in unclear circumstances the law makes it mandatory that an inquiry must be 4 5 6 7
Section 387(2) of Criminal Procedure Code (Cap 75). Section 387(3) of Criminal Procedure Code (Cap 75). Section 387(4) of Criminal Procedure Code (Cap 75). Section 387(5) of Criminal Procedure Code (Cap 75) Page 367 of 382
conducted to remove the cobwebs of uncertainty.
Page 368 of 382
A
with warrant 20
Absconding 39, 40, 41, 65
without warrant 17, 18
fear of 41 Accessory 30
Attorney-General 165
Acquit 102, 139, 143, 296, 302 Alibi 125, 153 Appeal
appeal to the high court 107
48, 51, 267, 278 admission
of
Bratty additional
evidence on 269
-vs-
Attorney-
General for Northern Ireland 199
bail pending 46
constitutional position 2
from order 263
powers 2, 3, 14
revisional jurisdiction when
B
right of 299
Bail 31-69
summary
rejection
and
precision of the 269 Appeals 264 from subordinate courts 264 summary allowance of 272 from the high court 276 Application 58 for habeas corpus under Kenyan law 287 Arrangements 32, 41 Arrest 16- 23 by a police officer 17 by a private person 20 by Magistrate 19 Page 369 of 382
application 58 as viewed by
Sauzier 94 of Beynon 193
courts 60 in Kenya 32
of Bracegirdle-vs-Oxley 265
pending
appeal
46,
51
of Byarutu Gata 101 of
pending appeal on a plea of
Cliander Kanta Sethi 231 of
guilty 48 pre-trial 40 the law
Christopher Omufira Akwabi
of 64 Bond 56,
80 of Edwards -vs- Bairstow
C
and Another
Case 108, 110, 111, 149,
266
188, 303 against accused person 110, 123, 152 against Robbert reform
Martins 185,
210
43
for
in
a
subordinate court 244, 288 in preliminary inquiries 123 in the court of appeal 51 Merali and others 310 of a convicted person 237 of a prisoner 249 of Abdullah 50 of Adan 101 of Aganyi 254 of Ahmedali Ali Dharma Sumar 308 of Alexus Afumu and Another 108 of Ali Mohammed
Hassani
Mpanda 221 of Andiazi 175 .of
Attorney-General-vs-
Kelly 306 of bail bond 57 of Benfield 88 of Benjamin Page 370 of 382
of Elgood 273
Uganda 290 of Kuyate 272 of
of Eliud Mwaura 38
Lebiningin 78 of Lelawan
of evidence of children 219
Leseroi 144 of Livingstone
of Fatehali Manji 306
Anyanga 147 of Lobozi s/o
of Fuller 88
Katabara 294 of Lokidilio s/o
of Gajjan Singh and others
Laitogou 234 of Lokmanya
55
Tilak
of Gamiliere Mubito 135
Kachehakana
of Gasol and Another 308
Mahmood 57
of George Ochieng Omodho
of Makali and three others
112
260 of Mandi s/o Ngoda 202
of Grace Ibingira and others
of
285
manslaughter 38 of Margaret
of Gray 261
Magiri Ngui 36 of Mathenge
of insanity 201, 204
s/o Muriemo 150 of Maulidi
of Jaffer 64
Abdalla
of
Joseph
Odhengo
s/o
60
of
Mangwera
Change
Maumba 103
Ogongo 258 of Kamau s/o Muga 84 of Kamwana s/o Mutia 82 of Kaplotwa s/o Tarino 192 of Karioko s/o Gichohi 270 of Khalif 251 of Kidasa 268 of Kimani and Maina -vsNathan Kahara 135 of Kimanzia 237 of Kinyori s/o Kiraditu -vsRegina 151 of Kiwala-vsPage 371 of 382
Magata s/o 205
139
94
of
of
of
of Mbebi 158
Ogonyo Luora
of McBride 84
219
of Meek -vs- Powell 297
of Ross 306 of Saina 91
of Mehar Singh Bansel 181
of Semuyaga-vs-Uganda 296,
of Merali 48
302 of Shah 47 of Sirasi 275
of Michael 51, 293
of Sironga and Mindo 291 of
of Mita 232
Sowedi Kauta 134 of state
of M'Mwenda 101
interference 260 of Telenga
of Mohamed 233
295 of Telenge 98
of Molley 87 of Mukindia 242 of Mutua 138 of Nahashon Marenya 71 of
Nathan
Godfrey
Odhiambo Obiro 294 of Nathani 85 of Nemchand Govindji -vsRegina 52 of Odera 238 of Ogalo 253 of Paul Ekai 184 of Paulo Lwevola 178 • of personal recognisance 57 of Pritchard 195 of ProbatShah 285 of provocation 175 of punishment 37, 39 of R -vsGabhai Jessa 54 of Ramanlal Bhatt 110 of Ratilal Shah 222, 311 of Re Castings 217 of
Robert
Ndecho
and Page 372 of 382
of the Attorney-General -vs-
of concurrent sentences 252
Marakaru 265
of law 97
of the King -vs- Thomas 87
of murder 127
of Thompson 88
of rape 83
of Uganda-vs-Keneri Opidi
of stealing cattle 144
73
two offences 92
ofWitherly-vs-Witherly 283
under the Traffic Ordinance
of Wood Green 69
72 Civil 51, 212, 285
of Yates 96
and criminal 167
of
Yokobo
Uma
and
effect of revision of 303
Another 86
of the criminal trial 304
of Yowana Sebuzkira 133
of unlawful arrest 17
of Yusuf Maumb 95
Procedure Act 172
of Zaverchand Hemraj Shah
proceedings 19, 243, 261, 304
78
Cognizable offence 18, 20, 21
of Zubairi 127
Committal 119, 130, 252, 258
passed by the High Court
by the presiding high court
292
judge 98
proved by the evidence of
by the prosecution 126
other eyewitnesses 110
of an accused person 123
the appellant 154, 192, 238, 300 the Chief-Justice 275, 277 under the Road Traffic Act 266 Charges 70, 89-97, 127, 261 amendment of 93 for treason in Kenya 133 of arson 90 Page 373 of 382
proceedings 119, 124, proceedings
/
Contempt 258, 259 and
constitutional rights
130
in the face of the court 259 of
Compensation
court
in
criminal
proceedings 258
234, 237, 243
of court proceedings 257,
revisited 242
outside court 259 Convict
of unfair remand 38
102, 143,
order
by
court
243
• of capital murder 194
Constitution 130
of children and young persons
and the Criminal Procedure
act
Code 32
230
and
legal
rights
over
criminal •
of guilty of inter-alia 296 of killing an animal 234
prosecutions
see
of manslaughter 160
Constitutional 4
of murder 138, 174, 192, 194,
of a Chief Kadhi 105
197
of human rights 62
of rape 83, 293
of jurisdiction and powers
of robbery with violence 217,
105
272
of Kenya 4, 8, 13, 130, 213
of stealing 255, 279, 290, 298
of Kenya Act 37
of the penal code 75
of the court 276
burden
of the court in its appellate
Conviction 203
jurisdiction 276
of guilty 49, 101, 139
of the high court of Kenya
of the traffic regulations 73
131 of the office of the President 261 on
life
ipso
facto
314 Page 374 of 382
of
proof
see
under traffic ordinance 74 to
D
a higher court for sentence
Defence 111, 204
256 Costs 240, 244, 237
bail application 62
of prosecution 235 Courts
burden of proof 191, 203
60, 81 99, 105, 107, 306
charge of murder 133, 164
Appeals from subordinate
commission 197
264
evidence 129, 152, 153, 154,
of
children
and
young
204
persons act 240
functus officio 104
Bail pending appeal 275
of insanity 198, 199, 204
Bill 37, 3S
onus of proof 195
Judicial act 261
submissions 112 Demurrer
legal basis of law 128
139, 142 Detention 189, 202,
of human rights 43
229, 230, Discharge 235, 240,
of
unlawful
arrest
17
263, 295
Criminal 1, 258, 259, 303 appeal 7 arrest 4, 16, 19, 20, 23 charged with robbery with violence 36 investigation 9, 18 right 4 warrant of arrest 21 Custody 41, 141, 287, 313 arrest without a warrant 18, 69 bail 36 investigating 127 of rape 58 Page 375 of 382
E
of a bond 57 Functus Officio
Employment 40, 67, 230
95, 102, 291, 292, 301
extra-mural penal 237, 241,
rule 102, 103
242 Evidence 40, 258, 273
guilty 165
of proof 150, 274, 303
powers 301
against prisoner 19
trial 127
of a prisoner's sanity 197
G
of an adult eye witness 309
Guilty 148, 170, 204, 206 bail
of appeal 274
pending appeal on a plea of
of children of tender 219,
48 of corruption 295 of inter-
309
alia 296 of murder 104, 138,
of guilty 148
184
on bail 40 on oath 110, 126, 150 onus of proof 195 to justify a committal 120 of sentence of imprisonment 235
Ex
facie
148
•
Exhypothesi 155 Execution 18, 220, 258 of sentence of imprisonment 235 warrant 234 F Fines 77, 245, 252 of imprisonment 231 prison
sentences
251
Forfeiture 65, 229, 233 commission of a crime 233 Page 376 of 382
plea of 103, 139
defence 204
plea of" not 140 procedure
of mens-rea 207
after finding of 210
prosecution 196 Insanity 200,
H
201, 204, 214
Habeas Corpus 282-285 287
and the prosecution 196
Hearing 8, 47, 148, 149
evolution 205
a witness 145
of a criminal trial 188
of case 112
of a trial 202
of complaint 114
of defence 201
of the appeal 49
of drunkenness 213
of the case 59
procedure in cases of 187
of the trial 148 of medical evidence 193 imprimatur
86,
287
Imprisonment 229, 241, of robbery with violence 217 of threatening to murder 196 of
young
persons
246
indictment 87, 95, 100, 195, 204, 298 for murder 194 of rape 83 Information 70, 119 by appellant 81 quashing of 95 Inquiry 119, 121, 128 of death 313 of murder or manslaughter 314 Insanity 187, 196 Page 377 of 382
refusal to plead 196
/
for the period 174
guilty but insane or not
imposed by statutes 10 locus
guilty on
classicus 270, 307 locus stand
account of 206 as absence of
i 5, 11
mens-rea 207
M
Judge 89, 126, 161, 204,
Magistrate 5, 106, 132 arrest
257, 261, 310 Judgment 215,
by 19 Chief 106 court 106
222
Resident 106
and sentence 165 order on 222 Jurisdiction 23, 115, 276, 299, 313 objection to 141 of the criminal courts 107 revisional 294 of Supreme Court 286 under Criminal Procedure Code 51 Jury 166, 169, 199 L Law 162, 284, 287 aided by criminal procedures 31 harbeas corpus 284 of England 129 'question of 116 to determine bail decision 42 valid arrest 17 written 70 Limitation 10, 174 of time 8, 268 Page 378 of 382
aistricc iu / malice 5, 144
105, 108, 144, 187, 188
accused stands mute of 140
after finding of guilty and
Mute 140, 144
sanity 210
N Nolle prosequi 12
an evaluation of the 211
0
if accused pleads guilty 148
Offence 74, 132
Proceedings 130, 132, 257
nature and seriousness 42
resumption of 190
Offences 118, 219 fears of further 41 Offenders 236 treatment of juvenile 240 P Pardon
102,
144
Pari
materia 26 Particulars 76 of the offence charged 74 Persons 107, 141, 230, 138, 261 joinder of 84 Plea 98, 102, 104, 135 of autrefois acquit, autrefois convict, and pardon 102 of guilty 101-103, 139 of not guilty 140, 149 recording
of
99
Police
officer 18 arrest by 17 Practice 13, 241 Private
5,
6,
11,
20
Probation 43, 173 of offenders 236 Procedure Page 379 of 382
prosecution i, 1.2,, iuo, ivo
Sections 71 /
private 4, 6
of guilty 28
Punishment 229, 231, 241
of penal code 72
the severity of 43
Security 56, 65, 57, 189, 229,
purpose of 260
258, 235 Sentence 165, 223,
R
252
recognisance 57, 66, 122,
suspended 240
235 Records 180, 278, 294
for dangerous driving 251
Reforms 63, 64, 167, 185
free on bail 68
Restitution 241, 243 Retrial
funtus officio 104
40, 179, 305-308, 310
judgment 295
of justice 309, 310 .Revision 288, 290, 294, 302-304 funtus officio 291 of case I of sentence 291 Right 130, 299, 309 of appeal 107, 263, 293, 300 of appeals 3 of complaint 4 of freedom and liberty 196 of insanity 200, 202 of prosecution 112, 156 to bail 33, 34, 59, 62 to freedom of speech 261 Searches 24-28 with a search warrants 24 which searches warrant 24 without a search warrant 27 Page 380 of 382
of corporal punishment Zyj
113, 114, 115, 118
of guilty 249 of imprisonment 229, 235, 298 of justice 253 of not guilty 103 of police supervision 238 suo motu 290 Sentencing 227, 245, 269, 298 historical development of 224 in Kenya 247 in traffic cases 244 of criminal justice 223 young
persons
and
245
Settlements 238 Silence 140 Structure 58, 106, 185 of
criminal
courts
107
Success 48 Sudden deaths 313 Supervision 18, 131, 238, 301 of convicted person 237 Sureties 14, 31, 41, 53, 64, 237 of bail bond 57 T Traffic 114, 244-245, 266, 310 of cases 113, 115 Transfer Page 381 of 382
effect of 117 of case 114, 115 of criminal cases 113 Trial 108, 116, 279, 286, 297, 310 for murder 309 in the
high
court
131
of
assessors 168 of criminal 1 of insanity 201 of justice 312 of manslaughter 38 procedure in the subordinate courts 105 the hearing and conduct of the 148 w Warrant 17, 20, 24, 27, 90, 280 by the officer 21, 25 for detention 189 of arrest 18, 21, 65 of
bail
pending
52
Withdrawal 12, 13, 15 by defence 15 of guilty 103 Y Young 60, 61, 83, 230, 240, 246 persons and sentencing 245
Page 382 of 382
A HANDBOOK ON CRIMINAL PROCEDURE IN KENYA
P. L. O. LUMUMBA Ph. D
Page 1 of 382
Publication Financed by: University of Nairobi Enterprises and Services (UNES) Ltd P.O. Box 30197 Nairobi. Tel: 714240/7114144 A P.L.O Lumumba Publication © P.L.O Lumumba 1998 First Published in 1998 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior permission of the Author. Computer Typesetting by: Dypac Information Technology Consultants P.O. Box 49482 Nairobi Tel: 334092 Publishing Consultancy Printing by: Business Trends Limited P.O. Box 74327 Nairobi Tel: 554397 ISBN 9966-939-00-8
Page 2 of 382
CONTENTS Foreword .........................................................................................……
xii
Acknowledgement ..................................................................................
xiii
Introduction ............................................................................................ xiv Dedication ..................................................................................……… xviii Table of Statutes ........................................................................................
xix
Acronyms .................................................................................................
xx
Table of Cases ...........................................................................................
xxi
CHAPTER I: THE NATURE OF CRIMINAL PROSECUTIONS 1
A. Introduction ..................................................................................
1
B. The Attorney - General's Constitutional Position ......................
2
C. Private Prosecution ........................................................................
4
D. Limitation of Time ......................................................................
8
CHAPTER II: CONTROL OF PROSECUTIONS .....................
12
A. Introduction.....................................................................................
12
B. Nolle Prosequi.................................................................................
12
C. Withdrawal ......................................................................................
15
CHAPTER III: ARREST ...........................................................…….
16
A. Introduction ....................................................................................
16
B. Arrest Without Warrant .................................................................
17
i) Arrest by a Police Officer .....................................................……….
17
ii) Arrest by Magistrate ..........................................................……….
19
iii) Arrest by a Private Person …................................................……..
20
Page 3 of 382
C. Arrest with Warrant ........................................................................
20
D. Others ..............................................................................................
22
E. Conclusion .....................................................................................
23
CHAPTER IV: SEARCHES AND SEARCH WARRANTS ……… 24 A. Introduction …………………………………………………….
24
B. Searches with a search Warrants ……………………………….
24
C. Searches without a search Warrant …………………………….
27
D. Conclusion ………………………………………………………
29
CHAPTER V: Bail ………………………………………. ……. A. Introduction……………………………………………………..
31
B. Bail in Kenya …………………………………………………
32
C. Constitution of Kenya (Amendment)Act, No. 20 of 1987……
37
D. The abolition of the Discretion of the High Court …….. …….
38
E. Pre-Trial Bail …………………………………………………
40
F. Bail pending Appeal ………………………………….………
46
G. Sureties ………………………………………………………
53
H. Bail Bond …………………………………………………….
56
I. Renewal of Bail Application …………………………... …….
58
J. Bail as viewed by the High Courts ……………………………
60
K. Variance between Law and practice …………………………
62
L. Suggested Reforms ………………………………………….
63
M. The law of bail: Further thoughts on reform..……………….
64
Page 4 of 382
CHAPTER VI: CHARGES AND INFORMATION ……….
70
A.
Introduction ……………………………………………..
70
B.
Charges ………………………………………………….
70
C.
Effect of Citing Wrong or Non-existent Sections ……….
71
D.
Particulars of the Offence Charged ……………………...
74
E.
Lack of particulars and wrong ingredients ………………
76
F.
General form …………………………………………….
79
G.
Joinder of Counts ………………………………………..
81
H.
Joinder of persons ………………………………………..
84
I.
Duplicity …………………………………………………
87
J.
Alternative Charges ………………………………………
92
K.
Amendment of Charges …………………………………..
93
L.
Amendment after conviction………………………………
95
M.
Quashing of information …………………………………
95
N.
Conclusion …………………………………………………
96
CHAPTER VII: PLEAS ……………………………………
98
A.
Introduction……………………………………………….
98
B.
Plea Taking in the subordinate Courts…………………...
99
C.
Recording of pleas……………………………………….
99
D.
Plea of Autrefois Acquit, Autrefois Convict and pardon.
102
E.
Change of plea and the Functus officio Rule……………
102
F.
Plea bargaining……………………………………………
104
Page 5 of 382
CHAPTER VIII: TRIAL PROCEDURE IN THE SUBORDINATE COURTS……..
105
A.
Introduction……………………………………………… 105
B.
The Structure and Jurisdiction of Criminal Courts……… 107
C.
Trial procedure:………………………………………….. 108
i)
The prosecution Case………………………… 108
ii)
Prima-facie Case………………………………. 110
iii)
The defence Case…………………………….. 111
CHAPTER IX: TRANSFER OF CASES………………….
113
A.
Introduction………………………………………………..
113
B.
Factors Giving Rise to Transfer…………………………..
114
C.
Effects of transfer………………………………………….
117
CHAPTER X: TRIAL IN THE HIGH COURT……..
131
A.
Introduction……………………………………………
B.
Committal proceedings and the Committal in the High court 132
C.
Arraignment and the Plea………………………………. 135
D.
Taking the Plea…………………………………………. 138
131
i)
Plea of guilt………………………………….
139
ii)
Plea of not guilty…………………………….
140
iii)
Option of silence…………………………….. 140 Page 6 of 382
iv)
Objection to jurisdiction……………….…….. 141
v)
Demurrer…………………………………
vi)
Autrefois Convict………………………..143
vii)
Autrefois Acquit………………………….
143
viii)
Pardon…………………………………….
144
E.
142
Procedure when Accused Stands Mute of Malice or is
Deaf and/or Dumb…………………………………….
144
F.
procedure when Accused Pleads Guilty: The practice…
148
G.
The hearing and conduct of the trial……………………
148
H.
Conduct of the case and Order of Hearing………….….
149
I.
Summing up to Assessors…………………………..
…
159
J.
The role and conduct of Judges and Assessors……..
…
161
K.
Judgment and Sentence……………………………..
…
165
L.
Conclusion……………………………………………..
165
CHAPTER XI: ASSESSORS…………………………… 166
A.
Introduction…………………………………………….. 166
B.
Evaluation of the Assessors System in Kenya…………. 167
C.
The Assessor System and the Jury System……………… 169
D.
Procedural Aspect of the Assessor System……………. 170
E.
Selection of Assessors………………………………….. 171
F.
The assessor in court……………………………………. 177
G. Opinion of Assessors…………………………………….. 181 H. Assessors as expert……………………………………… 183 I. Evaluation And Recommendations…………………….. 184 J. A Case for reform……………………………………….. 185
CHAPTER XII PROCEDURE IN CASES OF INSANITY.. 187 Page 7 of 382
A.
Introduction ………………………………………………..
B.
Procedure in case of lunacy or other incapacity of
the accused person……………………………………
187
188
C.
Resumption of proceedings……………………………. 190
D.
Refusal to plead insanity……………………………….. 196
E.
Insanity and the prosecution…………………………… 196
F.
Position in Kenya……………………………………… 202
G.
Insanity as a Defence: The verdict of “Guilty But Insane” versus “Not Guilty On Account of Insanity”…
204
H.
Insanity: Evolution……………………………………… 205
I.
“Guilty
but
insane”
Insanity?’’………………..
or
“Not
guilty
on
Account
206
J.
Insanity as and Absence of Mensrea…………………… 207
K.
Procedure after a finding of “Guilt” and “ Sanity”……… 210
CHAPTER XIII: JUDGEMENT……………………….
215
A. Introduction……………………………………………. 215 B. Delivery………………………………………………... 215 C. Form and Content……………………………………… 218 D. Minor and Cognate Offences…………………………..
219
E. Order of Judgment……………………………………
222
F. Conclusion……………………………………………..
222
CHAPTER XIV: SENTENSING…………………………….. 223 A. Introduction……………………………………………. 223 B. Historical Development of Sentencing and Punishment.. 224 Page 8 of 382
of
C. Objectives of Sentencing……………………………….. 227 D. The Available Sentences………………………………… 229 i)
Capital Punishment………………………….. 229
ii)
Imprisonment………………………………… 229
iii)
Detention in detention Camps……………….. 230
iv)
Corporal Punishment…………………………. 231
v)
Fines…………………………………………. 231
vi)
Forfeiture…………………………………….. 233
vii)
Compensation………………………………… 234
viii)
Security for good behavior…………………… 235
ix)
Absolute and conditional Discharge…………. 235
x)
Probation……………………………………… 236
xi)
Extra-mural Penal employment………………. 237
xii)
Police Supervision……………………………. 237
xiii)
Settlements……………………………………. 238
xiv)
The treatment of juvenile offenders…………… 240
xv)
Suspended Sentence…………………………… 240
E.
Alternatives to Imprisonment and Corporal Punishment….
241
F.
Compensation: Revisited………………………………….
242
G.
Restitution……………………………………………….. 243
H.
Costs……………………………………………………….
I.
Sentencing in Traffic Case………………………………. 244
J.
Young persons and sentencing…………………………. 245
K.
Sentencing in Kenya…………………………………...
L.
Concurrent and Consecutive Sentences………………… 249
M.
Alteration of Sentence and Committal…………………. 252
N.
Committals……………………………………………… 254
Page 9 of 382
247
244
CHAPTER XV: CONTEMPT OF COURT PROCEEDINGS…257 A. Introduction…………………………………………….. 257 B. Contempt of Court in Court Proceedings…………………258 C.Criminal Contempt…………………………………….
258
D.
Contempt in the face of Court…………………………
259
E.
Purpose of Punishment………………………………..
260
F.
Liability……………………………………………….
261
i) Wards of Court………………………………..
263
ii) Mental Disorders……………………………….
263
H.
Appeals from Order……………………………………. 263
I.
Execution and discharge………………………………... 263
CHAPTER XVI: APPEALS………………………………… 264 A. Introduction……………………………………………. 264 B. Appeals from subordinate Courts……………………… 264 C Competence of Appeal under Section 348(A)…………. 267 D.
Limitation of time……………………………………… 268
E.
Summary Rejection and Precision of the Appeal……...
269
F.
Summary Allowance of Appeals………………………
272
G.
Admission of Additional Evidence on Appeal………...
273
H.
Appeals from the High Court………………………….
276
I.
Constitution of the court in its Appellate Jurisdiction…
276
J.
Appeal in the absence of written records……………… 278
K.
Conclusion……………………………………………... 279
CHAPTER XVII: DIRECTION IN THE NATURE OF Page 10 of 382
HABEAS CORPUS…………………… 282 A.
Introduction…………………………………………… 282
B.
Territorial Ambit of Habeas Corpus…………………… 283
C.
Habeas Corpus………………………………………...
284
D.
Application of Habeas Corpus……………………….
287
CHAPTER XVIII: REVISIONS…………………………………
A.
Introduction……………………………………………. 288
B.
Revision in Practice……………………………………. 290
C.
Extent of powers of revision…………………………… 294
D.
Revision Jurisdiction When Right of Appeal Exists and is Not Exercised……………………………………
288
299
E. A Finding of Autrefois Acquit and Revision………….. 302 F.
Effect of Revision of a Civil Case upon a Criminal case.. 303
CHAPTER XIX: RE-TRIAL……………………………………
A.
Introduction…………………………………………….. 305
B.
Orders for retrial……………………………………….. 305
CHAPTER XX: INQUIRIES AS TO SUDDEN DEATHS…..
A.
Introduction……………………………………………. 313
B.
Inquest Jurisdiction…………………………………….
C.
Inquest where death occurs in police custody or prison.. 313
Findings after Inquest………………………………….
Page 11 of 382
314
313
305
313
FOREWORD Law students, practitioners, judicial officers and academics will breathe a sigh of relief as they can now resort to a comprehensive hand book on Criminal Procedure for quick reference. The book is written in simple language which affords a comprehensive treatment of the subject. The book is made rich because it incorporates the most recent unreported decisions of the Court of Appeal and the High Court of Kenya, most of which may not be easily available to the reader due to the haphazard and unsystematic law reporting system currently prevailing in the country. The book also affords quick and precise comparison of the subject with the English and the American systems where appropriate.
The author of the book has done service to the development of the law in Kenya, not only in devoting time to the writing and compilation of a much needed book, but the admirable and reliable treatment of the subject of the Criminal Procedure based on the latest decisions of the Highest Court in the land. The author must also be commended for ensuring the book is available at the shelves at such a reasonable cost to the reader.
As the author is a practising lawyer and lecturer at the Faculty of Law, University of Nairobi, this book cannot have a more authoritative source.
PAUL M. WAMBUA ADVOCATE & LECTURER AT THE KENYA SCHOOL OF LAW
Page 12 of 382
INTRODUCTION This book is written for Law Students, Practitioners, Judicial Officers and Academics. It is written as a Handbook to be resorted to for quick reference. At the same time, it provides comprehensive treatment of the subject. The book covers most of the key areas of Criminal Procedure that interest the Student, the Practitioner, the Magistrate, the Judge and the Academic. There are a number of chapters that puritanical students of procedure may consider out of place but are rendered here owing to their close nexus with procedure in a manner that underscores the often quoted statement, Procedure is the handmaiden of Substance. The chapters in the category include those of Criminal prosecutions, Methods of Controlling Prosecution, Contempt of Court Proceedings, Directions in the nature of habeas corpus and inquiries as to sudden deaths. Elucidation, analysis and exposition of basic requirements of procedure and aspects of criminal law, criminology and penology that are germane have been employed and dovetailed to help deal with Kenyan Criminal Procedure. In cases where the use of comparative jurisprudence is deemed necessary reference has been made to principles of English and American Law. Reference has also been made to the decisions of the former East African Court of Appeal arising from Uganda and Tanzania under the 'pari materia' rule. Heavy reliance has been placed on judgements of the Court of Appeal and the High Court. Owing to the absence of systematic and sustained law reporting most recent cases that are used are un reported. Decisions of the superior courts of Common Law Countries like the United States of America and England have been used in spite of their little precedential value, a number of decisions by magistrates have also been referred to where there is paucity of other judicial opinion. Extensive reliance has been placed on the Constitution and a number of statutes principally the Criminal Procedure Code (Cap. 75), The Penal Code (Cap. 63), the Evidence Act (Cap. Page 13 of 382
80) and the Traffic Act (Cap. 403). Being a Legal Practitioner and a teacher, the author has made certain observations and rendered opinion informed by these experiences but germane to the discourse in this book. This book is divided into Twenty one Chapters arranged deliberately into sub-topics for ease of reference and reading. To enhance clarity most chapters commence with an introduction some of which take a historical bent. To enhance the reading of this book it is necessary to outline the basic contents of each of the Twenty One chapters. Chapter 1 deals with the general nature of Criminal Prosecutions. There is mention of the Attorney-Generals constitutional position vis-a-vis prosecutions. There is equally an elaborate discussion on private prosecution. Chapter 2 deals with the subject of control of prosecutions. These are basically through, a Nolle Prosequi and Withdrawal. Chapter 3 covers arrest. The requisites for a valid arrest are given. Since arrests can be with or without a warrant, the circumstances under which the same can be effected and discussed. The chapter also identifies those who are legally mandated to effect arrest. Chapter 4 deals with searches and search warrants. Of special, interest are searches without warrants and searches with warrants. Chapter 5 examines the subject of bail. After giving a brief historical account of the development of the subject, bail in Kenya is examined extensively. There is a discussion of both pretrial bail and bail pending appeal and the factors to be considered in each case. It is also noted that there is a variance between law and practice and reforms are suggested. The Chapter then concludes by looking at bail as viewed by the Courts. Chapter 6 deals with charges and information. It analyses such aspects of a charge, like contents of a charge, the effect of citing wrong or non-existent sections of the law, and rules regarding the framing of dirges. Chapter 7 is on pleas. It examines the importance of and the procedure of Page 14 of 382
taking and recording pleas in the subordinate, courts. The pleas of' autrefois acquit', 'autrefois convict' and pardon are discussed. Change of plea and its effects is examined as well as the concept of plea bargaining. Chapter 8 is on trial procedure in the subordinate courts. It gives the structure of the court system in Kenya and the jurisdiction of Criminal courts. The trial procedure is examined in detail from the prosecution case, a finding of prima facie case upto the defence case. Chapter 9 deals with transfer of cases. It examines factors giving rise to a transfer and the factors that the High Court takes into cognisance before effecting a transfer. It concludes by giving the effects of a transfer.
Chapter 10 is on trial in the High Court. It deals with arraignment and plea-taking and the procedures to be followed.
Chapter 11 is on assessors. It begins with a discussion of the evolution of the assessor system in Kenya. Comparison between the assessor and the Jury system is undertaken. Selection of assessors and their role and/or importance to trials in the High Court is also undertaken.
Chapter 12 examines procedure in cases of insanity and begins with a historical account of the law relating to insanity. Insanity is discussed at two levels:- Insanity at the time of trial and insanity at the time of commission of an offence.
Chapter 13 is on judgments. It highlights the subtleties of a judgment delivery, form and content.
Chapter 14 deals with sentences.
After giving a brief historical
development of sentencing and punishment and the objectives of sentencing, the Page 15 of 382
various sentences are highlighted. The sentencing of young persons and sentencing examines committal proceedings beginning with its origin. To enhance the understanding of the Committal process a brief discussion of the erstwhile process of preliminary enquiries is undertaken.
Chapter 16 is on appeals. It highlights the rules governing appeals, the rules governing summary allowance and rejection of appeals and mentions those entitled to appeal against convictions, sentences and acquittals.
Chapter 16 addresses contempt of court proceedings and the attendant modes of punishment. Chapter 18 is on directions in the nature of habeas corpus. It provides insight into the nature and types of the writ of habeas corpus and concludes by setting out the procedure for seeking the writ of habeas corpus. Chapter 19 covers revisions. The procedure on revision is discussed and the extent of powers on revision. Reference is made to instances such as, revisional jurisdiction when right of appeal exists and is not exercised; a finding of 'autrefois acquit' vis-a-vis revision and the effect of revision of a civil case upon a criminal case based on the same facts.
Chapter 20 covers retrial and addresses instances and reasons for which a retrial may be ordered. Chapter 21 examines enquiries in cases of sudden deaths.
Page 16 of 382
DEDICATION Dedicated to my uncles M. T. Onono and Dr. W. E. Onyango whose generosity in adversity set me on the path of knowledge.
Page 17 of 382
TABLE OF STATUTES 1.
Constitution of Kenya Text of Revised Edition (1998) 1992
s
14 .........................................................................................
261
s
26 .........................................................................................
3,4
s
26(3) ......................................................................................
12
s
26(3) (b) ................................................................................
4
s
27 .........................................................................................
144
s
60(1) ......................................................................................
37
s
65(1) ......................................................................................
1Q5
(2) ...................................................................................... 105 s
67 ..........................................................................................
105
s
72 .........................................................................................
32,33
s
72(1) ......................................................................................
213
s
72(3)(b) .................................................................................
33
s
72(5) ......................................................................................
36,37
s
77(1).......................................................................................
8,188
s
81(1) ......................................................................................
10,36
s
123 ........................................................................................
36
2. Criminal Procedure Code. (Cap. 75) s
21& 24 ................................................................................
16
s
22 ........................................................................................ -
27
s
26 ..........................................................................................
27
s
29 ..........................................................................................
18
s
34(1) .....................................................................................
20
s
36 ..........................................................................................
56,63
s
38 ..........................................................................................
19
s
42 ..........................................................................................
19
s
78...........................................................................................
1H
s
78, 79, 80 & 81 ....................................................................
H3
Page 18 of 382
s
82 ..........................................................................................
Page 19 of 382
8
s
83 .........................................................................................; 14
s
87 ..........................................................................................
143
s
88 ..........................................................................................
7
s
88(1) ......................................................................................
37
s
88(1.3) ...................................................................................
134
s
88&89 ...................................................................................
H
s
89 ..........................................................................................
34
89(1)………………………………………………………………..70 s 99 ............................................................................................. 148 s 102 .......................................................................................... 21 s 105 ........................................................................................... 21 s 120 ........................................................................................... 24 s 123 ........................................................................................... 54,64 s 123(1) ....................................................................................... 34,36 s 125 ...................................................................................... . 56 s 130(1) .................................................................................. 65 s 131(1) .................................................................................. 65 s 135(1) .................................................................................. 82,133 s 135(2) .................................................................................. 91 s 136 ...................................................................................... 84 s 137 ...................................................................................... 79 s 162 ...................................................................................... 193 s 162-167 ............................................................................. 188 s 162 & 280 .......................................................................... 190 s 166 ...................................................................................... 190 s 167 ...................................................................................... 146 s 168 ...................................................................................... 215,222 s 169 ...................................................................................... 218,311 s 170 ....................................................................................... 218,222 Page 20 of 382
s 171(2) .................................................................................. 244 s 175 ....................................................................................... 235 s 177 ....................................................................................... 243
Page 21 of 382
s 179 ...............................................................
219,221
s 181 ...............................................................
221,222
s 193 ..............................................................
149
s 201 ..............................................................
161
s 207 .............................................................
108
s 207(1) ..........................................................
188
s 211 ................................................................
111
s 214 ...............................................................
137
s 219 ...............................................................
8
s 220 ..............................................................
124,131
s 221 ..............................................................
254
s 230 ..............................................................
131
s 231 ..............................................................
136
s 230(b) ..........................................................
131
s 233 ..............................................................
132
s 234 ..............................................................
131
s 230-249 .....................................................
119
s 235 ..............................................................
153
s 253 ..............................................................
134
s 261 .............................................;................
181
s 262 ..............................................................
170
s 263 ..............................................................
173
s 263 & 297 ..................................................
176
s 274 ..............................................................
136
s 276 ..............................................................
96
s 279(2) ..........................................................
220
s 279(a) ..........................................................
143
(b) ........................................................ s 280 .............................................................. Page 22 of 382
143 144,189
s 283 ..............................................................
149
s 298(1) ..........................................................
165
s 300 ..............................................................
149
Page 23 of 382
s 305(1) ..........................................................
298
s 322 ..............................................................
160,171
s 322(1) ..........................................................
159
s 330 ..............................................................
165
s 335 ..............................................................
234
s 336 ...............................................................
235
s 343-345 .......................................................
237
s 345 ..............................................................
238
s 346 ..............................................................
89
s 347 ..............................................................
74
s 348 .........................................;....................
48
s 348(a) ..........................................................
4,267
s 349 ..............................................................
268
s 352 ..............................................................
269
s 352(2) ..........................................................
270
s 352(a) ..........................................................
272
s 354(3) ..........................................................
252
s 354,357 & 358 ...........................................
288
s 357 ..............................................................
48,51,275
s 358 ..............................................................
277
s 359 ..............................................................
277
s 360 or 378 ...................................................
286
s 361(1) ..........................................................
7
(1)&(7) ................................................ s 362 ...............................................................
7 288,295
s 364 ............................................................... 288,295,300 s 364(1) ..........................................................
295,296
s 364(2) ..........................................................
289
s 364(5) ..........................................................
289,299
Page 24 of 382
s 364(1) (b) .....................................................
302
s 379 ..............................................................
147
s 382 .............................................................. 73,75,134,160,216,219
Page 25 of 382
s 385-388 ............................................................................
3L3
s 389 ...................................................................................
282
s 389(1) ...............................................................................
284,286
(2) ..............................................................................
287
3. Police Act (Cap. 84) s 23 .....................................................................................
56
4. Prisons Act (Cap. 90) s .............................................................................................
237
5. Traffic Act (Cap. 403) s .............................................................................................
244,310
6. Vagrancy Act (Cap. 58) s .............................................................................................
18
7. Penal Code (Cap. 63) s 12 ......................................................................................
141, 212
s 14(1) .................................................................................
142
s 15 ......................................................................................
142
s 21 ......................................................................................
250
s 24 ......................................................................................
229
s 27(3) .................................................................................
245
s 31 ......................................................................................
234
s 35 .....................................................................................
295
s 58 ......................................................................................
141
s 121 ....................................................................................
257
s 121(1) ...............................................................................
257
s 129(a) ...............................................................................
80
s 228 ..................................................................................
191
s 243(b) ...............................................................................
221
Page 26 of 382
s 246 ...................................................................................109 s 251 ....................................................................................
239
s 275 ...................................................................................93 s 279 .........................................................................................
255
s 279(c) ..................................................................................... 52 s 280,281,282 or 283 ..............................................................
80
s 296 .........................................................................................
247
s 304 .........................................;...............................................
96
s 306(a) ..................................................................................
91, 256
s 322 .........................................................................................
93
s 323 .........................................................................................
27,29
s 367(e) ..................................................................................... 75 s 367(e)&(a) ...........................................................................
75
s 352 & 356 .............................................................................
294
s 389 .........................................................................................
76
8. Magistrates Courts Act (Uganda) s 7 .............................................................................................
142
s 11 ...........................................................................................
276
s 197,198 & 199 ......................................................................
161
9. Public Order Act (Cap. 56) s 9(1) ......................................................................................... 71
10. Traffic Ordinance 1951 (Uganda) s 9(a) ......................................................................................... 73 s9(b) .......................................................................................... 73,74
11. Mental Treatment Act (Cap. 248) s 30 ........................................................................................... Page 27 of 382
214
Page 28 of 382
12. Children and Young Persons Act (Cap. 141) s 16(3) ...........................................................246 s 17 ............................................................... 240, 245 13. Borstal Institutions Act (Cap. 72)
246
14. Administration Police Act (Cap 85)
18
15. Game (Preservation and Control) Act (Cap. 266) (Uganda) 76 16. Privileges and Immunities Act. Cap 179
22, 141
17. The Constitution of Kenya (Amendment) Act, No. 9 of 1997. 35 18. The Statute Law (Repeals and Miscellaneous Amendments) Act, No. 10 of 1997 s .........................................................................................
Page 29 of 382
141
ACRONYMS Kenya Evidence Act. Criminal Procedure Code. All England Reports. Israel Law Reports. East African Law Reports. Kenya Law Reports. Miscellaneous Application Kenya High Court Decisions. Court of Appeal Reports. Uganda Law Reports. India Law Reports. Australia Law Reports. West African Court of Appeal. Tanzania Law Reports. Ireland Reports. Criminal Law Review Criminal Application Queen's Bench Division Legal Notice Master of the Rolls Chief Justice Penal Code Chapter Modern Law Review Criminal Application High Court of Tanzania Attorney-General
Page 30 of 382
TABLE OF CASES A.G-vs-Marakaru(1960)EA 484 .......................................................
265
A.G -vs- Kelly (1938)I.R ..................................................................
306
Abdallah Change -vs- R (1964)EA ...................................................
94
Abdalla Omer -vs- R (1958)EA 725 .................................................
179
Abdullah -vs- R (1963) EA ..............................................................
50
Abdullahi Ali-vs- R (1958)EA ..........................................................
181
Adan -vs- R [1970] EA .....................................................................
101
Adam Mwambalafu -vs- R (1966) EA 45..........................................
89
Aganyi -vs- R (1960)EA ...................................................................
254
Ahmed Hirsi Mohamad -vs- R (1958)EA .........................................
233
Ahmed Mohamed -vs- R (1959)EA.1087 .........................................
235
Ahmedali Ali Dhalamasi Sumar -vs- R (1964)EA 481 ....................
308
Alexus Afumu & Another -vs- R (1953)26 K.L.R .............
108,148
Ali Mohammed Hassani Mpanda -vs- R (1963)EA .........................
221
Aloys Awori -vs- Uganda (1972)EA 469 .................................... 309 Amand -vs- Home Secretary & Another (1943) A.C ...................
286
Andiazi -vs- R (1967)EA 813 ........................................................
175
Andrea s/o Kulinga -vs- R (1958)EA 684 ..........................
159,178
An Application for Directions in the Nature of Habeas Corpus by Keshavlal Punja, (1955)22 EACA 381 ...............
282,287
Arnold Pudo s/o Aranda -vs- R (1960)EA 380 .....................
269,271
Attorney-General -vs- Times Newspapers Ltd(1973)l All ER .........
23
Augustine Chebon A. Cherutich -vs- R Cr. App. No.16 of 1982 .....
162
Avone -vs- R (1969) EA ............................................................ 71,132 Baland Singh-vs-R (1954) EACA .............................................. 182 Baland Singh -vs- R (1954)21 EACA ........................................... Benjamin Sauzier -vs- R (1962)EA .......................................
94
Bracegirdle -vs- Oxiey (1947)1 All E.R .......................................... Page 31 of 382
179
265
Bratty -vs- Attorney-General for Northern Ireland (1961)3 WLR 965 ................................................................................
Page 32 of 382
199
Byarutu Gata -vs- R [1950] 17 EACA .........................................
101
Chander Kanta Sethi -vs- R (1962)EA 523 ....................................
231
Cherere Gukuli -vs- R (1955)22 EACA 478 .................................
91
Christopher Omufira Akwabi -vs- R Cr. App. No. 131 of 1989 ......
80,97
Consolidated Exploration and Finance Co. Ltd -vs- Musgrave (1900) 64 J.P .........................................................................
53
Desai -vs- R (1971) EA .................................................................
99
Desiderio Kawunya -vs- R (1953)20 EACA ...................................
312
Dhalamini -vs- King (1942) A.C 583 .....................................
166
Durham -vs- US 214 R 2d 862, ................................................ 203,208 Edwards (Inspector or Taxes) -vs- Bairston & Another (1953)3 All E.R ......................................................................
266
Elgood -vs- R (1968)EA ......................................................
273
Ekai Paul -vs- R Crim. App. No. 15 of 1981 ..........................
184
Ellis -vs- State (1930) ALR 783 ..............................................
215
Eliud Mwaura -vs- R Crim. App. No. 446-of 1986 ..................... 38,39 Eneriko Lutalo -vs- R (1966)EA 328 .....................................
216
Ex-parte Malley 50 Nev.248 (1927)53 A.L.R 395 ........................
45
Fatehali Manji -vs- R (1966) EA 343 ..............................................
3Q6
Fazal & Tryabali and Another -vs- R (1959) EA 29 ................ 277 Fernandes-vs-R (1957) EA ......................................................... 304 Francis Juma Musungu-vs-R (1958) EA ................................... lg2 Francis Muzungu (Francis) -vs- R (1958)EA ........................... 179 Galos & Another -vs- R (1944) A.C ......................................... 308 Grace Ibingira -vs- A.G. of Uganda (1966)EA p .............................
285
Gouriet-vs-Union of Post Office Workers (1978) A.C 435 .........
5,135
Govindji -vs- Regina (1954) 21 EACA ..................................... 52 Habib Kara Vesta -vs-R (1943)1 EACA ..................................... 181 Haining & Others -vs- R (1971)EA 421 ................................... 269 Page 33 of 382
Hando -vs- R (1951)18 EACA ................................................. 138 Hasham -vs- R Crim. Appeal No. 582 of 1967 (Un-rep) ................
50
Islam Ali-Abdullah -vs- R Crim. Application No. NAI.2 of 1989 .... 52 Jaffer s- R (1973) EA ................................................................ 64
Page 34 of 382
James -vs- R (1950)18 EACA ................................................... 253 John Brown Shilenje -vs- R Cr. Appl. 180 of 1980 ..............
113 116
Jones -vs- National Coal Board (1957)2 All E.R. ..................... 152 Jopley Constantine Oyieng' -vs- R - Criminal Appeal No. 45 of 1988 ................................................................................
3
Joseph Odhengo s/o Ogongo -vs- R (1954)21 EACA .....................
258
Kabeni -vs- R (1970) EA 503 ................................................... 236 Kaisa-vs- R (1975)EA ......................................................................
245
Kamau s/o Muga-vs- (1963)EA ........................................................
84
Kamau -vs- R (1975)EA ...................................................................
272
Kamlesh M. Pattni -vs- R Cri. App. No. 31 of 1995 ........................
56
Kamlesh M. Pattni -vs- R Cri. App. No. 88 of 1995 ................ 56 Kamundi -vs- R [1973] EA 540 ................................................ 103 Kamwana s/o Muria -vs- R (1958) EA 471 .............................. 82 Kanja Muguku -vs- R Cr. App. No. 397 of 1983 ........................ 255 Kaplotwa s/o Tarino -vs- R (1957) EA 553 ......................................
192
Karioko s/oGichohi.vs-R(1950)17 EACA ......................................
270
Katungo Mbuki -vs- R (1962)EA 682 ....................................... 255 Kenera Opidi-vs-R (1965) EA 614 ..................................................
132
Keshallila -vs- R (1963)EA ...................................................... 298 Keteta -vs- R (1972)EA 532 ...................................................... 246 Khalif-vs- R (1973)EA 364 .....................;................................ 251 Kimanzia -vs- R (1972) EA 495 ...................................................
237
Kimani & Maina -vs- Nathan Kahara H.C.C (Misc) App. No. 11 of 1988 ................................................................................
135
King Emperor -vs- Tramal Reddi (1901) ILR 24 Madras 523 ........163 167 Kinyori s/o Kiraditu -vs- R (1956) EACA 480 .......................
151
Kirby vs- King (1714)93 E.R. 338 .........................................
40
Kityo -vs- Uganda (1967)EA ..................................................... 27 84 Page 35 of 382
Kionywaki-vs-R (1968) EA 195 ...................................................... Kiwala -vs- Uganda (1967)EA 758 ...................................... Kuyate -vs- R (1967)EA 815 ............................................................ Koech -vs- Republic .................................................................... 28
Page 36 of 382
19 290 292 272
Laban Koti -vs- R (1962)EA 439 ......................................................
134
Lall Khan -vs- R 17 EACA .............................................................
286
Lamabutu Mokalya -vs- R (1958)EA 706 ......................................
180
Lambert Houareau -vs- R (1957) EA 575 ........................................
161
Laurenti Busolo s/o Mukumba -vs- R (1957)EA .................
165,179
Lebiningin -vs- R (1974) EA .................................................... 78 Letoyiania Another -vs- R (1972)EA ..............................................
246
Lighten alias Magere -vs- R (1951)18 EACA .................................
270
Loibon -vs- R (1949)16 EACA ........................................................
132
Lujo -vs- R (1946)EA 13 EACA .............................................
132
Mahlikilili Dhalamini & Others -vs- R (1942) A.C 589 ………………………………………………………….......
163,182
Mahmood vs- R (1974)EA .............................................................. Maina vs- R (1970)EA 370 ...............;...................................
57
247, 269
Margaret Magiri Ngui -vs- R Crim. App. No. 59 of 1985 ...............
36
Masran -vs- R (1960) EA 321 ...........................................................
47
Maumba -vs- R [1966] EA ...............................................................
103
Mbebi vs- R (1957) EA 426 ...........................................................
112
M'Kanake -vs- R (1973)EA .............................................................
309
Meek -vs- Powell (1952)1 K.B .........................................................
297
Merali & Others -vs- R (1971) EA ..................................................
310
Merali -vs- R (1972) E.A 47 .............................................................
48, 51
Mehar Singh Bensel -vs- R (1959)EA 813 .....................................
160
Mehar Singh vs- R (1951) U.L.R ....................................................
243
M'bui -vs- Dyer (1967) EA ..............................................................
20, 33
M'Mwenda -vs- R [1957] E.A 429 ..................................................
101
Michael Otieno Ademba -vs- R (1983)1 C.A.R 187, (Court of Appeal Reports) .......................................................
51
Michael Meshaka -vs- R (1962)EA ......................................
….. 292, 293
Page 37 of 382
Misana -vs- R (1967)EA 334 ...........................................……
279
Mka -vs- R (1969)EA 598 ....................................................
232
Motichand -vs- R (1972) EA 399 ............................................. 47 Mohamedi & Another -vs- R (1973)EA 1907 ................................ Mohamed vs- R (1969)EA ..............................................
164
233
Mohamed Juma -vs- R.I.T.L.R .......................................………..
232
Mohammed Hussein -vs- Price Controller (1943)10 EACA ...........
275
Mohanlal Trivedi -vs- R ............................................................ 26 Mongella-vs-R (1934)1 EACA ................:...............................
133
Mukindia -vs- R (1966)EA 425 ................................................. 242 Mulakh -vs- R (1954)21 EACA 383 ........................................... 270 Mulaba Mugeni -vs- R (1964)EA 518 ........................................ 132 Mutemba s/o Rutehenda -vs- R (1953)20 EACA ...................... 271 Murimi -vs- R (1967)EA 542 ................................................... 280 Musa s/o Bakari -vs- R (1968) H.C.D (Tanzania) No. 239 .............
251
Musoke -vs- Uganda .................................................................. 34 Mutwalumbi Bukuli -vs- Busoga (1964)EA 713 ..........................
185
Muyimbo -vs- R (1969) EA 433 ............................................... 307 Mwasya -vs- R (1967) EA - 345 ...................................................
75
Mwangi -vs- R (1974) EA .......................................................... 90 Mwangi s/o Njoroge -vs- R (1954)21 EACA 377 ........................ Nathani -vs. R (1965)EA .................................................……….
16 85
Nathan Godfrey Odhiambo Obiro -vs- R (1962)EA 650 ............... Narrotthandas Vithlam -vs- R (1957) EA 343 ........................
294
109
Narothanda Vithlani -vs- R (1957)EA 343 ................................ 149 Nahashon Marenya -vs- R Cr. App. No. 786 of 1982. ..................
71
Ndirangu -vs- R (1959) EA 875 .................................................. 174 Ndirangu Juma-vs-R (1953)20 EACA 190 ................................. 255 Ngige s/o Gatonye -vs- R (1963) EA 663 .................................... Page 38 of 382
78
Nilsson -vs- R (1970)EA 599 ....................................................... 249,253 Nsubuga -vs- R (1968) EA ....................................................... 65 Ogalo s/o Owuora-vs-R( 1954)21 EACA ................................. 253 Oman -vs- R (1956)23 EACA 580 ..........................................
153
O'Neal -vs- State 35 Ga. App. 665 (1926) ................................ 215 Osman & Another -vs- R (1972)EA 429 .................................... 237 People Ex-parte Summons -vs- Snow 340 iu 469 (1688-93) I.N.P ..
46
People -vs- Tinder 19, Cal.539 .................................................. 44 Pita vs- R EACA Cr. App. No. 66 of 1972 (Unreported) ..............
92
Popat -vs- R (1950)17 EACA ..............................................
153
R -vs- Abdulla Mali (1920-29)3 ULR ..................................…..164,177 R -vs- Assa Singh (1937)4 EACA .................................................
164
R -vs- Barronet and Allain (1852) 17 Y.P ....................................
42
R-vs- Bazilio Sentamu (1936-51)6 ULR .................................... 159 R-vs- Badger (1843)7 ].P ........................................................
53
R-vs- Bennett and Newton, 9 Cr. App. R. .......................................
278
R -vs- Grays Justices, Ex parte Graham (1982) 3 All E.R 635 ........
9
R -vs- Rose (1885 - 99) All E.R 851 .............................................
41
R -vs- Phillips (1974) A.C 111 ......................................................
41
R -vs- Peter Kariuki (1976) .............................................................
43
R -vs- Muturi Kigano 1975 .......................................................... 44 R -vs- Vallet (1951)1 All E.R ..................................................... 44 R -vs- London Sessions Appeal Committee Ex-Parte Beautmont (1951)1 All E.R ........................................................ ......................
45
R -vs- Porter (1908-10) All E.R. ....................................................
54
R -vs- Gabhai jessa, High Court Bulletin No. 54/1963 at ..............
54
R -vs- Gajjan Singh & Others (1947)14 EACA 111 (P.42) ............
55
R -vs- Wood Green Crown Court, Ex-parte Jemima Home Reported in Criminal Law Review (1964) Vol.39 641 …….... 69 Page 39 of 382
R-vs- Nottingham Justices Ex-parte Davies (1980)2 All E.R775.....
58
R -vs- Dalip Singh (1943)1 EACA ............................................. 82 R -vs- Muir (1938)2 All E.R 516 ................................................. 83 R -vs- McBride (1961) 3 W.L.R 549 ............................................
84
R -vs- Scaramanga (1963)2 All E.R 582 ......................................
86
R -vs- Molley (1921)2 KB 364 ........................................................
87
R-vs-Devett 8, C&P 639 .................................................................
87
R -vs- Thompson (1914)2 KB .................................................... 87, 33 R -vs- Benfield 2, Burr.980, 983 ................................................ 88 R-vs- Fuller 1 B & P .....................................................................
88
R -vs- Boyle (1954)2 All ER 721 .................................................
91
R -vs- Guest (1964)3 All E.R 385 ............................................. 95,103 R -vs- Tucker 4 Burr. 2046 .......................................................... 95 R -vs- Phillips 2 Str. 921..........................................…………
95
R -vs Yates (1920)15 Cr. App. Rep .................................................
96
R -vs- Malakwen Arap Mutei (1949)23 KLR ............................... 111,158 R -vs- Garden (1879)5 QBI ....................................................... 128 R -vs- Gee (1939)2 KB 442 ....................................................... 136 R -vs- Ndolo (1926)10 KLR 11 ................................................. 123 R-vs- Jonah Orao Anguka, H.C.Crirninal Case No.41 of 1992 ........
135
R -vs- Mushraf Akhtar (1964) EA ................................................
137
R -vs- Main (1954)21 EACA .........................................................
137
R -vs- Akatendasama (1956)23 EACA 487 ................................ 137 R -vs- Home Secretary ex parte Soblen (1963)2 QB ........................
283
R -vs- Gusambizi Wasonga (1948)15 EACA ................................
163
R -vs- Tomasi Mufumu (1959)EA 625 ....................................... 148 R -vs- Chacha (1953)20 EACA 339 ...............................................
176
R -vs- Yonasani Egalu (1942) EACA .....:....................................... 140 143 R -vs- Waithaka (1963)EA ...............................................................140 Page 40 of 382
R -vs- Mungu Atosha (1938)5 EACA .............................................
130
R -vs- Deputy Chairman of Inner London Quarter Sessions (1970)2 WLR ............................................................... ............. 142 R -vs- Obau 15 KLR 107 ............................................................ 149,164 R -vs- Leiawan Leseroi (1964) EA III, Supreme Court of Kenya ....
144
R-vs-Daudji (1948)15 EACA ........................................................
143
R -vs- Salim Bin Karama (1951)18 EACA .....................................
143
R -vs- Loizeau (1956)23 EACA 566 .......................................... 143 R -vs- Livingstone Anyanga, Crim. Appeal No. 125 of 1989 ........
147
R -vs- Grimsby Recorder (1951)2 All ER 889 ................................
148
R -vs- W. Y. Wilken (1965)EA ........................................................
176
R -vs- Anyelwisye Undule (1965) EA 451 ......................................
193
R -vs- Beynon (1957)2 WLR 956 ....................................................
193
R -vs- Roberts (1954) Crim. L. R. .................................................
194
R-vs-Mwita (1948)15 EACA ........................................................
132
R -vs- Ndambere (1947)14 EACA .................................................
133
R -vs- Mutwiwa (1935)2 EACA .....................................................
183
R -vs- Podola (1959)3 All E.R 418 .................................................
194
R -vs- Juston (1945)6 Cos 385 .......................................................
195
R-vs- Pritchard (1836)7 C & P ......................................................
195
R -vs- Barnett (1956) Cr. Law Rev. 560 .........................................
195
R -vs- Bastian (1958)1 WLR 413 .................................................. 197498 R -vs- Bishom s/o Mwango 2 TLR, ...............................................
232
R -vs- Price (1962)3 WLR 1308 ....................................................
{97
R -vs- Oliver Smith (1910) Cr. App. Rep. .....................................
197
R -vs- Casey (1947)32 Cr. App. Rep. ............................................
197
R -vs- Cain 25 Cr. App. Rep.2, .....................................................
152
R -vs- Noormohamed Kanji (1937)4 EACA ............................ 12 R -vs- Jack Jezelani (1947)14 EACA .......................................... ^Q Page 41 of 382
R -vs- Wachira (1975)EA ......................................................... 267 R -vs- Kidasa (1973)EA 368 ..................................................... 268 R -vs- Mallo (1958) EA II .......................................................... 268 R -vs-Kemp (1957)1 399 ..................................................................
193
R -vs- Nott (1959) Crim. L.R 365 .....................................................
199
R -vs- Dickie (1984)3 All E.R ................................................
204
R -vs- Magata s/o K-achehakana (1957)EA 330 ..............................
205
R -vs- Smith 8 Cr. App. Rep. ..................................................... 200 R -vs- Dixon (1961)3 All E.R 460 ............................................. 200 R -vs- Duke (1961)3 All E.R 737 .................................................
200
R -vs- Indo Parsad Dave (1963)EA .............................................. 296 297 R -vs- Tuttle (1929)A11 E.R .................................................... 297 R -vs- Ajit Singh s/o Vir Singh (1957)EA 822 ................................
299
R -vs- Telenga (1967)EA 407 ..................................................... 98,295 R -vs- Morris (1961)2 WLR 986 ..................................................
R -vs- Mandi s/o Ngoda (1963) EA .................................................
202
R -vs- Malakwen Arap Mute (1949)22 KLR ..................................... m 153 R -vs- Sironga & Mindo (1918)7 KLR .............................................
291
R -vs- Orunyo (1970)EA ............................................................. 251 R -vs- Wamasuya s/o Bola (1944)11 EACA ................................
154
R -vs- Sherrif 20 cox Cr. C. 334 ................................................ 155 R-vs-Makali& 3 Others Crim. App. No. 4&- 5 of 1994 .......
750 757
R -vs- Pinckrey (1904)2 KB ....................................................... 284 R -vs- Gray (1900)2 QB ................................................................
261
R-vs- Zablon Ogalo Obonyo Cr. Case No. 24 of 1991 ..................
22
R-vs-Heifer (1951)1 KB ..................................................................
49
R-vs-Guest ex p. Anthony [11964]3 All ER 385 ..............................
103
R -vs- Lokidilio s/o Laitogon, Confirmation case No.344 of 1958 (1958)EA ......................................................................... 234 Page 42 of 382
R -vs- Saidi Kabila Kiunga (1963)EA I .......................................
191
R .vs Sowedi Mukasa (1946)13 EACA C.A ...................................
249
R -vs- Parks (1961)3 All E.R 633 ..................................................
274
R-vs-Nathani (1965)EA 777 ..........................................................
250
R -vs- Paulo Lwevola (1943)10 EACA ...............................
178,181
R -vs- Cosma (1955)22 EACA 450 ................................................
134
R -vs- Mathenge s/o Muriemo (1938)5 EACA ............................
150
R (Through J. K. Mbugua & 2 others) -vs- William R. Ole Ntimama. Private Prosecution case No. 13 of 1995 ......................
6
R (Through Afro Travels Ltd) -vs- A. K. Holdings, Trust Bank Holding, Ajay Shah Cr. Revision Case No. 56 of 1995 ..................
6
R-vs-Eric Kotut & 5 Others Private Prosecution case No. 1 of 1994 ...…6 R-vs-The Chairman of London Sessions Ex-parteDownes(1954)lQBI ... 96 R -vs- Abdaka Mali (1921) 3 ULR ................................................. R -vs- Odera (1973)EA 392 .....................................................
171
238
R-vs-Yowasi (1939)6 EACA .........................................................
170
R-vs-Wilkin (1964) unreported ..............:......................................
175
Raghbin Singh Lamba -vs- R (1958) EA 337 ...................................
47,4.9
Rajabu Jalum -vs- R (1965)EA 365 .................................................
181
Rarilal Shah -vs- R (1958) EA ..............................................
222,311
Raila Odinga -vs- George Saitoti & Others Misc. App. No. 31 of 1995 .6 Re Castings (1958)42 Cr. App. Rep. .............................................
217
Republic (Through James Orengo & 7 Others) vs Rashid Sajjad & 3 Others Misc. Appl. No. 37/1997 .............................. 42 Republic (Through James Orengo) vs Rashid Sajjad & 13 others. Misc. Appl. No. 41 of 1997 .......................................... 42 Richard Kimani & S. M. Maina -vs- Nathan Kihara - High Court Criminal (Revision) Case No.ll of 1983 .......................... 41 King -vs- Thomas 2, East P.C 934 ................................................. Page 43 of 382
37
Robert Ndecho & Ogonyo Luora-vs-R( 1951) 18 EACA ................
219
Robbert Martins-vs-R Criminal Case No. 1321 of 1975 .................
43
Ross -vs- R (195DA11 E.R 451 .....................................................
3Q6
S (An Infant) By Parsons (His next Friend) -vs- Recorder of Manchester (1970)2 WLR ..............................................…..
103,301
Sabur -vs- R (1958) EA ..........................................................72,104 Samwiri^vs- R (1953)20 EACA ................................................. 312 Saina •vs- R (1974) EA ............................................................... 91 Shah -vs- R (1976) C.A unreported ...............................................
47
Selemani s/o Ussi-vs- R (1963)EA 44 2 ...................................... 180 Semi Longa -vs- R (1964)ea 512 ...................................................
132
Semuyaga -vs- Uganda (1975)EA ......................................……… 296,302 Seidi -vs- R (1969) EA ................................................................ 82 Seifu s/o Bakari -vs- R (1960)EA 338 ...........................................
250
Sey -vs- King (1950)13 WACA .......................................................
13
Shiani -vs- R [1972]EA 557 ..........................................................
104
Shire -vs- R (1967)EA ................................................................ 280 Sirasi- vs- R (1936)3 EACA ..........................................................
275
Somo -vs- R (1972) 476 at 480 ......................................................
47
Sowedi Kauta-vs-R (1933)13 K.L.R ............................................
134
Stanley Munga Githunguri-vs-R Misc. Application No. 271 of 1985…10 Suleman Ahmed -vs- R (1922)9 EALR ...........................................
292
Surat Singh -vs- R (1946)13 EACA ............................................ 251 Tamano -vs- R (1969) EA ............................................................ TheRepublic,ThroughDevjiKanji-vs-DavendraValjiHalai(1978)KLR ……………………………………………………......... 45 Torroha Mohammed Torroha -vs- R Criminal Appeal No. NAI.5 of 1988 (Unrep) .....................................................
53
Uganda -vs- Keneri Opidi (1965)EA 614 ................................
73
Page 44 of 382
310 ........
Uganda -vs- Zubairi and Another (1973)EA 470 ..........................
77
Uganda -vs- Polasi (1970)EA 638 ..................................... 300,302 Valezi Kashiza -vs- R (1954)21 EACA 389 ................................... Wachira s/o Njenga -vs- R (1954)21 EACA 398 ................
133
220,221
Wafula s/o Waniamira -vs- R (1957)EA 498 ' ............................... Wafula -vs- R (1954)EA 498 ....................................................... Wandera Reuben Kubanisi -vs- R (1965) EA 572 ..........................
75
Wanjema -vs- R [19711 EA 493 ....................................................
14
Ward -vs- James (1965)1 All E.R 563 ............................................
159
Washington s/o Odingo -vs- R (1954) EACA 392 .......................
59
Washington s/o Odindo -vs- (1954) EACA 392 ............................ Washington s/o Odindo-vs-R (1954)21 EACA 392 ..................... Wenlock-vs-River Dee Co; 19 Q.B.D ....................................... 17 Wheatley -vs- Lodge (1971)1 All ER ............................................. Witherley -vs- Witherley (1608)2 Rolle's Abridg ...............
5
83 284
Yakobo -vs- R (1945)12 EACA .....................................................
775
Yokobo Uma and Another -vs- R (1963)EA 542 .......................... Yosefu Muwonge and Two Others -vs- Uganda Cr. App. No. 86 of 1965 (unreported) ...............................................................
779
Yowana Sebuzikira -vs- R (1965) EA 684 .....................................
133
Yozefu & Another-vs-R (1969) E.A ............................................
75
Yusuf Maumb -vs- R (1966)EA .....................................................
95
Zaver -vs- R (1952)19 EACA ..................................................... 779 Zaverchand Hemraj Shah -vs- R (1960) EA 562 .............................
Page 45 of 382
73
CHAPTER ONE
THE NATURE OF CRIMINAL PROSECUTIONS
A. INTRODUCTION
Criminal procedure is the process through which substantive penal laws are applied to achieve their general purpose. It is the means and mode of bringing to trial those suspected of criminal activities. The procedure of trying a suspect is an elaborate one and runs from the time of arrest, through interrogation and charge, to the time of taking the suspect to court for the plea, trial, judgment, sentence, appeal and revision of a case if necessary. Criminal proceedings are instituted in the name of the State as the complainant. Thus in any one criminal case the complaint will appear as Republic -vs- Wachira, Wachira being the name of the accused person. This means that in law every crime is against the State1 and, therefore, the state takes the responsibility to seek redress on behalf of the victim by punishing the offender. There has nevertheless been the argument among criminologists as to who actually is the complainant in criminal prosecutions: the State or the victim of the crime? The answer is that the State is as much a complainant in any one criminal prosecution as the victim of the crime. Being under the duty to protect the society, the State takes the responsibility to prosecute those who commit crimes. But there is almost always a background complainant in crimes involving private property and crimes against the person. Such complainants usually appear only as prosecution witnesses. In most cases they appear as the
1
See Rufus Riddlesbarger v. Brian John Robson (1959) E.A. 841. Page 46 of 382
victims of the crime. The State, on the other hand, is usually the complainant and the prosecutor. Since it is the state which through its legislative arm enacts laws, breach of such laws by any criminal activity is in direct conflict with the interests of the state. Thus, as the custodian of the legal and administrative order, the state becomes a complainant when her laws are breached.
B. THE ATTORNEY GENERAL'S CONSTITUTIONAL POSITION
The Constitutional basis of criminal prosecution is founded on section 26(3) of the constitution which provides:
"The Attorney-General shall have power in any case in which he considers it desirable so to do:-
(a)
to institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed by that person;
(b)
to take over and continue any such criminal proceedings that have been instituted or undertaken by himself or another person or authority and
(c)
to discontinue at any stage before judgment is delivered any criminal proceedings instituted or undertaken by himself or any other person or authority".
THE NATURE OF CRIMINAL PROSECUTIONS
Page 47 of 382
The foregoing provision underscores that under Kenyan law it is the State, through the Attorney-General, which is bestowed with the power of controlling criminal prosecutions. This was the position of the court of Appeal of Kenya in the case of Jopley Constantine Oyieng' -v- Republic2 wherein the court observed:-
"... in the instant case, the appellant was pursuing a right to file a private prosecution. Only the Attorney-General has the right under section 26 of the Constitution to institute criminal proceeding's. No similar right is extended to a private individual and it is obvious that section 88(1) of the Criminal Procedure Code does not override section 26 of the constitution...”3 The state is therefore the prosecutor in all criminal prosecutions4. That power of the state to control all criminal proceedings subsists whether the proceedings have been initiated by a complaint and the prosecution conducted by a private individual under the provisions of section 895 of the Criminal Procedure Code. The problem of who has the right to prosecute is even more pronounced in respect of appeals. On the one hand section 348(a) provides that;
"when an accused person has been acquitted on a trial held by a subordinate court, or where an order refusing to admit a complaint or formal, charge, or an order dismissing a charge, 2 3 4 5
Criminal Appeal No. 45 of 1988. Ibid Sec Riddlesbarger, Supra, note. The section allows a private individual to prosecute a crime subject to permission being granted by a magistrate with Jurisdiction, Page 48 of 382
has been made by a subordinate court, the Attorney-General may appeal to the High Court from the acquittal or order on a matter of law".
This provision seems to oust from the scope, of a private prosecutor conduct of criminal appeal, and to rest on the Attorney-General monopoly right of prosecuting criminal appeals a position which was upheld in Riddlesbarger v Robson6. On the other hand, the Court of Appeal in Republic Thro' Devji Kanji v Davendra Valji Halai7 held that a private prosecutor has a right of appeal against an acquittal. Faced with those two conflicting authorities, in the case of Charles Wainaina v H. K. Ndegwa 8the High Court decided that it was bound by the latter case being the most recent in point of time. On the whole, the cumulative effect of section 26 of the Constitution of Kenya and section 348(a) of the Criminal Procedure Code is that it is the Attorney-General who has the ultimate and undisputed control over all prosecutions. C. PRIVATE7 PROSECUTION
The State's constitutional and legal rights over criminal prosecutions are not exclusive. A private individual other than the Attorney-General may also institute criminal proceedings if he/she has reason and probable cause to believe that an offence has been committed. This right is recognised under section 26(3) (b) of the Constitution which also empowers the Attorney-General to take over and continue any such criminal proceedings that have been instituted or undertaken by another person or authority.
6 7 8
Supra, note 1. (1978) KLR 1978. Criminal Appeal No. 925 of 1979, High Court, Nairobi (unreported). Page 49 of 382
Section 89 of the Criminal Procedure Code confers the right to institute criminal proceedings on any person by means of complaint to a Magistrate, and section 88 confers the right to any person to conduct the prosecution subject to the permission of "any Magistrate trying the case". The right to private prosecution has been said to be "a useful constitutional safeguard against capricious, corrupt or biased failure or refusal of police forces and the office of Director of public prosecutions to prosecute offenders against the criminal law9". A private individual who wishes to institute a private prosecution must first make a complaint to the Magistrate after which the Magistrate may upon being satisfied grant permission for private prosecution. But there are conditions which a private prosecutor must fulfil before the Magistrate grants the permission. Such conditions were stated, by the High Court of Kenya in the case of Richard Kimani & M. Maina -vs- Nathan Kahara10 thus:"When an application is made under section 88 to conduct a prosecution, we think that the Magistrate should question the applicant to ascertain whether a report has been made to the Attorney-General or to the police and with what result. The Magistrate should also ask himself how is the complainant involved? What is his LOCUS STANDI? Has he personally suffered injury or damage or is he motivated by malice, or political considerations?". Thus in granting permission for a private prosecution, the discretion of the Magistrate must be exercised judicially, sparingly and only on extremely good grounds. This is to avoid misuse of the right to private prosecution for personal vendetta and vengeful intentions. The Court further emphasised the importance of private prosecution by stating:-
"...the right of Private Prosecution is essential to counteract
9 10
Gouriet V Union of post office workers (1978) AC 435 at 477. High Court Criminal (Revision) case No. 11 of 1983 Page 50 of 382
attempts by wealthy and influential people to stifle prosecutions when offences by them are alleged in reports to the police.11 But the question has arisen as to the validity of a private prosecution commenced and/or accomplished without prior permission of the Magistrate.12
Since there are certain conditions which the Magistrate must consider before granting or refusing permission for private prosecution, one would assume that without the Magistrate's permission any prosecution or purported prosecution by a private individual is a nullity. This issue was raised in the case of The Republic, through Devji Kanji -v- Davendra Valji Halai.13 In that case, the appellant brought a private prosecution in the Senior Resident Magistrate's Court, Nairobi, against the respondent. Both parties were represented by counsel and, at the close of the prosecution case, counsel for the respondent took the objection that the private prosecutor had not obtained permission from the court to prosecute the case, as required by section 88(1) of the Criminal Procedure Code. The Senior Resident Magistrate upheld the objection, and held the proceedings to be a nullity. He was upheld by the High Court (Sachdeva, J.) exercising revisionary jurisdiction which had been invoked. The appellant appealed against the High Court decision and it was held that where all persons concerned are aware that a private prosecution and the parties are represented by counsel, if no objection is raised to the absence of formal permission from
11 12
13
Ibid See decisions in the unreported cases of Raila Odinga v Prof. George Saitoti & Others. Misc. Application No. 31 of 1995; Kamlesh Mansukhlal Pattni v Republic. Criminal Appeal No. 88 of 1995; R (Through Joseph Kairu Mbugua & 2 others) v William Rongurwa Ole Ntimama, Private Prosecution Case No. 13 of 1995. R (Through Afro Travels Ltd) v A. K. Holdings Ltd, Trust Bank. Ltd, Ajay Shah , Criminal Revision Case No. 56 of 1995. . R v Eric Arap Kotut & 5 Others Private Prosecution No. 1 of 1994, Republic (through James Orengo & 7 others) v Rashid Sajjad & 4 others. Misc. Appl. No. 37 of 1997 (28/8/1997) Republic (through James Orengo) vs Rashid Sajjad & 13 others, Misc. Appl. No. 41 of 1997 (22/9/97) [1978] KLR 178 Page 51 of 382
the Magistrate to the institution of such proceedings in accordance with section 88 of the (Criminal Procedure Code) until after the close of the Prosecution case, such permission may properly be inferred from the fact that the trial has been allowed to proceed so far. The court in the same case substantially lifted the limitation of a private prosecutor in appeal cases by stating that a private prosecutor as a party to proceedings in revision in the High court is entitled in accordance with section 361(1) and (7) of the Criminal Procedure Code to appeal from that decision to the Court of Appeal, subject to the residuary control exercised by the Attorney-General over all criminal proceedings. The Court further observed:-
"Further, by section 361(1) of the Criminal Procedure Code any party to an appeal from a subordinate court may appeal against the decision of the High Court in its appellate jurisdiction to this court. A private prosecutor is such a party. Section 361(7) equates an order of the High Court made in its revisional jurisdiction with a decision made in its appellate jurisdiction. We are accordingly satisfied that a private prosecutor as a party to the proceedings in the High Court has a right to appeal to this court subject to the residuary control by the Attorney-General over every criminal case under the provisions of section 82 of the Criminal Procedure Code."
In addition, the Criminal Law Amendment Act of 2003 has made a provision in the Criminal Procedure Code for power of courts to order for costs against a private prosecutor under section 171 (1) Criminal Law Amendment.
Page 52 of 382
D.
LIMITATION OF TIME
Justice delayed is justice denied is a legal maxim but there is no legal prescription for the period constitutes "delay" in criminal cases nor is there any provision for redress of "denial" of justice due to delay, however, the constitution provides that such prosecution must commence within reasonable time. Section 77(1) of the Constitution of Kenya provides that;
"If a person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair bearing within a reasonable time by an independent and impartial court established by law". The question has always been: What period of time constitutes "reasonable" time? In general criminal prosecutors are never time barred except in special circumstances such as contemplated under section 219 of the Criminal Procedure Code which provides;-
"Except where a longer time is specifically allowed by law, no offence the maximum punishment for which does not exceed imprisonment for six months, or a fine of one thousand shillings, or both, shall be triable by a ‘surbodinate court’ unless the charge or complaint relating to it is laid within twelve months from the time when the matter of the charge or complaint arose".
The absence of time limit notwithstanding, criminal prosecution must be initiated promptly and without undue delay. This is because, any criminal prosecution is generally presumed to have the object of harmonizing the society and ridding it of activities perilous to social good. It would therefore defeat the Page 53 of 382
intention of good government, to bring in prosecution founded on a crime whose peril has waned due to the passage of time. In the words of Lord Shawcross, Britain’s Chief Prosecutor at the Nuremberg trial of Nazi war criminals, evidence given after a long lapse of time would be "unsafe after four weeks and hopeless after 40 years14". Such prosecution, may be construed to pursue not the establishment of peace and tranquility, but execution of personal, social or political vendetta and as the court observed in the case of R –v- Gray Justices ex parte Graham15:
"In our opinion, delay of itself, with nothing more, if sufficiently prolonged, could in some cases be such as to render criminal proceedings brought long after the events said to constitute the offence both vexatious and an abuse..."
There are, however, certain instances when institution of criminal proceedings against a suspect might be withheld for a long time while investigations are carried out. Morally, this is a better alternative to arresting a suspect and keeping him in remand under the pretext that investigations are still being carried out. But it offers no excuse for a prosecution to be brought against a person after a period of time when even some of the prosecution witnesses have died, and others can hardly remember what actually took place. Such action may prejudice an accused person to the extent that his constitutional rights under section 77 of the Constitution are abused. In the case of Stanley Munga Githunguri –vs- R16, the High Court of Kenya stated.:-
"There is no time limit to the prosecution of serious offences
14 15 16
See The Times, May 13, 1991, P53 (1982)3 All ER, at 653 Miscellaneous Application No. 2 of 1985, High Court, Nairobi, unreported. Page 54 of 382
except where a limitation is imposed by statute....In so far as the time limit is concerned the Attorney General is therefore free to prosecute provided he does not offend the fundamental rights conferred by section 77(1) as protected by section 84(1) of the Constitution".
The underlying principle in the above case is that the prosecution must be brought within a reasonable time. Although the issue of "reasonable" time is to be judged by the circumstances surrounding each particular case, courts will generally be reluctant to entertain delayed prosecutions in absence of proper explanation for the delay. The delay itself must be reasonable.
CONCLUSION
The following points are demonstrable from the foregoing that:-
(i)
The state through the Attorney-General, has an overall and residuary
control over all criminal prosecutions in Kenya. This has its basis both in the Constitution and the Criminal Procedure Code. It is however more pronounced in criminal appeals.
(ii)
In cases in which a public prosecutor (the Attorney-General) does not wish to commence criminal proceedings, a special provision is made under sections 88 and 89 of the Criminal Procedure Code to enable a private individual to institute criminal proceedings by a complaint made to the Magistrate. Before the Magistrate grants permission for private prosecution, he must be satisfied that prima facie the commission of an offence has been disclosed and the complaint is neither frivolous nor vexatious. Page 55 of 382
(iii)
The right to private prosecution is a constitutional safeguard against inertia or partiality on the part of authority and it is the best legal check against corruptible laxity on the part of the state to initiate criminal proceedings against suspected offenders.
(iv)
Although permission of the Magistrate is a statutory requirement before a
private prosecution is commenced, such prosecution is not rendered invalid for want of permission of the Magistrate. Provided that no objection is raised to the absence of formal permission from the Magistrate to the institution of such proceedings until after the close of the prosecution case, such permission may properly be inferred from the fact that the trial has been allowed to proceed this far.
(v)
The underlying principle of private prosecution is that the Private Prosecutor must have a locus standi such that his complaint is not one merely founded on political or other personal considerations.
Page 56 of 382
CHAPTER TWO
METHODS OF CONTROLLING PROSECUTIONS
A. INTRODUCTION
The power of controlling prosecutions is vested in the Attorney General under section 26(3) of the Constitution.1 The major methods of control are the instruments of nolle prosequi and withdrawal. The former entitles the Attorney General to take over and continue any criminal proceedings and the latter empowers him to withdraw proceedings at any stage before judgment is delivered.
B. NOLLE PROSEQUI
A Nolle Prosequi is a statement that the Republic intends to discontinue the proceedings and is entered by the Attorney-General. In the case of crispus njogu-vs-the attorney general2 a nolle prosequi was defined to mean :
A Nolle Prosequi is procedural device which has its origins in English Common Law. Under English Constitutional System the monarch is the constitutional head of the courts.
The powers to commence and terminate proceedings lies with the
1
2
See the Constitution of Kenya (1998) 1992. Text See also Chapter 1, Supra. The government has created the office of the Director of Public Prosecutions (DPP) but this has not removed the Attorney-General from his position as the overall in charge of prosecutions. It is arguable that the office of DPP as currently constituted is no more than an administrative office and should not be confused with the office of the DPP in a place like England where the DPP actually directs prosecutions High Court of Kenya, Criminal application No. 39 of 2000 Page 57 of 382
monarch. A nolle prosequi becomes merely a procedural device through which the monarch can exercise her prerogative powers to end criminal proceedings and because the monarch is the constitutional head of the courts, a nolle prosequi entered by the Attorney General personally as the monarch’s minister cannot be challenged in any English courts.
The Attorney-General may enter a nolle prosequi at any stage of the proceedings before verdict or judgment. No criminal proceedings are terminable after judgment, which means that the power of the state to discontinue proceedings by nolle prosequi is only exercisable in the court of first instance. In a murder case for instance, a nolle prosequi may be entered in the trial in the High Court. There are two modes of entering a nolle prosequi under the Criminal Procedure Code. First, the Attorney-General may state it in court or in he may inform the court in writing that a nolle prosequi has been entered3. Once a nolle prosequi is entered, it stays the proceedings in respect of which it was entered sine die and discharges the accused person(s). It is the most formidable power exercisable by the State in the realm of the Criminal Law. Neither the Constitution nor the Criminal Procedure Code attaches any preconditions to its exercise In practice the bulk of prosecutions are conducted by State Counsels and Police Prosecutors all of whom are subject to his (Attorney-General's) directions ,therefore, Under the Criminal Procedure Code, any State Counsel or Prosecutor may withdraw any criminal prosecution under his charge, but such withdrawal is subject to consent by the court4 ,However, 'Nolle Prosequi' is different from such withdrawal in that it is not subject to any form of control by the courts and is a power exclusively vested in and exercisable by the Attorney-
5 4
Section 82(1) of Criminal Procedure Code (Cap 75). Section 87 of Criminal Procedure Code (Cap 75). Page 58 of 382
General unless he delegates in writing pursuant to section 83 of the criminal procedure code to his senior surbordinates - Solicitor-General, The Deputy Public Prosecutor or a State Counsel. The import of this proviso is that the Attorney General should only delegate this power to those officers temporarily. When an accused is discharged following the entry of nolle prosequi such discharge is no bar to subsequent proceedings on account of the same facts. If the accused is not before the court when a nolle prosequi is entered, the Register or Clerk of the court in which the Nolle Prosequi has been entered must forward a notice to the head of the prison where the accused is held. A central feature of ‘Nolle Prosequi’ is that it overrides Judical control,generally,no reasons are in law required for its entry in any particular proceedings, and in practice no reason is seldom given.This matter has recently received judicial consideration in the case of Crispus Karanja Njogu –vs- AG5, where the question for determination by the High Court was whether the court is entitled to know the reasons why the Attorney-General or his agents seeks to enter a nolle prosequi. The Court held inter alia that the High Court pursuant to the provisions of Section 123 (8) of the Constitution is entitled to know the reasons why the Attorney-General or his agent seeks to enter a nolle prosequi. The Court stated as follows; “Thus, rightly contended, this court is the sole constitutional entity vested with the responsibilities rather than the Attorney General of ensuring that criminal justice system is not abused or used oppressively. This court does, for instance by inquiring whether the power of entering a nolle prosequi vested in the Attorney-General has been exercised in accordance with this constitution or any other law so that under our constitution the exercise of such powers of the Attorney-General
with respect to the
entering of a nolle prosequi can be questioned by the court… the power of the Attorney-General under Section 26(3) of the Constitution are subject to the
5
Supra note 2 Page 59 of 382
jurisdiction of the courts by virtue of Section 123 (8) of the Constitution. Where, therefore, the exercise of the discretion to enter nolle prosequi does not meet the test of constitutionality by virtue of Section 123 (8) of the Constitution then the nolle prosequi so entered will be deemed and declared unconstitutional.” The court held that pursuant to the provisions of section 123(8) of the constitution, the High Court is entitled to know the reasons why the Attorney General or his agent seeks to enter a Nolle Prosequi. In the subordinate courts however, the trial Magistrate is not entitled to question the discretion of the Attorney General to enter a Nolle Prosequi. The question is whether the Attorney General exercises this power as a Minister or as the Chief Prosecutor.
Although ‘nolle prosequi’ may be
characterized as a ministerial power supposedly subject to ultimate control by Parliament, the Attorney General, not being a Minister ‘sensu stricto’ does not share in the collective responsibility of Ministers to parliament; nor can he defend his acts as a Minister in Parliament.
Moreover, parliament cannot
criticize the Attorney General before he enters a ‘nolle prosequi’ since the proceedings are sub judice; nor can parliament actively question him after he has exercised the power since that would be Unconstitutional6 and contrary to the concept of separation of powers.7 Ultimately therefore, the question as to whether 'nolle prosequi' can possibly be used for objective purposes beneficial to the public interest may rest on the personal character and dynamism of the Attorney-General particularly in the absence of a delimitation of the areas in which it may be entered.
6
section 26 (8) See generally: Burin & Shell, 'Politics, Law and Social Change.' Selected essays of Otto Kircheimer, New York Columbia University Press, 1969. It is therefore arguable that Nolle Prosequi is a power 'sui generis' 7
Page 60 of 382
In Keynan Wehliye –vs- Republic8 It was held that there is a legally constituted office of the Director of Public Prosecutions. That the power to institute and undertake criminal proceedings and discontinue at any stage before judgement is bestowed upon the Attorney-General under Section 26 of the Constitution. This power is vested in the Attorney-General to the exclusion of any other person. The power to enter a nolle prosequi is given to the Attorney general under Section 82 of the Criminal Procedure Code under section 83 of the Criminal Procedure Code the Attorney General is empowerd to delegate his powers under that Act. The Officers to whom he may delegate are named thereof and absent in that list is the Director of Public Prsecutions . It therefore follows and we so find that the power to enter nolle prosequi Prosecutions.
is nto delegatable to the Director of Pubilc
That a nolle prosequi purporting to be signed by the
Director of Public Prosecutions. That a nolle prosequi purporting to be signed by the Director of Public Prosecutions is in our view invalid.
C. WITHDRAWAL Withdrawing from prosecution of trials before subordinate courts may be undertaken by a Public Prosecutor with the consent of the court or on the instructions of the Attorney-General at any stage of the trial but must be before judgment is pronounced9. Withdrawal takes two forms. First before the accused person has been called upon to make his defence in such a case, he is to be discharged but such discharge however is not a bar to any subsequent proceedings against
the accused on account of the same facts secondly
withdrawal may be made after the accused has already made his defence in
8
Criminal Case No. 223 of 2003 (Unreported) at the High Court of Kenya, Nairobi
9
Section 87 Criminal Procedure Code (Cap 75) Page 61 of 382
which case, he is to be acquitted10. In departure from the classical situations contemplated above, a number of cases have suffered withdrawal before being brought to court. Two cases illustrate the point .In the case of Clifford Derrick Otieno –vs- Lucy Kibaki11, Clifford a television cameraman filed a suit against the Lucy Kibaki (Kenya’s current First Lady) alleging assault and malicious damage to property at the Nation Media Group’s newsroom. However, even before the matter was entered into the court’s record, the
Director of Public Prosecutions(now deputy public
prosecutor) entered a nolle prosequi under the direction of the AttorneyGeneral. The Magistrate observed that “he feels that the ‘nolle prosequi’ goes against public expectations and tramples on the right of the vulnerable and hopeless in the society. Whichever way the court feels, it could complain about the circumstances of presentation but can not ever reject a ‘nolle prosequi’. That is the law and am bound by it.” ‘’ (ii)
Seanoi Parsimei ole Sisina and & Others –vs- Attorney-General12
Thomas Cholmondeley was charged with the murder of a Kenya Wildlife service warden at his Soysambu ranch but before the case could proceed to trial
the Attorney-General
withdrew
the murder charge citing
insufficient evidence to support and sustain the murder charge.
10
Ibid. No proceedings can be commenced against him on the same facts. Miscellaneous Application No. 5 of 2005 (unreported) at the Chief Magistrate’s Court in Nairobi. 12 Criminal Case No. 345 of 2005 at the High Court of Kenya in Nakuru. 11
Page 62 of 382
CHAPTER THREE ARREST
A. INTRODUCTION The Criminal Procedure Code1 does not define an arrest ,however, sections 21 and 24 of the Code shed some light on what an arrest is. Section 21 provides that in making an arrest the arresting person shall actually touch or confine the body of the person being arrested unless that person submits to custody either by word or by conduct2. Section 24 states that the arrested person must not to be subjected to more restraint than is necessary to prevent his escape. The effect of these two sections is to define an arrest as a restraint, whether by actual touching or merely by confining person on commission of a crime or on suspicion of a crime having been committed or in order to prevent the commission of threatened crime. In the event of resistance the person arresting may use all means necessary to effect arrest3, including reasonable use of force4, therefore, it is not necessary to handcuff or tie a suspect who has submitted to custody by word or conduct and intends to cause no trouble. Another requirement of a lawful arrest is that the person arrested should be informed of the reason for his arrest5, however, if the circumstances are such that the arrested person
1 2 3 4 5
Cap 75, Laws of Kenya Section 21(1), Criminal Procedure Code (Cap 75 Law of Kenya). Section 21(2), Criminal Procedure Code (Cap 75 Law of Kenya). Section 21(3), Criminal Procedure Code (Cap 75 Law of Kenya). Mwangi s/o Njoroge v R (1954) 21 EACA377: (F.Wheatley v Lodge (1971)1 All E.R 173 Page 63 of 382
ARREST
must know the nature of the offence for which he is detained, it is not necessary to inform him of the reason for his arrest6. The same applies where the suspect runs away or resorts to attacking his arresters7. The powers given to law enforcing agencies such as the police, are exclusively for lawful purposes and must be exercised reasonably. There are remedies in civil and criminal law to victims of unlawful arrest but this will depend on whether the arrest was with or without warrant .
B. ARREST WITHOUT WARRANT
(i) By A Police Officer Most arrests are effected by police officers as part of their duty of maintaining law and order8. The powers of the police in respect of arrests, prevention of crime and investigation of offences are governed by the provisions of the Criminal Procedure Code and other laws9. Under the Code10, a police officer may arrest without a warrant, any person he reasonably suspects of having committed a cognizable offence. He may also arrest without a warrant any person who commits a breach of the peace in his presence. Any person who obstructs a police officer while in the execution of his duty or who has escaped or attempts to escape from lawful custody may be arrested without a warrant. Further a police officer may arrest without a warrant any person possessing anything which may reasonably be suspected to be stolen property. He can also without a warrant arrest a person who is a deserter from the armed
6 7 8
9 10
Christie v Leachinsky C\9A7).C. 573, (1946) KB 124 Ibid See section 14, Police Act Cap.84 and section 8(a), Administration Police Act Cap.85. See Part III, Criminal Procedure Code (Cap 75). See Section 29, Criminal Procedure Code (Cap 75). Page 64 of 382
forces. He may also arrest any person he finds in a highway, yard or other place during the night and whom he reasonably suspects of having committed or being about to commit a felony. Likewise, he may arrest any person who has in his possession any implements for housebreaking. Further, he may arrest any released convict committing a breach of any provision by virtue of section 344 which relates to conditions imposed on such people while under police supervision. Finally, under section 29 of the Code, a police officer may arrest without a warrant any person for whom he has reasonable cause to believe a warrant of arrest has been issued. And according to section 30, vagabonds, persons who, by repute, are habitual robbers, thieves and those who are commonly associated with other crimes of dishonesty, may be arrested by a police officer without a warrant.
Section 32 provides that even if a person has committed a non-cognizable offence, a Police officer may arrest him without a warrant if upon demand he refuses to disclose his name and other particulars. If a person is arrested without a warrant he must be taken before a Magistrate, or officer in charge of a police station as soon as possible11. If the arrested person is brought before the officer in charge of a police station, the officer may inquire into the case and release the person on bond unless the offence is treason, murder, robbery with violence or attempted robbery with violence, or the offence is found to be of a serious nature12. If however, the officer is satisfied that there is not sufficient evidence against the prisoner, he may set him free altogether. Thus the power for absolute discharge is discretionary but officers in charge of police stations must report to the nearest Magistrate, the cases of all persons arrested, with or without a warrant in their
11 12
Section 33, Criminal Procedure Code (Cap 75 Laws of Kenya). Section 36, Criminal Procedure Code (Cap 75 Laws of Kenya). Page 65 of 382
areas13.
(ii) Arrest By Magistrate According to section 38 of the Criminal Procedure Code a Magistrate may personally arrest or cause to be arrested any person who commits an offence in his presence in the local limits of his jurisdiction. Thereafter he may release the offender on bail or commit him to custody14, Similarly, he may arrest or direct the arrest in his presence, within the local limits of his jurisdiction, of a person whose arrest he is competent at the time and circumstances to issue a warrant15. In effecting an arrest, the Magistrate acts as a judicial officer and not in. a ministerial capacity16. His actions are therefore protected by judicial immunity and he cannot, in law, be subjected to criminal or civil proceedings.
Section 42 of the Criminal Procedure Code imposes an obligation, on everyone to assist a police officer or Magistrate who, in execution of his duties, reasonably asks for such assistance. This means that an unreasonable request, for example, a request which may endanger the life of the person whose assistance is asked for, can be turned down with impunity.
(iii)
Arrest By A Private Person
Section 34 (1) of the Criminal Procedure Code empowers a private person to arrest any person who, in his view, commits a cognizable offence or whom he reasonably suspects of having committed a felony. This power, of course, must be exercised reasonably as the use of unreasonable force in order to effect an
13 14 15 16
Section 37, Criminal Procedure Code (Cap 75 Laws of Kenya) Section 38, Criminal Procedure Code (Cap 75 Laws of Kenya), Section 39, Criminal Procedure Code (Cap 75 Laws of Kenya). See Kionywaki v. R (1968) EA 195 (High Court of Tanzania). Page 66 of 382
arrest may lead to criminal and civil liability for assault and false imprisonment respectively17. The most obvious instance where this power is readily exercised is where the owner of property or his servants arrest a person found committing a crime against such property. Usually, a person would, with due regard to his own safety, set upon the criminal and arrest him.
(C) ARREST WITH WARRANT In some cases it becomes necessary to secure the appearance in court of an accused person by issuing a warrant for his arrest. This occurs when criminal proceedings are commenced by a police officer or a public prosecutor first laying a charge in court or by private complaint18. The court may then issue a warrant for the arrest of the person against whom the charge has been preferred. Similarly, a warrant of arrest will almost certainly be issued by the court for witnesses who have been bonded but fail to turn up to give evidence, and for accused persons who have jumped bail or absconded.
Section 102 of the Code requires that a warrant of arrest be in writing, signed by the Magistrate and bearing the seal of the court. The warrant must state briefly the charge against the suspect and describe his details. It shall also order the person or persons to whom it is directed to apprehend the person against whom it is issued and bring him before the court issuing the warrant, or before some other court having jurisdiction in the case. Once issued, the warrant remains in force until it is executed or cancelled by the court which issued it.
Any person or police officer to whom a warrant is issued is bound to execute it. In so doing he, like the court which issues the warrant, is protected by judicial
17 18
Section 250 of the Penal Code (Cap 63.). Also see the law of Torts generally M'lmbui v Dyer (1967) E.A. 315 (High Court of Kenya). Page 67 of 382
immunity19. Under section 105 of the Code, a warrant may be directed to a landholder, farmer or manager of land. The warrant is Issued by a Magistrate empowered to hold a subordinate court of the first class within his jurisdiction. It directs such persons to arrest an escaped convict or a person accused of a cognizable offence who is hiding on his property. A person arrested in this manner must be handed over to the nearest police officer who shall cause him to be taken before a Magistrate with the requisite jurisdiction. A warrant is invariably directed to a police officer whose name is endorsed on the warrant by the officer to whom it is directed or endorsed20. The person executing the warrant must inform the person arrested of its substance and show him the warrant if asked to do so. Upon being arrested the accused must be produced before the court requiring his attendance without delay21. A warrant of arrest may be executed in any place in Kenya 22. However, if a warrant is executed outside the local limits of the jurisdiction of the issuing Magistrate, the person arrested must first be brought before the court in whose jurisdiction he was arrested unless the court issuing the warrant is only 20 miles from the place of arrest or is nearer than the court within whose local limits of jurisdiction arrest was made23. The Magistrate before whom the arrested person is brought will cause his removal in custody to the court which authorized his arrest if he is satisfied of the person arrested. The Magistrate may release such a person on bail unless he is arrested for murder, treason, robbery with violence or attempted robbery with violence.
19 20 21 22 23
(1956) EACA 480 from 482 Section 106, Criminal Procedure Code (Cap 75). Section 108, Criminal Procedure Code (Cap 75 Laws of Kenya). Section 109, Criminal Procedure Code (Cap 75 Laws of Kenya). Section 112, Criminal Procedure Code (Cap 75 Laws of Kenya). Page 68 of 382
(D) OTHERS
Besides the police, ordinary courts and private persons, other tribunals which exercise quasi-judicial powers such as the Rent Restriction Tribunal and Judicial Commissions of Inquiry have powers to issue warrants of arrest24. Likewise, every officer of the National Assembly is vested with police powers under the National Assembly (Powers and Privileges) Act25. In exercising this power, the speaker or any officer of the National Assembly is not subject to the jurisdiction of any court26.
(E) CONCLUSION Ideally, the Police Force as a State institution, is required to ensure public order and tranquility. In exercising the powers of arrest, police officers must therefore comply with the prescription of Kenyan law.
24
25
26
See Republic v Zablon Ogalo Obonyo, Criminal Case No. 24 of 1991, Principal Magistrates Court, Kisumu Section 30, National Assembly (Powers and Privileges) Act, Chapter 179 of the Laws of Kenya. Ibid section 29. See also Attorney-General v. Times Newspapers Ltd. (1973)1 All ER 815. Page 69 of 382
CHAPTER FOUR
SEARCHES AND SEARCH WARRANTS
A. INTRODUCTION A search warrant is an authority to search a place for evidence of a crime which is suspected or believed to have been committed or to make an arrest of a suspected criminal. A search warrant authorises the person to whom it is addressed to enter by force if necessary, the place or premises described therein for that thing and if the thing be found to seize it and take it before a court having jurisdiction to be dealt with according to the law1. If a police officer has reasonable suspicion that there is evidence in any place or premise which he considers necessary for the investigation of a case, he may apply to the court to issue a search warrant authorising him to search the place or premises. Evidence of reasonable grounds is necessary and must be given on oath. A search warrant maybe issued on any day including Sunday between the hours of sunrise and sunset although the court may by warrant authorize the police officer or other person, to whom it is addressed to execute it at any hour2.
B. SEARCHES WITH A SEARCH WARRANT Section 120 Criminal Procedure Code imposes an obligation upon a person in charge of a closed place to allow ingress and egress to a police officer wishing to execute a search warrant, failure to which entitles the police officer to use force3.
1 2 3
Section 118 of Criminal Procedure Code (Cap 75 Laws of Kenya). Section 119, Criminal Procedure Code (Cap 75 Laws of Kenya). Section 22 and 23 Criminal Procedure Code (Cap 75 Laws of Kenya) Page 70 of 382
The direction in the search warrant must be strictly observed.
The
articles which are not mentioned in the warrant should not be seized unless such unnamed articles are likely to provide additional evidence as to the identity of such articles or which at least have some relevance in the charge against the accused person. A warrant shall be under the hand of the Judge or Magistrate issuing it and shall bear the seal of the court.4 It shall state the offence with which the person against whom it is issued is charged. A search warrant may be directed to one or more police officers of the area within which the court has jurisdiction or generally to all police officers of the area5. If it is directed to more than one person it may be executed by all or by any one of them. A search warrant directed to a police officer may be executed by another police officer whose name is endorsed upon the warrant by the officer to whom it is directed or endorsed6. It may be executed at any place in Kenya7. When a search warrant directed to a police officer is to be executed outside the local limits of the jurisdiction of the court issuing it, he shall take it for endorsement to a Magistrate within local limits of whose jurisdiction it is to be executed. The Magistrate to whom a search warrant is so forwarded shall endorse his name thereon and the endorsement shall be sufficient authority to the police officer to whom the warrant is directed to execute it within the local limits and the local police officers shall if so required assist that officer in executing the warrant8. If there is reason to believe that delay will be occasioned by obtaining
4 5 6 7 8
Section 102, Criminal Procedure Code (Cap 75 Laws o'f Kenya). Section 104, Criminal Procedure Code (Cap 75 Laws of Kenya). Section 106, Criminal Procedure Code (Cap 75 Laws of Kenya). Section 109, Criminal Procedure Code (Cap 75 Laws of Kenya). (1957)EA355. Page 71 of 382
endorsement, it will be executed without endorsement in any place outside the local limits of the jurisdiction of the court which issued it. The seizure of irrelevant articles is legally unjustified and may damage the prosecution case. In order to prove to the court that the articles seized were from the accused, it is necessary to prove the contents of the warrant. In Mohanlal Trivedi -v- R9 the appellant was convicted by the district court of Busoga of being in possession of property reasonably suspected of having been stolen and failing to give a satisfactory account of his possession. The police acting on information received, searched the house and shop of the appellant for a camera. They did not find the camera but found an exposure meter which was the subject matter of this charge. At the appeal, it was contended that the conviction ought not to stand as no search warrant was produced and there was no evidence to show that the appellant's house and shop were the buildings named in the warrant. The officer who conducted the search gave evidence to the effect that he obtained a search warrant and searched the premises of the appellant named therein. It was held that it was impossible to establish that the search was conducted under the authority of a warrant without proving the contents of a warrant and evidence that the house searched was the one named, in the warrant cannot be proved, by secondary evidence in section 63 (equivalent to section 68 K.E.A) of the Evidence Act. Thus for the prosecution to succeed, it is imperative to prove the contents of the search warrant by actually producing it in evidence. This decision is germane as it is in pari materia.
C. SEARCHES WITHOUT A SEARCH WARRANT Section 22 of the Criminal Procedure Code authorises a police officer to
9
Section 111, Criminal Procedure Code (Cap 75 Laws of Kenya). Page 72 of 382
search a place entered into by a person sought to be arrested without a search warrant if obtaining the warrant would afford the person sought to be arrested an opportunity to escape. Section 26 gives a police officer or other person authorised in writing in that behalf by the Commissioner of Police power to detain and search aircrafts, vessels, vehicles and persons if he has reason to suspect that it contains stolen property or property unlawfully obtained. He can also seize any property found on a person after search. However, the application of this section is called into question when a police officer after stopping and searching, proceeds to charge the person searched with an offence under section 323 of the Penal Code. On a charge such as this, the prosecution must satisfy the court that there was reasonable suspicion before the vehicle, person, e.t.c. was stopped and searched; suspicion must precede stopping. Suspicion arising after stopping will render the action of the police illegal under section 26 Criminal Procedure Code. There need not be a precise suspicion about anything stolen, it is enough if in the circumstances there is reason for such suspicion. In Kityo -vs- Uganda10 the appellant was charged with being in possession of parts of motor vehicle suspected of having been stolen. On stopping the vehicle the police officer told the appellant that he was suspicious about the way he (the appellant) had been moving around Kampala and wanted to check his car. His morris minor was searched and motor vehicle parts suspected of having been stolen were found fitted on his vehicle. Prior to the stopping all the police stations in Kampala had been alerted to watch the movements of this particular car. It was noted that at every place frequented by the appellants car, there was always theft of Morris Minor cars or their parts. Eventually the appellant was
10
(1967) EA 23. Page 73 of 382
charged and convicted. On appeal it was argued on his behalf that he was not stopped and searched on any particular suspicion and that if there was any suspicion at all it was not a reasonable one. It was further argued that the prosecution had not proved that the motor vehicle parts found in the appellant's car were the subject of suspicion. Dismissing the appeal Sir Udo Udoma CJ said that it is not necessary that at the time of the stopping and searching the police officer must have in mind a precise suspicion about anything stolen or unlawfully obtained provided the circumstances are such that there is reason for suspicion. It is a traditional approach of the courts that a person charged with an offence under some sections, a plea of guilty cannot be accepted under any circumstances. The procedure has been that after reading and explaining the charge to the accused, the evidence on which the prosecution relies on ought to be heard and then the explanation of the accused if any. If he/she cannot give an account to the satisfaction of the court as to how he/she came to be in possession of the goods reasonably suspected to be stolen, then he/she can be convicted of the offence. According to Saeid, CJ this rigid approach does not take into account accused persons who through admitting suspicious possession as alleged in the charge, stubbornly refuse to offer any explanation whatsoever. In Koech -v- Republic11 the said judge said: “I have set out this portion of the judgement exclusively to emphasise that procedure suggested in no way offends against what has consistently been held by this court, yet it provides the flexibility which is in my opinion, so obviously desirable. It is not altogether uncommon for a situation to arise where a person accused of an offence under this section admits everything and stubbornly insists on offering no explanation whatever for his possession of the suspected goods.
11
(1968) E.A 109. Page 74 of 382
“I see no useful purpose being served in such a case of strictly adhering to the long line of previous authorities which not only frown upon acceptance of a plea of guilty but are clearly totally against it. If the procedure set out in Koech with which I respectfully agree is followed and practised scrupulously, I see no compelling or valid reason accepting a plea of guilty to an offence under section 299 (equivalent to section 323) of the Penal Code. It will be noticed, that sufficient safeguard exists in this procedure for protection of an accused person who does not understand the nature of the charge but where no such difficulty arises and, the accused, of his own volition and free will admits each and every assertion and also declines to offer any explanation when asked for, I think that in such circumstances a plea of guilty may rightly and properly be entered”.
D. CONCLUSION The principle underlying instances of search is to consider on the one hand the freedom of the individual; his privacy and his possessions are not to be invaded except for the most compelling reasons. On the other hand, the interest of society at large in finding out wrongdoers and repressing crime. Honest citizens should help the police and not hinder them in their efforts to track down criminals. In order to achieve this societal interest, the following requisites must be satisfied:
1 . The police officers must have reasonable grounds for believing that it is a serious offence. 2.
The police officers must have reasonable ground for believing that the
article in question is either the fruit of the crime (as in the case of stolen goods) or is the instrument by which the crime was committed, or is to be committed or is material evidence to prove the commission of the crime. 3.
The police officers must have reasonable grounds to believe that the Page 75 of 382
person in possession of it has himself committed the crime or is implicated in it or is accessory to it or at any rate his refusal must be quite unreasonable. 4. The police must not keep the article nor prevent its removal, for any longer than is reasonably necessary to complete their investigation or preserve it for evidence. 5. The lawfulness of the conduct of the police must be judged at the time and not by what happens afterwards.
Everyman is presumed to be innocent until he is found guilty. If his house is to be searched and his property seized on suspicion of an offence, it must be done by due process of law. And due process demands that there must be a valid warrant and the seizure is limited to those things authorised by the warrant. In the recent case of Royal Media -vs- Telkom Kenya12 The Court held that there would be no justification whatsoever where in carrying out a search, the defendant takes away more than is necessary in the circumstances. There was no evidence whatsoever in this case that the persons who executed the search warrants acted with excessive force or that they took away more than was necessary for the purpose.
12.[2001]1 EA 210 Page 76 of 382
CHAPTER FIVE BAIL A.
INTRODUCTION Unless it falls within the specified legal exceptions, interference with the
liberty of an individual is unconstitutional. The law guards against such interferences and in order for it to carry out its role of a guardian more effectively, the law is aided by criminal procedures. Among these procedures is bail, whose object is to shield the individual from pre-trial incarceration. Thus a person who is arrested for violating any of the state-laws should except in very few cases be entitled to pre-trial release. Bail has its roots in the legal system of Anglo-Saxon times. It probably arose out of medieval sheriffs' desire to avoid costly and troublesome burden of personal responsibility for those in their charge. Sheriffs commonly released a prisoner either on his own recognizance, with or without requiring some form of bond or on the promise of a third party, to assume personal responsibility for the appearance of the accused at trial1. The sheriffs were heavily fined for the escape of a prisoner. In the Norman times, there was a difference between bail and what was then called a mainprise. The latter involved surety in a less stringent degree of responsibility in that he was liable. Further, a person admitted to a mainprise was not considered to be in custody and the sureties could not discharge their responsibilities by seizing the principal and returning him to custody. With time, the distinction between bail and mainprise became blurred. The sheriffs had wide discretionary powers and it was recognized that there ought to be guidelines for the exercise of these powers. "The sheriff should exercise his discretionary powers having regard to the importance of the charge, the character of the person and the gravity of the evidence against
1
Yale Law Journal Vol. 70 at 966 Page 77 of 382
him.”2 These factors still hold supreme to date.
In 1275, a first enactment was undertaken in the Westminster statute with the aim of reducing abuse by the sheriffs of their wide powers to refuse bail. The enactment systematized and codified the ad hoc arrangements between the sheriffs and the principal (the accused) with the hope of standardizing the practice of bail.3
The above surety system was capable of abuses. First, those who offered themselves as sureties were either insufficient or secondly they took upon themselves the names of other persons ability. No wonder an Act of James 1 provided for the punishment of false and insufficient sureties.
B.
BAIL IN KENYA In Kenya, the law relating to bail is founded on the Constitution and the
Criminal Procedure Code. Bail may be defined as an agreement between the accused (and his sureties as the case may be) and the court and that the accused will pay a certain sum of money fixed by the court should he fail to attend his trial.4 The law on bail in its skeleton form is laid down in the Constitution. This is in respect to the constitutional right to individual liberty5, section 72 of Constitution. No right has been known to be absolute and the right to personal liberty has been qualified.6 A person may be arrested and his liberty curtailed by a police officer if he has reasonable suspicion that the person is about to
2 3 4
5 6
Redcliffe - The English Legal System and Bail Procedures in magistrate's courts supra note no. 1 at 966. Douglas Brown, Criminal procedures in Uganda and Kenya, 1970, (Sweet and Maxwell, London) (2nd Ed). Section 72 of the Constitution (1998) 1992 Text Ibid, Section 72 (1)(d). Page 78 of 382
commit a felony or has committed it. 'The interpretation of reasonable suspicion' as given in M’Ibui –vs- Dyer7 seems to suggest that even if the suspicion is incorrect, it matters not so long as it was reasonable in the circumstances. The effect of para (e) of section 72 Constitution is to give wide discretionary powers to the arresting officers, the consequences of which are that the individual's liberty is greatly compromised as he may be restrained in custody while sufficient evidence is being sought against him. This provision is susceptible to abuse and section 72(3)(b)8 of the Constitution is intended to remedy any such abuses. The case of pre-trial liberty is dealt with in section 72(5) which states that: Unless one is charged with a capital offence:-
"If a person arrested ... is not tried within a reasonable time, then, without prejudice to any further proceedings that may be brought against him, he shall be released either unconditionally upon reasonable conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial".
This subsection implies that the right to bail is conditional upon several factors, as read together with the provisions of the Criminal Procedure Code (Cap 75).
1.
It should be granted if the trial does not occur within a reasonable time. If this is true, then it would seem that many of the releases granted on bail are unconstitutional because they are granted on the first day of appearance. While interpreting a similar Ugandan provision, Kiwanuka C.J (Ag) in Musoke –vs- Uganda noted in the East African Court of
7 8
(1967)EA315. The arrested person be brought to court as soon as is reasonably practicable. Page 79 of 382
Appeal that:
"The might of the provision is centred on the phrase within a reasonable time, and the provision was meant to apply to a case like the present one where the hearing had been previously fixed twice and then just because the charge is amended and amended in the manner provided...,, the file is shelved for several months. In those circumstances, the accused was entitled to bail. There was excessive delay in bringing him to trial".
2. If it will not be prejudicial to the proceedings. If it is shown that he is likely to abscond, bail may be denied. Prejudicing the proceeding's may also assume the form of interfering with witnesses.
3.
By virtue of section 123(1) of the Criminal Procedure Code, a person will not be granted bail if he is charged with either the offence of murder, treason, robbery with violence, or attempted robbery with violence.
The right to bail may be invoked at any stage of the proceedings, as provided by the Criminal Procedure Code at section 123(1). The question of bail involves, a delicate balance between two competing values: the welfare of the society sought to be protected and fairness to the accused. It has been argued that in capital offences, owing to the mandatory death penalty upon conviction a person is especially tempted to abscond, tamper with witnesses or even unleash more harm to the society9. Therefore, there is need to
9
See Muli J. argument in 'Kenya Times', Nov 18th, 1987. Page 80 of 382
give such offences a strict treatment10. Before the 1987 amendment11, the Constitution provided that any person could be admitted to bail whether conditionally or unconditionally so long as his subsequent attendance was assured. The first amendment affecting subsection (3) came in 1978. The section which allowed the High Court to grant bail in any case if circumstances deemed it necessary was amended to read:
"The high court may in any case save where a person is accused of murder or treason, direct; that a person be admitted to bail or the bail required by a subordinate court or police officer be reduced12.
This greatly eroded the discretion of the High Court because under both subsections (1) and (3) of section 123 if a person was charged with murder or treason, he could not be granted bail under whatever circumstances. The subsection as amended created a contradiction. It meant that whereas under subsection (1) four offences murder, treason, robbery with violence and attempted robbery with violence were non-bailable, under subsection (3) only two, murder and treason were non-bailable. It was therefore quite possible for a person charged with robbery with violence or attempted robbery with violence to be denied bail under sub-section (1) but get it under sub-section (3) because in subsection (3) allowed bail in any case save murder and treason. The lacuna, created in the 1978 amendment was filled in 1984 and sub-section (3) was amended to make it tally with sub-section (1). By Act No. 19 of 1984, robbery with violence and attempted robbery with violence were made non-bailable.
10 11 12
Constitution of Kenya (Amendment) Act of 1987. Constitution of Kenya (Amendment) Act No. 20 of 1987. Statute Law (Miscellaneous Amendments) Act No. 13 of 1978. Page 81 of 382
The effect of this quick development was to make the four offences nonbailable under both sub-sections. This status was temporary. In the following year (1985) a Constitutional court in the case of Margaret Magiri Ngui v R13 declared section 123 of the Criminal Procedure Code inconsistent with the constitution and therefore null and void by virtue of section 3 of the Constitution. In the case Margaret Magiri Ngui was together with others charged with robbery with violence, which was not a bailable offence in terms of section 123 of Criminal Procedure Code. While in custody, she suffered severe ulcers and high blood pressure. She applied for bail, which was refused. An application was made to the High Court under section 84(1) of the Constitution challenging the constitutionality of section 123 of Criminal Procedure Code. It was argued on her behalf that in denying bail to persons accused/charged with capital offences, the section was inconsistent with section 72(5) of the constitution which allowed bail to persons charged with all offences. It was further contended by the applicant that the classification of offences into bailable and non-bailable was a feature alien to the constitution. The constitutional court agreed with this argument and held section 123 to be inconsistent with the constitution and declared it to be null and void. The court then proceeded to consider the application on merit having first found it had power to grant or refuse bail. It held that bail, as a general rule, should not be granted where the offence charged carries a mandatory death penalty because the temptation to abscond in such cases is very high. The court thus refused to release the applicant on bail. In order to give effect to the ruling of the constitutional court, Act No. 19 of 1985 repealed the words: "Save where a person is accused of murder, treason, robbery with violence or attempted robbery with violence" in subsection (3) and substituted the words with "in any case whether or not
13
Criminal Appeal No.59 of 1985. High Court of Kenya, Nairobi, unreported. Page 82 of 382
an accused has been committed for trial". This erased the classification of offences into bailable and non-bailable. Section 123 (3) Criminal Procedure Code was amended by deleting sub section (3) Act. No. 5/03 to read as below: Section 123(3) The High Court may in any case direct that an accused person be admitted to bail or that bail required by a subordinate court or police officer be reduced.
C. CONSTITUTION OF KENYA (AMENDMENT) ACT NO. 20 OF 1987
By this Act, section 72(5) of the Constitution was amended by repealing:-
"... he shall be released either unconditionally or upon reasonable conditions,..." and replacing it with"... he shall, UNLESS he is charged with an offence punishable by death, be released either unconditionally or upon reasonable conditions".
This amendment had far reaching implications. It not only re-introduced the pre-1985 reality of bailable and non-bailable offences but greatly worked to defeat the original jurisdiction (unlimited) of the High Court given to it under section 60(1) of the Constitution. It therefore meant that the criterion for granting or refusing to grant bail is not the merits of each particular case but the punishment to be meted out to the accused upon conviction. In moving this Bill, the Attorney-General advanced several arguments which have since been found wanting. The Attorney-General argued that if the Bill was not approved, courts would readily grant bail in capital offences which would prejudice the administration of justice owing to their grave implications. However, this argument holds no water as courts are still very cautious when Page 83 of 382
granting bail to non-capital offenders. In fact, in the Margaret Magiri14, case, the court observed inter-alia that;
"... bail, as a general rule should not be granted where the offence charged carries a mandatory death penalty, as great is the temptation to jump bail in such cases,". Further, in the case of Eliud Mwaura -v- R15 the applicant was denied bail although he had been incarcerated for more than eleven months before his trial. This shows how seriously courts treat the issue of bail to a capital offender and it was therefore not a viable argument that courts do readily grant bail to such offenders as to warrant its discretion to look at each case on its own merits to be taken away.
D. THE ABOLITION OF THE DISCRETION OF THE HIGH COURT
The abolition of discretion of the High Court in granting or refusing to grant bail in capital offences has been highly criticized. In England, Michael Zander, a renowned English scholar has argued that it has prejudicial consequences for the person, he observes;
"... the mere fact of being imprisoned may have an effect on one's prospect in the criminal justice system16".
The accused lacks free and unrestricted constant consultation with his
14 15 16
Ibid. Eliud Mwaura -vs- Republic, Criminal Application No. 446 of 1986. Michael Zander, Cases and materials on English legal System," London, Weidenfield & Nicholas, 1988 (5th Ed), at 239. Page 84 of 382
counsel. His ability to gather evidence and consult with his witnesses is made a myth'. A second criticism is that it is unfair to an accused who is ultimately acquitted. A person may be charged with murder but after trial it emerges that it was a clear case of manslaughter which is a bailable offence, and the accused having been remanded for a long period can legitimately claim to have been unfairly treated. It is also unfair because the Kenyan legal system makes no provision for compensation in cases of unfair remand of an accused person nor is the court enjoined to take the remand period into cognizance while meting out sentence. A third criticism of the strict 'non bail' characters of capital offences is that it is an unnecessary burden on the prisons since the accused becomes a permanent inmate for as long as the case has not been finally determined. This increases prison expenditure by caring for inmates who are not contributing to the prison's income17. To this drawback on the financial standing of the prison, overcrowding is added. It is equally posited that capital offence trials take long to be determined and pre-trial bail ensured that in deserving cases, the accused persons do not suffer unduly through no fault of theirs18. The denial of bail also negates presumption of innocence. An accused person is deemed innocent until he is proved otherwise or he pleads guilty19. However, after the 1987 amendment, the accused is in theory treated as innocent but in practice he is treated as a convict and put in remand all along. Furthermore, the consequences of the amendment have been termed as inhuman. This is so because it totally ignores the individual circumstances of a case and merely focuses on the punishment to be meted upon conviction. Yet as
17 18 19
Michael Zander, "Bail, A re-Appraisal", (1965) C.L.R,25. See Nairobi Law Monthly, No. 31 March 1991, at 35. See Constitution section 77(1 )(b). Page 85 of 382
Bosire, J said in Eliud Mwaura -v- R, “In certain cases, there may well exist exceptional or special circumstances personal to the applicant which when weighed against the risk of the applicant absconding if released on bail, the balance will tilt in favour of granting bail.”20
In England, bail has been granted where it otherwise ought not to have been granted on account of ill-health.21
E.
PRE-TRIAL BAIL Much of the criticism concerning bail decisions has centred around the
adequacy or otherwise of the information available to the court about the defendant and his ties with the community, personal relationships, residence, employment etc. Pre-trial bail is significant in the judicial process and if a presumption is to exist in its favour, the question which arises is in what circumstances is it proper for bail to be refused? In England this has been dealt with since the early 1970s, and indeed, in 1971 the Home Office Working Party's findings on bail saw its proposals translated in substance into the Bail Act, 1976. One of the most important contributions of the working party was in making clear the distinction between the REASONS for a refusal of bail and the EVIDENCE in support of those reasons. For instance, a prosecutor may object to bail on the ground that the applicant has no fixed abode and that he has a criminal record. Critically examined, this is quite alien to both sense and logic. Lack of a fixed abode and being a person with a criminal record cannot be used as reasons for locking up people22. The Working Party identified the main
20 21 22
Criminal Application No. 446 of 1986. Kirby -v- King (1714) 93 E.R 338. Brian Harris, The New Law of Bail, Sussex, Barry Rose Limited, 1978 Page 86 of 382
reasons for refusing bail as being the likelihood of the accused absconding and the likelihood of further offences being committed. In light of the above, it is appreciated that the absence of a fixed address could be evidence in support of the argument that the defendant would not appear at the adjourned hearing and a record of previous convictions could be evidence for anticipating that if released, he might commit other offences while on bail. Several reasons have been suggested for refusing bail and several others have also been propounded for its grant.
1. Fear Of Absconding
The trial of serious offence cannot normally proceed in the absence of the accused. Therefore, any remand arrangements which fail to secure his attendance will be unsatisfactory, as Lord Russel said;
"The requirements as to bail, are merely to secure the attendance of the prisoner at the trial.”23
Where the only objection to bail is fear of absconding there should be few cases indeed where the court cannot by calling for adequate and sufficient sureties and by imposing suitable requirements ensure the attendance of the accused. If he fails to find sureties, he will necessarily remain in custody, but it is hoped that courts will not refuse bail with sureties simply because they believe that the accused would be unable to obtain them.
23
R -vs- Rose (1885-99) All E. R at 851. Page 87 of 382
2. Fear Of Further Offences
It does not matter how many sureties are tendered, they will still not be adequate to meet the case if the true ground for objection is that the defendant will commit an offence or offences while on bail.
While referring to a
defendant who had committed nine offences while on bail, Atkinson -J- noted that "... to let such a man loose on society until he has received his punishment for an offence which is not in dispute is in the view of this court very inadvisable24".
3. Interference With Witnesses This is a more difficult consideration for the court to evaluate. Such an objection can easily be made without foundation. On one hand, fears of this sort may be felt by experienced police officers and yet on the other hand be incapable of proof. The home office working party commented:
"The possibility of the defendant interfering with witnesses will usually be relevant only where the alleged offence is comparatively serious and there is some other indication such as a past record of violence... of the defendant. Where there is a substantial ground for fearing such interferences this seems to be a very strong reason for refusing bail”25.
If the prosecution is objecting to the release on bail on the ground that the accused is likely to interfere with witnesses if granted bail, such an allegation should be supported by facts showing reasonable cause for the belief.
24 25
R -vs- Phillips (1974) A.C 111, 334. See para. 6 of the proposal. Also see Brian Harris, "New Law of bail" Sussex, Barry Rose Limiled, 1978 Page 88 of 382
4. Nature And Seriousness Of The Offence This has for ages been a factor considered at common law to determine bail decisions. The more serious the offence charged, the stronger the temptation to abscond26. The Kenyan courts have also given the gravity of the offence great weight in bail determinations. Thus in R –vs- Peter Kariuki27 the charge was that the accused had told the Manager of the Egyptian Airline (Egyptian) in Nairobi that their aircraft would be blown up by the engineering section of the East African Airways after take-off. The information was false. The accused applied for bail but was refused on the ground that the accused made a serious allegation which resulted in scaring the passengers on board. Where a case arouses the interests of the state, courts find themselves in difficulties when trying to play their role as custodians of human rights. The net effect is that the accused is denied pre-trial liberty as was indeed the case against Robbert Martins.28 Here, the accused, a senior lecturer of the University of Nairobi was charged with (among others) inciting students to riot. He applied for a release on bail but was refused on grounds that the crisis at the University had not yet been quelled. On appeal to the high court, Madan C J upheld the decision of the lower court to refuse bail.
5. The Severity Of Punishment The court should have regard to the likely sentence if the accused is convicted. This is so because his perception of the probable consequences of a conviction may be expected to have considerable effect on his reaction to bail. If for
26 27 28
R-vs- Barronet and Allain, (1852) 17 Y.P 245. Case reported in Sunday Nation Jan. 4, 1976 at p.3, In Resident Magistrate's court at Nairobi, Criminal Case No. 1321 of 1975. Page 89 of 382
instance, the penalty is likely to be a fine or probation the defendant is less likely to abscond than if the penalty after conviction is a long custodial sentence.
6.
Illness Hardship to a defendant who has been refused bail may arise through
serious illness. This has been recognized in America under section 73 of the Institute Code which provides that courts, when satisfied upon investigation that any confinement will endanger life may admit the defendant to bail.
7. Delay Delay in the prosecution of a case through failure either to indict or to try completely, constitutes a reason to allow bail as there may be great hardships on the defendant29. Where the accused is applying delaying tactics and keeps postponing the date for trial, the court may exercise its discretion and withdraw bail where it had been granted30.
8.
The Defendant's Character And Antecedents These include an accused's previous convictions and not the whole of his
past history. If the defendant has abused the grant of bail in the past, or if he is already on bail in respect of another charge, these facts should count strongly against him. In other cases however, the defendant's previous convictions may not necessarily provide a reliable guide to his likely reaction to bail unless they disclose a large number of serious offences. A case in point is the English decision in R –vs- Vallet31 where Lord Goddard CJ held inter-alia that
29 30
31
People -v- Tinder 19, Cal. 539. R -vs- Muturi Kigano [Reported in Daily Nation Nov 18th 1975, at 3] [also Daily Nation 19th Nov 1975 at 3] (1951)1 All ER 231. Page 90 of 382
'character and antecedents' of the defendant are not limited to previous convictions. It has further been observed that an order to find sureties for good behaviour is not an order made on conviction32.
9.
Other Factors To Be Considered
Other factors to be considered include the defendant's association and community ties. The strength of the evidence is a matter to be considered in each case in conjunction with the seriousness and nature of the offence charged. If the case against the defendant appears to be weak in the eyes of the court, it should be an additional ground for considering the grant of bail. One of the most fundamental questions in the law of bail is whether or not the courts should be allowed any discretion in refusing to release on bail, and if so, to what extent33. It has also been said that the general guarantee of bail as found in the Constitution is applicable only before conviction34. Fears mount in many people when this discretion is being exercised for a number of reasons. First, there is always the probability that the amount of bail will be set by an official who is not entirely acquainted with the significant facts of the case. These include the socio-economic factors of the defendant. The bail required may be excessive, and although this is remedied by the Criminal Procedure Code35 it is not impossible to have the imposed bail being excessive. It has infact been held that mere inability to procure bail does not of itself make the amount excessive36. Bail is excessive only if the amount required is unnecessary
32
33 34
35 36
R -v-London Sessions Appeal Committee Ex-parte Beautmont (1951)1 All ER 232. See Waite, ‘The Problem of Bail’ (1929) A.B.A.J, 71. See OrField L.B, "Criminal procedure from arrest to Appeal", (New York, New York University Press, 1947). Section 123 (2) and (3). Ex parte Malley- 50 Nev, 248; (1927)53 A.L.R. 395. Page 91 of 382
to secure the compliance of the defendant with the bail bond37. In Kenya the factors to be considered in exercising bail discretion are not enacted in the Criminal Procedure Code. However, against the primary purpose of ensuring the accused's attendance at his trial the following factors should guide a court seized of a bail application.
(a) Nature of the accusation, (b) Gravity of the offence and the severity of punishment in the event of conviction, (c) The antecedents of the applicant in so far as they are known, (d) Whether the applicant has a fixed abode, (e) Whether he is likely to interfere with any of the prosecution witnesses or any evidence tendered in support of the charge.
F. BAIL PENDING APPEAL Bail pending appeal primarily depends upon the cogency of the grounds of appeal, although ultimately its grant will depend on the exercise of the court's discretion on the particular facts of the case.38 The principles governing the grant of bail pending appeal differ from those governing bail before conviction. Bail pending appeal may be granted after considering:
(a) Whether leave to appeal has been granted, (b) Whether there is a strong likelihood of success of the appeal, (c) Where there is a risk that if bail is not granted, the sentence will have been served by the time the appeal is heard.
37 38
People ex parte summons -v- snow 340 iu 469; (1688-93) I. N.P., 170 Thompson D.R, Proceedings in the Criminal Division of the Court of Appeal, Sussex, Barry Rose Publishers Ltd, 1970. Page 92 of 382
Even in these circumstances, bail is not always automatic. In the case of Shah –vs- R39 it was suggested that rather than grant bail, steps should be taken to see that the hearing of the appeal is expedient and it was further added that bail should be granted only in exceptional cases. In Somo -vs- R, Trevelyan J noted:
"It seems to me that where these applications are considered it must never be forgotten that the presumption is that when the applicant was convicted, he was properly convicted… That is why, where he is undergoing a custodial sentence, he must demonstrate...
that
there
are
exceptional
or
unusual
circumstances in the case.”40
These exceptional or unusual circumstances are different from those that pertain to pre-trial bail and as noted by Sheridan J, "Different principles must apply after conviction ...41”. The most fundamental ground for consideration is whether the appeal has an overwhelming chance of success, and where this is shown then there is no justification for depriving the applicant his freedom. In Motichand-v- R, Muli – J-42 (as he then was) granted bail on the ground that the appeal had a probable chance of success. Muli -J- refused to follow the decision in Lamba. He noted that if the test in Lamba –vs- R43were to apply, it would virtually mean that in all applications for bail, the overwhelming probability of success of the appeal must be conclusively demonstrated. In doing so, it would be tantamount to constituting the court hearing the application for bail, a Court of Appeal. He 39 40 41 42 43
13th August 1976 C. A (unre ported). (1972) EA 476 at 480. Masran -vs- R (1960) EA 321. Motichand -v- R (1972) EA 399. Raghbin Singh Lamba -vs- R (1958) EA 337. Page 93 of 382
further noted that it would amount to a deprivation of the fundamental rights and freedoms of the individual which the Constitution guarantees, he said; “... Section 357 (Criminal Procedure Code) permits the admission to bail pending appeal and I see no justification in applying too stringent a test to defeat this statutory provision...”44
It was further noted that a single factor is not enough to warrant a grant of bail but the totality and cumulative considerations of all the facts of the case.
BAIL PENDING APPEAL ON A PLEA OF GUILTY The Criminal Procedure Code provides that an appeal will not be allowed if the accused is convicted on his own plea of guilty. An appeal will only be allowed as regards the legality of the sentence45. In the case of Merali –vs- R46 the applicant had been charged and convicted of an Exchange Control offence on his own plea of guilty. He filed an appeal claiming inter-alia that the plea was equivocal. He applied for bail pending appeal. Notwithstanding the plea of guilty, the court held that where and if the requisite tests were met, bail would be allowed. Harris -J- was alive to the fact that by virtue of section 348 (Criminal Procedure Code) an appeal would not be allowed on a plea of guilty. However, this bar is only to the extent that it (plea) is not bereft of legality - that is; it must be unequivocal and be freely given by the defendant. The defendant himself must infact plead and it is not enough that counsel pleads on his behalf by indication or otherwise. This was the decision in R –vs- Heifer47. Harris J
44 45 46 47
See Note 5 (Supra). Section 348 (Cap 75). (1972)EA 47. (1951)1 KB 29. Page 94 of 382
gave four conditions to be considered:
(a)
Character of the applicant;
(b)
The possibility of a substantial delay in the hearing of the appeal;
(c)
Whether the offence with which the applicant was charged involved personal violence; and
(d)
That the appeal is not frivolous or vexatious and has a reasonable possibility of success.
The application was allowed and while agreeing that no precedent existed before this case (for grant of bail pending appeal on a plea of guilty) the court observed that:
"... notwithstanding that no precedent has been found... for granting of bail pending an appeal from a conviction based on a plea of 'guilty'... subject to proper safeguards, the present application should be allowed.48 In Raghbin Singh Lamba -vs- R49 the arguments for bail pending appeal were that the appeal could more easily be prepared if the applicant was on bail, previous good character of the applicant and the hardships to his dependants if he remained in prison. In his judgment, Spry -J- held that the principle to be applied is that 'bail pending appeal should only be granted for exceptional and unusual reasons'. He further noted that neither the complexity of the case nor the good character of the applicant nor the alleged hardship to his dependants could justify the grant of the bail. Had the court been "satisfied" that there was
48 49
(1972) EA 47 at 49. (1958)EA337. Page 95 of 382
an overwhelming probability that the appeal would succeed, the application would have been granted. The present application was dismissed for want of satisfaction to the court that there was an overwhelming probability of success. The decision which was later denied force by Muli -J- in Motichand50. While insisting on unusual reasons, Spry -J- was of the view that when a person is awaiting trial, the onus of proving his guilt ultimately rests with the prosecution and consequently, the onus of showing cause why bail should not be granted. On the other hand, when a person has been convicted the onus is on him to show cause why the conviction should be quashed and similarly, its upon him to show cause why as a convicted person, he should be released on bail.
"...the fact remains that the prisoner has been convicted and the onus is on him to show that he was wrongly convicted.51 A short custodial period, as accepted by Madan -J- in Hasham -v- R52 is not in itself a special ground for granting an application for bail. However, without prejudice to this argument, if the sentence is the maximum provided, then the fact should be taken into consideration as there is the possibility that the sentence might be served before the appeal is heard or when it is going on. Such was indeed the case in Abdullah –vs- R53 where the appellants had already served their sentences and had been discharged when the appeal was allowed, the conviction quashed and sentence set aside. It has also been noted that delay alone is not enough and must be accompanied by other factors, but in exceptional cases could be considered alone. However, courts seem more prepared to take the case in its totality rather
50 51 52 53
(1972) EA 399. Supra (note II) at page 337. Criminal Appeal No. 582 of 1967 (unreported). (1963)EA223. Page 96 of 382
than pick specific factors. Harris -J- said: "...taking the case AS A WHOLE, I am satisfied...54"
The question whether the Court of Appeal can grant bail pending appeal was discussed in the case of Michael Otieno Ademba –vs- R55. In this case the appellant pleaded guilty to a charge of personating a person employed in civil service, contrary to section 105(b) of the Penal Code. He was sentenced to twelve months' imprisonment. He appealed against the sentence to the High Court, which declined to grant bail pending the appeal. He subsequently appealed against the judge's refusal to grant bail. Porter, Kneller and Hancox JJA held that the Court of Appeal has no jurisdiction under Criminal Procedure Code, or the rules of the Court of Appeal56 to entertain an appeal from a refusal of the High Court to grant bail pending an appeal to that court. In this case, the Court of Appeal noted that the accused's counsel had selected the wrong section and sub-section of the Criminal Procedure Code for his application to the High court for bail pending appeal to that court. He chose section 379(4) which empowers a High Court judge or a Court of Appeal judge to grant bail pending the hearing and determination of an appeal from the High Court to the Court of Appeal except where the appellant has been sentenced to death. The application ought to have been made under sections 356 or 357 (Criminal Procedure Code) according to whether the appellant has or has not entered his appeal in the High Court. The Court of Appeal followed the case of Nemchand Govindji –vsRegina57 where the former East African Court of Appeal held that it had no jurisdiction to grant bail pending an appeal to the Supreme Court of Kenya58.
54 55 56
57 58
Merali -vs- R (1972) EA 47 atg 49, See para. G and H. Court of Appeal Reports (1983) Vol 1, at 187, [ (1983)1 C.A.R. 187]. Rule 5 of Court of Appeal rules deals with bail pending the hearing and determination of an appeal before it. (1954) 2.1 E.A.C.A266. The Supreme Court is now the High Court of Kenya. Page 97 of 382
As noted above therefore, a single factor may not suffice to warrant grant of bail pending an appeal and several factors must be considered before the discretion is exercised. In the Islam Ali Abdulla -vs- R59 it was held that an appellate court can only grant bail pending appeal where it is satisfied that there is a substantial point of law to be argued which could, result in the conviction being quashed. The applicant had applied for an order that he should be released on bail pending the determination of his appeal. He had been sentenced to one year imprisonment with five strokes of the cane after pleading guilty to a charge of stealing goods on transit contrary to section 279(c) of the Penal Code. It was argued on his behalf that besides the applicant's plea of guilty in the court of first instance being not unequivocal, there were irregularities pertaining to the taking of that plea which were incurable. It was further contended that the factors outlined in support of the charge laid against the applicant did not disclose the offence with which the latter was charged. It was further argued that by the time the appeal is heard and determined, the applicant will have served the sentence. The court asked itself whether the above facts were exceptional to the extent that they drive the court to the conclusion that justice can only be done by granting bail. The court further noted the dictum in Torroha Mohammed Torroha –vs- R60 where an appellate court is satisfied that there is a substantial point of law to be argued and that it could lead to the conviction being quashed, the court may grant bail pending appeal. In refusing to grant the bail, the court stated inter alia that:
"...Indeed, we are as of now unable to say that they (above reasons) could result in the applicant's conviction being
59 60
Criminal Application No. NA1.2 of 1989. Court of Appeal Criminal Application No. NAI. 5 of 1988 (unreported). Page 98 of 382
quashed. Accordingly in the judicial exercise of this court's discretion, we refuse the applicant's application and dismiss the same".
G.
SURETIES
In considering the suitability of sureties, regard may be had to: (a) His financial resources, (b) His character and previous convictions, (c) His proximity to the bailed person, (d) It is essential that the person giving bail should be interested in looking after and, if necessary using powers he has to prevent the accused from escaping.61
It has however, been held that a court may not refuse a surety for his political opinions or otherwise inquire into his private interests or character62. In England, to ensure that sureties are not driven by monetary consideration it is settled law that an agreement to indemnify sureties is an illegal contract63 and has been made an offence in England under the Bail Act (1976) at section 9(1). Further,
the
Criminal
Justice
Act
(1967)64
introduced
special
requirements of bail. This section was re-enacted in the 1976 Act and allows the court to impose any conditions it considers necessary to secure that a bailed person:(a) 61
62 63 64
Surrenders to custody;
See North J in Consolidated Exploration and Finance Co. Ltd -vs- Musqrave(1900)64 J. P.89. R –vs- Badger (1843) 7 J.P. 128. R -vs- Porter (1908-10) All. ER 78. Section 21 thereof. Page 99 of 382
(b)
does not commit an offence while on bail,
(c)
does not interfere with witnesses or otherwise obstruct the course of justice,
(d)
makes himself available for purposes of inquiries or a report.
In Kenya, the law as to sureties is laid down in section 123 of the Criminal Procedure Code. A surety simply defined is a pledge by some other person guaranteeing that the accused person shall appear for his trial and if he does not then the surety shall pay to the court a certain sum which has been fixed by the court. The qualifications that need to be met by one in order to stand as surety were discussed in the case of R –vs- Gabhai Jessa65. A person standing as surety must be a person of social standing in the community. He must also be aged twenty one or above and must be capable of meeting his financial obligations as a surety. Unfortunately, the introduction of wealth into the law of bail has led to a distinction based on the financial well being of each person. This has led to the poor being denied bail, yet, all shall be accorded equal treatment of the law 66. Bail is therefore seen as no longer serving the purpose for which it was intended. Section 123(2) provides that bail should be granted with due regard to the circumstances of the case and should not be excessive. However, determination of what is excessive raises a problem. The mode of granting bail is a discretionary exercise and further, there are no guidelines as to what sums should be deposited. What is excessive can only be determined accurately by bringing before the court (or before the officer so seized of the matter) the
65
66
High Court Bulletin No. 54 /1963 at P.31. It should be noted that the Age of Majority is now 18. See the Age of Majority Act Cap 33 of the Laws of Kenya. See Constitution section 82. Page 100 of 382
accused together with a document to show what property or wealth he owns assuming he does! The section also provides that bail will be determined having regard to the circumstances of the case. A test for granting bail was set in the Jaffer Case67 where it was stated that the true test of a bail application is whether its grant will be detrimental to the interest of justice68. However, the term interest of justice is so wide that it cannot offer a definite guideline. It has also been said that an aspect to be considered while granting bail (or refusing) is the prisoner's safety. There ought to be a cooling off period so that the people he (accused) had wronged are not aroused and lead to further offences. Such a consideration heavily relies on the nature of the offence charged. The case of R -vs- Gajjan Singh and Others69 is illustrative and here where the landlord was charged with a criminal offence, letting him off could have led to a breach of the peace i.e. attack by the tenants. The court observed that:
"... that application was opposed by the prosecuting advocate not on the ground that the appellants might not appear to stand their trial but on the ground that there was reason to apprehend breach of the peace by one side or the other. ….We consider that the attitude taken up by the prosecuting advocate was very sensible and wise...70"
H. BAIL BOND The bulk of the law relating to bail and bond is outlined in the Criminal
67 68 69 70
(1973)EA39. Ibid at 41. (1947) 14 E.A.C.A III. Ibid at 113. Page 101 of 382
Procedure Code and the Police Act71. Section 36 of the Criminal Procedure Code empowers a police officer in charge of a police station, where an accused cannot be brought before a court within the required time ‘... unless the offence appears to be of a serious nature, release the person on his executing a bond, with or without sureties...' Section 23 of the Police Act emphasizes the same. The purpose of granting such bail bond is to ensure that the accused persons do not serve pre-trial custody/sentences. However, the only accused persons who may qualify for the release upon executing such a bail bond are those charged with minor offences. Bond can be given for prevention of offences72 as well as security for good behaviour73. Habitual offenders can only be bonded by a Magistrate74, who when granting such a bond must state the information received, the amount of bond granted or to be executed, the period for which it will be in force and the number, class and character of sureties if any that are given.75 Section 125 of the Criminal Procedure Code states that in granting bail and before the release of the accused person, a bond for the amount stated shall be executed by the accused in case of personal recognisance, or by one or more of the sureties in case of bail bond. The bond shall state the time and place of appearance. Release then follows. In some instances, a bond has been discharged in the absence of the accused. The Tanzanian case of Mahmood –vs- R76 indicates that such an order (of discharge) is valid until set aside by the High Court. In this case, the application was security for the attendance of the accused in a criminal case, when the accused failed to appear, the accused applied to be released/
71 72 73 74 75 76
Cap. 84. Section 43 Criminal Procedure Code (Cap 75 Laws of Kenya). Section 44 and 45 Criminal Procedure Code (Cap 75 Laws of Kenya). Section 46 Criminal Procedure Code (Cap 75 Laws of Kenya). Section 47 Criminal Procedure Code (Cap 75 Laws of Kenya). (1974)EA300. Page 102 of 382
discharged from his bond, which discharge was granted. Later, the applicant was ordered to forfeit its bond. He applied to the High Court to review this order, and the respondent argued that the first order was a nullity and could be ignored, although it had not been set aside by a superior court. The High Court allowed the application and noted the following;
i) the first order was valid even if made irregularly, until set aside by the High Court; ii) an order irregularly made can only be set aside when the irregularity has occasioned a failure of justice; and iii) to uphold the forfeiture of a bond already set aside would occasion a failure of justice.
The mode and style of operation of bail and bail bond is not in strict sense wholly governed by the legal rules only. Persons who may be admitted to it largely depend on other social factors. This is so because the legal system or institution of a country cannot be looked at as being isolated, or abstract. It is part of a broader social, political and economic status of the country. It can best be understood only within the context of the concrete material conditions which brought it about and which continues to shape it. Any analysis, therefore, must focus on the economic, social, political and cultural organisation of the society in which it operates.
"... the structure of a society always forms the real basis which, in the last analysis, is to be explained the whole superstructure of the legal and political, institutions.77
77
Engels F, "On historical materialism in Marx and Engels; Basic writings on politics and philosophy." New York, 1959, at 43. Page 103 of 382
Therefore, although we have stated the rules as relates to bail and bond in Kenya, the practice may be seen to deviate. This deviation can only be explained after considering the above socio-political and economic factors.
I.
RENEWED BAIL APPLICATION
Renewed or successive application for bail will be heard de novo, only if there has been a change of circumstances. It has been suggested that only circumstances which have occurred since the last hearing or matters not brought to the attention of the court on the previous occasion, may be taken into account; A case for consideration is R -v-Nottingham Justices ex parte Davies78, whose jurisprudence, has been debated upon in several fora. In this case, the applicant, who had been remanded in custody pending his trial on a charge of rape made two successive application to justices for remand on bail. Each was refused on the grounds that his case came within one or more of the exceptions to the right to bail (as contained in the schedule to the 1976 Bail Act of Britain). When he subsequently applied to a differently constituted bench for remand on bail, he was asked whether, there had been any change(s) in the circumstances since the previous application. He informed them that there had been none but asked for a full hearing of the case on its merits. It was held that since there had been no change in circumstances, there were therefore no grounds on which to re-consider the application. Leave to appeal to the House of Lords was refused. The reasons given for the refusal were that although an accused has a prima facie right to bail, and although the matter must be considered on every application, nonetheless the earlier or previous finding, refusal of bail was a finding to be treated as "res judicata" or analogous thereto.
78
1980) 2 All. E.R 775, Page 104 of 382
The court should therefore start at the point when the matter was last considered and need only investigate the matter further if there are new circumstances or evidence of old circumstances not previously before the court. It has also been said that the mere passage of time is not itself evidence of a change in circumstances. The effect of the Nottingham principle means that a refusal of bail is indefinite unless and until something new turns up. "It is strongly submitted that the Nottingham decision is very bad79". Whereas the passage of time is not in itself a change of circumstances, it may lead to a change of circumstances. For example the risk of interference with witnesses may diminish as the police complete their inquiries and the taking of statements. Police objection to bail may diminish or even disappear with time. There is no doubt that in some cases, the renewed or successive application for bail may be hopeless and the reason(s) for refusing bail in the last application may have been overwhelming;
"... a robust court should be able to control its proceedings, to get fairly but expeditiously through bail applications, to shorten the prolix advocate, to express displeasure at hopeless applications, to curb abuse? but nonetheless still to consider the matter on its merit80".
The accused, whose liberty is at stake should be entitled to a full and proper hearing of his case, whatever it is. For instance, suppose that the earlier decision was bad, may be the evidence was misunderstood, the reasons for refusal were not justified by evidence or were otherwise spurious, is the accused still to be bound by a bad decision?
79 80
"Bail: Renewed Application", The New Law Journal (1981)Vol 131,132 - 133 Ibid at 133, Page 105 of 382
What one can then note is that refusal of bail may be an unfortunate necessity, but the liberty of the citizen is not to be trifled with. A lawful bail application should always be treated on its merits.
J.
BAIL AS VIEWED BY COURTS
Despite the fact that the substantive law of bail is being restated every day, the subject generates great tension and passion between the bar and the bench. The bar admires the bench which grants bail liberally according to its members' views and convictions. However, no Magistrate will allow or refuse bail indiscriminately and it has therefore been said that it is a fallacy aggravated by coincidences or ignorance that some Magistrates are seen to be impervious to the prisoner's rights; while others are considered excellent, steeped in sympathy and constitutional propriety towards the prisoners. However, courts try to apply the law according to the circumstances in each case and make the decision (to grant or to refuse bail) in a responsible manner. Courts claim competence to deal with such cases as they deem fit because they carry the burden of conscience bearing in mind the conflicting claims of the prisoner and those of the state. The dilemma is best illustrated by the Indian case of Lokmanya Tilak.81 He was arrested on a charge of sedition and an application for bail made and argued on his behalf by a young barrister, Mr. Daver, before Justice Ronade, who was himself an admirer of Tilak's philosophy. The application was refused and two days later, it was taken before a Muslim judge, Tayabji Badruddin. In view of the anti-muslim bias of the Article which was the basis of the prosecution, Mr. Justice Badruddin was hardly expected to allow Tilak bail. However, that is exactly what happened! Thus the two jurists had differing views about the ends of justice. The young
81
Second Source - Proceedings of Kenya's 1st Law Society Conference, Rauf, A 1978. Page 106 of 382
barrister, Daver, was elevated to the High Court Bench and in the fullness of time, and by the irony of fate which only history is capable of, Tilak was again charged with sedition. Bail application was again made, but this time, Daver was not dealing with it from the bar, but as the presiding judge. The same arguments that Daver had presented to Justice Tayabji were presented to him. Daver -J- refused bail saying:
"If it was only a question of personal feeling, I would be most unwilling to keep the prisoner in custody. I think it would be wise under the present circumstances not to give reason or enter into a discussion of the considerations weighing with me in refusing the application.”
The bench has times without number shown that it is qualified just as the bar is, and that their training does not remove them from their belief in human rights which they strive to uphold. Their (judges') philosophy is inconsistent with conscious distortion of the fundamental and noble concepts of law. However, they are called to perform the impossible task of matching the ideal with the reality. The conflict between the ideal and the reality is evident in all corners of nature. Santayana82 exemplifies the ambivalence:
"... the whole transcendental philosophy, if made ultimate is false, and nothing but a selfish perspective hypothesized... because nature is not a product of the mind but on the contrary there is an external world."
82
Sarvtayana, "Germany Philosophy and Politics". Page 107 of 382
The circumstances of each case must be considered on their own merits. For the defence, the litmus test of the court's impartiality and independence is determined by its attitude towards the bail application. On the other hand, the prosecution counsel will judge the court's sensibility to the social and national imperatives from the opposite direction. This reflects the dynamism with which bail questions are answered and determined. The attacks upon the court are merely expressions of the unrest which characterises the concern of the lawyers and jurists with the fundamental rights of the individual enshrined in the Constitution of Kenya and the United Nations Declaration of Human Rights to which Kenya is a subscriber. The constructive criticism is welcome and ought to be encouraged - constant vigilance is the price of eternal liberty and peace. However, the hope to achieve the absolute right to bail, one must campaign to change the law and make it mandatory for the courts to grant bail in all but very few exceptional cases. This is a difficult suggestion. For a start an experiment could be made to narrow down the court's discretion on bail in specified cases and widen the list gradually, all depending on the success of the experiment. But mandatory bail may appear to be risky at this stage of the development of our institutions, but in view of the importance of the prisoner's right to bail it is a risk worth taking.
K. VARIANCE BETWEEN LAW AND PRACTICE
It is a truism that practice does not always follow the law. A variance is often detected. Delay in the criminal process is a common feature despite the fact that it is unconstitutional. While one cannot turn a blind eye to the fact that crime rate is on the increase, which occasions pressure of work, one still feels that the main cause of the delay lies with those who are entrusted with the administration of justice. There are delays occasioned by the arresting of an accused by officers before investigations are effected on grounds of suspicion Page 108 of 382
with investigations being left to be done later. The apologists of this 'misfit' justify it on the premise that if no arrests are made before the investigations are. done, that would defeat administration of justice. Several factors explain this variance between the law and what the practice is.
i)
Socio-economic conditions of the accused: Bail should be fixed according
to the circumstances of the case but unfortunately this term has been interpreted by the courts to cover only the nature of the offence, and the evidence of the accused. The economic well-being of the accused is not given the requisite attention and hence more often than not the amount fixed is excessive.
ii.)
Surety: The more influential and well-known to the police and the court
the surety is, the greater the likelihood of bail being granted.
iii)
Ignorances: The ignorance of the accused of his/her rights is a major
problem to pre-trial liberty. In Kenya only a minority is literate and even the few have no proper exposition to court procedures and will therefore not apply for bail.
L. SUGGESTED REFORMS
i)
Kenyan law on bail be amended to incorporate a provision like the Ugandan Act83 which stipulates that the Magistrate should inform the accused persons of their right to apply for bail.
ii)
Section 36 of Criminal Procedure Code should be amended to empower police officers in charge of a police-station to release on bail. The officer is supposed to release a person who is not charged with a capital offence
83
Magistrates' Courts Act (Uganda) section 75. Page 109 of 382
if it is not possible to bring him before the court within the stipulated period. Secondly, it must not appear to him that the offence is of a serious nature. This last requirement should be deleted because practice has shown that nearly every offence appears to be of a serious nature to police officers, Bail has been refused by police officers for offenses such as being found drunk and disorderly in a public place. A list of bailable and non-bailable offenses should he made available to the officers with a provision for adherence to the list. This is the only way to render operative and effective the section84 for as it stands now, its a dead letter law. iii)
Magistrates should have full information regarding the defendant's economic standing, social and family ties, nature of the offence and evidence against him before exercising his discretion.
M.
THE LAW OF BAIL: FURTHER THOUGHTS ON REFORM
The bulk of the law relating to bail in Kenya is found in the Criminal Procedure Code and in particular section 123 thereof. It provides that the issue of bail can arise at any time that is before proceedings are commenced or during the course of them as the section states "at any stage of the proceedings". The section further gives police officers in charge of a police station power to grant bail. It is provided that a cash bail or a bond with sureties may be granted. Usually, the cash bail is set at a rate that even if the accused, absconds the amount, it is enough to repair damage done or compensate for anything lost or injuries suffered. Cash bail is usually given in offences subject to minimum sentence as was done in the case of Jaffer -vs- R85, where the court held that all offences falling under Minimum Sentences Act of Tanzania are bailable and proceeded
84 85
Section 36 of Cap 75. (1973) EA 39. Page 110 of 382
to grant a cash bail of Shs. 5,000/- and one surety.
Section 123(1) provides for a bond without sureties as well. This can be a free bond on the accused's own recognizance that he will appear for trial and he does not have to pay or deposit any security. Where the accused has executed a bond without sureties or no security and he fails to appear in court, a warrant will be issued and when found he shall face a criminal charge for absconding. Where there is a surety or security and the principal fails to turn up, the surety forfeits the amount deposited, or in the case of property it is forfeited to the state, The Ugandan Case of Nsubuga -vs- R86 lays down the law relating to forfeiture. In this case, an accused was granted the sum of Shs. 500/- on the 2nd day of February 1967 in the Magistrates court Mengo, as security for his attendance, for trial on July the 25th 1967 and was released on bail. Sometime on the 25th July 1967 the Magistrate recorded that the accused was absent and a warrant of his arrest was issued at the request of the prosecution. On 8th August 1967, the accused appeared before the court and stated that he had been present on July 25th 1967 but his name was not called out. The prosecutor stated that the accused had been absent but no evidence was called to prove this. The Chief Magistrate then ordered the Shs. 500/- to be forfeited. The accused appealed. It was held by Sir Udo Udoma (C-J) that:
i)
a mere statement by the prosecution is not sufficient to satisfy the requirements of section 130(1) of Uganda Criminal Procedure Code [which is similar to section 131(1) of the Kenyan Criminal Procedure Code],
ii)
evidence should have been given on oath,
iii)
the procedure adopted by the Magistrate was defective. The appeal was
86
(1968)E.A. 10. Page 111 of 382
allowed and the forfeited sum ordered to be refunded to the accused. Sir Udo noted:
"... it is beyond the reach of argument that before any person who has entered Into recognisance and who is bound by such recognisance to appear before a court can be called upon to pay the penalty prescribed in the said recognisance, or to show cause why such penalty should not be paid by him, it must have been proved by evidence to the satisfaction of the court and the ground of such proof must have been recorded in a record of the proceeding's of the court87. It was observed that the section88 is ambiguous in parts. For instance, what is meant by the term/expression 'The Court shall record the grounds of such proof ’ Sir Udo wondered as to whether it would not have been sufficient to state simply that 'The Court shall record such proof.’ The above case concerned itself with failure to appear in court and the court was at pains in deciding whether the section should be read as:
"Whenever it is proved to the satisfaction of the court by which a recognisance under this code had been taken when the recognisance is for appearance before a court that such recognisance has been forfeited"
or
87 88
Ibid at page 13. Section 130(1) Ugandan Criminal Procedure Code (See S,131(1) Cap 75). Page 112 of 382
"Whenever it is proved when the recognisance is for appearance before a court to the satisfaction of such court that such recognisance has been forfeited". The law in Kenya takes the position, as illustrated above89.
A number of proposals have been forwarded regarding the regulation of bail. Various writers have strongly indicated a need for reform. Michael King90 proposes the ideal model for bail system which is to have four main tenets:
(i)
Consideration be given on the number of defendants who can safely be released pre-trial. This is to be a comparative safety taking into account the other factors relevant to bail decisions. If, from the totality of the case it is evident that the accused person's incarceration is less when weighed against the probable consequencies of his release on bail, then bail will not be the appropriate step to take. However, if it is shown that it is 'safe' to grant it, his continued incarceration is without merit.
(ii)
There ought to be a very efficient mode of communication between the
people who are to make the bail decision (invariably the court and police officers) and those who are in possession, of information relevant to the bail application and decision. This information could include that which regards the accused's financial standing, his employment and community ties.(iii) It must be a ‘just’ system, 'just' should be taken to refer to equality and consistency. For instance there should be no discrimination against individuals or groups of individuals for reasons wholly unconnected with their suitability for bail. Further there should be safeguards to protect 89 90
Section 131(1) Kenyan Criminal Procedure Code (Cap 75 Laws of Kenya). Michael King, "Bail Reform", Criminal Law Review, (1974) at 451. Page 113 of 382
defendants in their applications for bail against the prejudices or even the eccentricities of individual courts or individual members of the judiciary. (iv) There ought to be adequate compensation for those persons who spend their time in jail awaiting trial and are then acquitted by the court or who have the charges against them dropped.
"... the decision whether or not to release a person before his trial will still contain an element of guesswork, and it is quite wrong that innocent people should suffer because those administering justice make the wrong guesses.”91
Similarly, if the accused is convicted and is to do a prison term, the time he spent in his pre-trial incarceration should he included while computing his prison sentence, for if this is not done, why was he in prison then? It is further suggested that before there can be a just and effective system of bail, there must first exist an effective- system for controlling and monitoring the pre-trial decisions of Magistrates92. This suggestion has been received positively by among other writers Martin Wright93 who suggests that reform must be undertaken to make the bail system accord with the constitutional and other rights of the accused especially when considering the presumption of innocence. There are numerous effects of pre-trial detention, and studies94 have shown that an accused who has been detained in jail between his arraignment and the final adjudication of his case is more likely to receive a criminal conviction or jail sentence than an accused who has been free on bail. Thus, a person's inability or 91 92 93 94
See Criminal Law Review (1974) at 451. Ibid at page 457 “Bail: Recognition of the need for Reform". Criminal Law Review, 1974 P. 457, See 'The Manhattan Bail Project' - reported in The New York University Law Review,Vol. 67, 1963. Page 114 of 382
unwillingness to post a bail may result in more than a temporary deprivation of his liberty95. Rankin noted that: “…detained persons are more likely to receive prison sentences than bailed persons, regardless of whether they have previously been arrested or convicted...96
There has been a concern on the issue of who owes the duty to ensure that the accused appears. Several sources have suggested that the duty is wholly on the state and not on the relatives or friends of the accused. There are several cases and legal works which question the legality of resting the burden which should necessarily be borne by the state, onto an individual. The case of R -vs- Wood Green97 captures the matter. The applicant sought judicial review of an order of the Crown that she forfeit the sum of 35,000 pounds which she had taken as surety for her brother, a defendant to a charge of conspiracy to supply unlawful drugs. The applicant's brother duly appeared but when the case was later refixed for trial he failed to report to the surety (the applicant) as he had always done. She informed the police and she also sought to withdraw her surety. It was held inter-alia that it was open to a surety to make a complaint in writing at a police station that the defendant was unlikely to surrender to custody and a constable could thereafter arrest the defendant without warrant. However, it was further held that there was no power for a surety to withdraw as the applicant had sought to do, unless the defendant was before the court and an appropriate application made. There has been a great concern over the above judgment and several writers have thought that there is a strong case for saying that the 95
96 97
Ann Rankin, "The effect of Pre-trial detention", New York University Law Review, (1964) vol 39 641. Ibid at 648. R vs- Wood Green Crown Court ex-parte Jemima Home, Reported in Criminal Law Review 1991 at 694 Page 115 of 382
responsibility for ensuring that defendant's turn up for trial should be on the state and not on the family and friends of the accused, however willing they may appear to be to undertake this role98.
98
See Corre, 'Bail in Criminal Proceedings' 1990 [From second source (1991) Criminal Law Review]. Page 116 of 382
CHAPTER SIX CHARGES AND INFORMATION
A. INTRODUCTION The Criminal Procedure Code provides a number of ways in which a complaint may be made. It is by virtue of such a complaint that proceedings will be instituted. Section 89(1) of the Criminal Procedure Code provides that proceedings may be instituted either by the making of a complaint or by bringing before a Magistrate of a person who has been arrested without warrant, further, a complaint may be made orally or in writing, but, if made orally, should be reduced to writing by the Magistrate, and be signed by both the complainant and the Magistrate1. The form of the complaint so made is regulated by rules of procedure as discussed below.
B. CHARGES A charge is a formal written accusation of an offence drawn by a Magistrate or by a police officer and signed as required by law for the purpose of use in preliminary proceedings or in a proper trial. It lies against all persons who actually commit, or who procure or assist in the commission of any crime or who knowingly harbour a felon. A charge is drawn among other reasons as a means of making known to the accused person the offence with which he is charged. This is to enable him to fully prepare his defence. The Constitution also gives significance to the charge. It is required that no person can be convicted of an offence unless that offence is defined and the
1
Criminal Procedure Code section 89(3) (Cap 75). Page 117 of 382
penalty thereof prescribed in a written law2. This makes it mandatory that the charge be based on some known offence (known to law) otherwise it cannot stand. The law prescribes the manner in which the charge is to be framed. It contains three basic parts: the commencement, the statement of the offence and the particulars of the offence. The charge is a succinct description of the offence and the particulars and it should not contain any evidence. However, the particulars must be clear enough to enable the accused person to know what offence he is charged with. This notion and centrality of clarity was noted in the case of Nahashon Marenya. –vs- R3. The appellant had been charged with failing to comply with a curfew restriction order contrary to section 9 (1) of the Public Order Act4, The particulars of the offence did not mention this matter making the charge equivocal. Todd -J- allowed this appeal and said inter-alia that:
"Charges and particulars should be clearly framed so that the accused persons know what they are charged with, and proper references should also be made otherwise confusion may arise? and if confusion arises, it cannot be said that failure of justice may not have been occasioned"(emphasis added).
C. EFFECT OF CITING WRONG OR NON-EXISTENT SECTIONS
Sometimes a charge may cite sections and sub-sections of statutes which are non existent. At other times, the charge may quote the wrong section. Sir
2 3 4
See Constitution S.77(8). Cr. App. No. 786 of 1982. Chapter 56 of the Laws of Kenya. Page 118 of 382
Udo Udoma focused on the point in Avone -vs- R5. In this case, the appellant was charged with three counts; one of obtaining credit by fraud, one of forgery and one of personation. The charge misdescribed the sections of the Penal Code under which two of the counts were laid. The appellant was convicted on all three counts. He appealed contending that a conviction based on such a charge was a nullity in law. The court however held that the misdirections in the charge had not prejudiced the appellant and therefore the convictions should stand. In dismissing the appeal, Sir Udo briefly noted:
"I am prepared to overlook these serious lapses... because I am satisfied that the appellant, in the instant case was in no way prejudiced by these lapses... In my view no miscarriage of justice has been occasioned by these lapses6”.
Another case which spells out the judicial position on the question of non-existent and wrong sections is Sabur -vs- R7. The appellant was served with a summons to answer two charges preferred against him under the Traffic Ordinance, 1951. The first count charged the appellant with exceeding the speed limit for commercial vehicles and the second count was for reckless driving. The appellant was convicted and he appealed. It was contended on his behalf that he should have been charged under section 40(1) of the Ordinance instead of section 39(1) and therefore the charge was defective. But it was held that since the particulars of the offence were adequate to inform the appellant of the offence with which he was charged, there had been no failure of justice and the defect was curable under the Criminal Procedure Code. Looking at the Ordinance in question.
5 6 7
(1969)EA129. Ibid at 132. (1958) E.A 126. Page 119 of 382
“Section 39(1) provided that "no person shall drive a motor vehicle of any class or description on a road at a speed greater than the maximum speed prescribed for such a vehicle..."
Charges And Information
Section 40(1) Provided that "any person, who drives... a motor vehicle at a speed greater than the maximum limit lawfully imposed shall be guilty of an offence and shall be liable on conviction to a fine not exceeding Shs. 1,000/= or to imprisonment for a period not exceeding three months".
It is therefore clear that section 39(1) does not create an offence but merely prohibits exceeding the speed limit. Section 40(1) on the other hand declares it to be an offence. The Criminal Procedure Code provides that if the offence charged is one created by enactment it shall contain a reference to the section of the enactment creating the offence. The philosophy seems to be that if the defects have not occasioned a failure of justice, then the charge will stand and a conviction based thereon cannot be quashed on mere ground of the defect. Section 382 of the Criminal Procedure Code is clear that unless the defect has occasioned a failure of justice or has prejudiced the accused, an order or conviction should not be quashed. This does not however warrant the drafters to be careless. A limit beyond which the defects are not permissible exists. Grave defects cannot be countenanced. This issue has received judicial consideration in the Ugandan case of Uganda -vs- Keneri Opindi8. In this case, the accused pleaded guilty firstly for failing to display an 'L' plate and secondly for being a learner driver,
8
(1965)EA 614. Page 120 of 382
driving while not accompanied by a competent driver. The first count was laid under "section 9(b) 123 of the Traffic Ordinance" and the second under "section 9(a) and 12 of the Traffic Ordinance", 1951. It was contended in support of a revisional order against conviction and sentence that the counts were manifestly wrong in law in that the first should have been laid under section 9 of theTraffic Regulations (NOT ORDINANCE) and that the second failed to indicate the law under which the charge was laid. On behalf of the D.P.P., it was contended that the convictions on both counts should be stood as the accused was in no way prejudiced by the counts being laid under the Traffic Ordinance instead of the Traffic Regulations; and that it was probable that the framers meant section 9(b) of the Traffic Regulations. Sir Udo Udoma C.J held firstly with regard to the first count that there being no section 9(b) of the Traffic Ordinance, only section 9 (which did not create an offence) the particulars set out as constituting an offence however clearly stated, by themselves could not create an offence. Secondly, that the error was a fundamental one in law in that the accused was charged with a non-existent offence. It was further held that it was not competent for the court to speculate on the intention of the framer of the charge but must be guided in determining such intention, by the expressions contained in the record of proceedings, and it being impossible to ascertain from the record whether the second count was laid under the Traffic Ordinance or Traffic Regulations, the charge was bad and contravened section 347 (of the Ugandan Criminal Procedure Code)9. The conviction and sentences were set aside and the accused acquitted and discharged.
D.
PARTICULARS OF THE OFFENCE CHARGED
Every charge, or information should contain such particulars as may be
9
Equivalent to section 382 (Cap 75) Criminal Procedure Code Page 121 of 382
necessary for giving reasonable information as to the nature of the offence charged10. The particulars of the offence should contain the essential ingredients of the offence. It has been stated further that the particulars should be framed simply and in the ordinary language without recourse to the use of technical words and phrases. Sometimes, an error may occur in the particulars. If such an error has not occasioned injustice to the accused then a conviction therefrom cannot be quashed on appeal. Thus in Mwaura -vs- R11 it was held that a simple error in the particulars of the charge is not sufficient to occasion a failure of justice. In this case, the appellant accompanied by another tendered a forged currency note of Shs. 100/= at the entrance of a night club in Nairobi, the price of entrance being Shs. 10/= per head. The forged note was accepted and change given. The appellant later gave another forged note inside the club for cigarettes and received change. The appellant's companion later tendered another forged note for another packet of cigarettes to the receptionist who, on going to get change discovered the forgery. The appellant was arrested as he left the club but his companion escaped. The club handed over to the police five forged notes in its possession. The appellant was convicted under section 367(e) of the Penal Code and sentenced to five years' imprisonment. The charge read:
"Having possession of paper for forging contrary to section 367 (e) of the Penal Code [in that the appellant] on 25th day of December 1966, at Nairobi, jointly with others ... without lawful authority or excuse knowingly had in his possession five papers upon which were words, figures, letters, marks, lines as were intended to resemble and pass as a special paper such as is prescribed and used for making bank notes." 10 11
Section 134 (Cap 75) Criminal Procedure Code. (1967)EA345 Page 122 of 382
These particulars were a mixture of section 367(e) and (a) of the Penal Code. On appeal, Rudd and Trevelyn JA ruled that although the charge was defective, the defect was not of such an irregularity or error as had occasioned a failure of justice under section 382 of the Criminal Procedure Code.
E. LACK OF PARTICULARS AND WRONG INGREDIENTS
The question of 'no particulars' was considered in Wandera Reuben Kubanisi- vs- R12. The appellant was charged under section 389 of the Penal Code, the particulars stating that the appellant attempted to commit a felony contrary to section 389 of the Penal Code. The exact charge was styled thus;
"Attempted to commit an offence c/section 389 Penal Code".
Particulars: "Wandera Reuben Kubanisi on 29th January 1965 at 8 p.m at Bungoma Railway Station in Bungorna District of Western Province attempted to commit a felony cont. to section 389 Penal Code." In their ruling Rudd and Harris JJ stated inter-alia;
"This charge is bad for uncertainty because it does not state the felony that was alleged to have been attempted. We would add that contractions such as 'cont’, Penal Code'; and 'section' should, not be used in framing the particulars of a charge.13"
The appeal was thus allowed.
12 13
(1965)EA572. Ibid para i Page 123 of 382
Another issue which has received judicial consideration is whether a charge is defective if it contains a wrong ingredient of the offence or omits an essential ingredient thereof. The case in point is Yozefu and another-vs-R14. In this case, the relevant statute that had been contravened was Game (Preservation and Control) Act15 whose section 14 stated;
"It shall be an offence for any person to possess any live animal or any trophy, flesh or any other part of any animal which has been killed, captured or appropriated or obtained in contravention of this Act unless such animal or thing has been disposed of under the provisions of this Act by order of the Minister".
The two were charged and the particulars were that the accused on a certain date and at a certain place, were found in possession of game trophies without a valid licence from the Chief Game Warden, to wit seventeen drums made out of Zebra skins and forty seven pieces of Zebra skin. The accused pleaded guilty, were fined and fines paid. On appeal, which was allowed, it was held that the charge was defective in that it did not allege an essential ingredient of the offence i.e. that the skins came from animals killed etc in contravention of the Act. As per Spry JA;
"It is fundamental that every charge should allege all the essential constituents of an offence. In the present case, where an offence against section 14 was alleged, we think that the allegation that the pieces of skin came from an animal killed in contravention of the Act was an essential
14 15
(1969)EA236. Chapter 266 of the Laws of Uganda. Page 124 of 382
ingredient, and that its omission makes the charge defective.”16
The argument that "the offence is complete once a person is in possession of a trophy" was rejected by the court. The court opined that since the Act creates a number of offences, it is essential for the charge to make it clear which is alleged; and continued to say that the true interpretation of the wording of section 14 is that the section only makes it an offence to be in possession of the skin of an animal if that animal was killed, captured, appropriated or obtained in Uganda. This shows how important it is to understand the offence before one can draw up the charge. Another issue that has been the subject of determination it whether a charge is bad if it (the charge) relates to a contravention of an order yet that particular order alleged to have been contravened is not specified. The Ngige case17 focuses on the issue. The facts were that the appellant was charged with moving maize without a permit contrary to section 24 of the Maize Marketing Ordinance (Cap 338). On appeal, it was common ground that the particulars as laid in the charge did not conform to section 24(2) of the Ordinance which referred to contravention of an order issued under section 24(1) of the Ordinance, whereas the particulars did not refer to any such order. On this appeal, Rudd and Wicks JJ held that the charge was bad because it did not specify that an order made under section 24(1) had been contravened and did not specify the Maize Marketing (Movement and Maize products) order that was alleged to have been contravened. However, in cases of stolen property, it is not fatal to omit the name of the owner of the property. This was stated in the case of Zaverchand Hemraj
16 17
Ibid at 238 para F. Ngige s/o Gatonye -vs- R (1963) EA 663. Page 125 of 382
Shah -vs- R18 that a conviction based, on a charge that did not name the owner of the property cannot be quashed on that premise so long as the property is proved to have been stolen. On the question of form of the charge, it is important to note that the defence available to the accused be stated in the negative.19 This has further been judicially stated, in the case Lebiningin –vs- R20. In this case, the appellant was convicted on his own plea of guilty of illegal possession of game trophy. On appeal, it was contended that the charge was bad as it did not negative by averment all the defence open to the appellant, among other grounds. The High Court of Kenya held that it is not necessary in the charge to negate exceptions to or qualifications of the offence.
F. GENERAL FORM
The general form of a charge or an information is provided for at section 137 of the Criminal Procedure Code. It is required that the form of the charge conform as nearly as possible to the form provided in the second schedule (Criminal Procedure Code).21 If there are more than one count, the Criminal Procedure Code requires that they be numbered consecutively. The description of property should be in ordinary language and indicate with reasonable clarity the property referred to. It is not necessary to name the owner. Where the property is vested in more than one person and the owners of the property are referred to in a charge or information, it is adequate for purposes of the proceedings to describe the property as owned by one of those persons by the name with the other, and, if the persons owning the property are a body of
18 19 20 21
(1960)EA562 Section 137(b) (ii) Cap 75 Criminal Procedure Code. (1974)EA103. Section 137(a) (iv) Cap 75 Criminal Procedure Code (Cap 75 Laws of Kenya). Page 126 of 382
persons with a collective name, it is sufficient to use the collective name without
naming
any
individual22.
Such
names
may
be
'Trustees',
'Commissioners’, 'Club', 'Inhabitants' etc. If the property belongs to or is provided for the use of a public establishment, service or department it may be described as the property of the government23.
Paragraph (d) of section 137 (Criminal Procedure Code) provides that the description or designation, in a charge of the accused person, or of another person to whom reference is made therein shall be reasonably sufficient to identify him without necessarily stating his correct name, or his abode. If owing to the name of the person not being known, or for any other reason, it is impracticable to give such a description or designation, a description or designation shall be given as is reasonably practicable in the circumstances or the person may be described as "a person unknown.” It is further allowed that the gross sum may be specified, in certain cases of stealing. Thus when a person is charged with an offence under sections 28024, 28I25 28226, or 28327 of the Penal Code, it shall be sufficient to specify the gross amount of property in respect of which the offence is alleged to have been committed and the dates between which the offence is alleged to have been committed without specifying particular times or exact dates28. The notion of naming persons must be distinguished from the naming when the naming is the actual ingredient of the offence alleged to have been committed. The case of Christopher Omufira Akwabi –vs- R29, as analyzed
22 23 24 25 26 27 28 29
Section 137(c) (ii) Cap 75 Criminal Procedure Code (Cap 75 Laws of Kenya). Section 137(c) (iii) Cap 75 Criminal Procedure Code (Cap 75 Laws of Kenya). Stealing by person in public service. Stealing by clerk or servant. Stealing by Director or officer of Company. Stealing by agent etc. Section 137(j) Criminal Procedure Code (Cap 75 Laws of Kenya). Cr. App. No, 131 of 1989. Page 127 of 382
below, brings out the difference. A plea of guilty to a defective charge cannot stand and the accused person cannot be convicted and sentenced on such a plea. The Court of Appeal so held that the appellant was convicted on his own plea of guilty to the offence of giving false information to a person employed in the public service contrary to section 129(a) of the Penal Code. The particulars of the case were as follows: Christopher Omufira on 24th May 1989 at the Nairobi City Hall gave false information to one Mr. Shigholi, a person employed in the public service to the effect that some prominent personalities had given money to a Nairobi City Commission official in order to induce the said official and other workers of the commission to undermine the smooth running and operations of the Nairobi City Commission, which information the said Christopher knew to be false and likely to cause the said Shigholi to do an act which he would otherwise not do if the true state of facts respecting the said information was known to him.
Counsel for the appellant contended that there was an incurable defect in that it was improper to omit the names of the prominent personalities and the official of the City Council whose alleged misconduct formed the false information given to Shigholi. The counsel urged that that was a fatal omission. The court in its judgment ruled that it was imperative for the "prominent personalities" and the "official" to have been identified bynames in the particulars of the charge, as without the names or actual identifying information alleged to have been given by the appellant, the false statement alleged to have been given to Shigholi was incomplete. The charge as framed was incomplete and deficient to that extent and a plea of guilty to it is not quite unequivocal. In the court's view, "they" as witnesses must be distinguished from ordinary witnesses to an event. "In this case", the court said, " 'they' were not witnesses to an offence (i.e. the event) but are alleged to be the actual participants in. the Page 128 of 382
event and their alleged actions constituted the vital ingredients in the false statement. On account of the role they are alleged to have played in the false statement, a fullest possible identification of these persons was essential". Thus, a plea of guilty to a defective charge cannot stand.
G.
JOINDER OF COUNTS
The legislative cushion upon which several counts may be joined is section 135(1) of the Criminal Procedure Code. It is a provision that has received judicial interpretation in R -vs- Dalip Singh30. The appellant had been charged jointly with another with the theft of property belonging to the KenyaUganda Railway and convicted of conveying stolen property. In the second count, the appellant was charged alone and convicted of bribing a police officer in order to procure his release. It was adduced in evidence that the bribe had been given very shortly after the arrest of the two men. When the matter went on appeal, it was argued on behalf of the appellant that there had been a misjoinder of offences because theft and bribery were not offenses of a similar character. It was however held that although the two offences were different in character, they were founded on the same facts as the evidence clearly demonstrated that the bribe was offered, within in a very short time after the appellants had been arrested. This demonstrates that it is not necessary that the offences are of the same character and nature as a condition precedent to their inclusion in one charge under different counts. The above is true notwithstanding section 135(1) which provides that:
"Any offences, whether felonies or misdemeanours, may be charged `together in the same charge or information if the offences charged, are
30
(1943) 1 EACA121. Page 129 of 382
founded on the same facts, or form or are part of a series of offenses of the same or a similar character".
Other cases show that even if a defect is noted in the charge, the defect will not warrant the conviction to be quashed, unless and until the defect has occasioned a failure of justice31. The Kenyan, case of Kamwana s/o Mutia –vsR32 elaborates further. In this case, the question which arose was whether the trial would be a nullity where there was a joinder of counts for dissimilar offences in one charge sheet. The appellant appealed against conviction and sentence on three counts involving 'theft' 'breaking and entering premises' and 'therein stealing money', and on a fourth count for possession of 'bhang'. The fourth count of possessing 'bhang' was not treated as an issue at the trial, but when the appellant had been convicted on the other three counts, he asked that this offence should be taken into consideration whereupon the Magistrate purported to convict him of this offence also, and imposed for it a separate sentence. On appeal, the Supreme Court of Kenya held that the count charging the appellant with possession, of 'bhang' should not have been included in the same charge sheet with the three other dissimilar counts; but since no injustice resulted from the improper joinder, the trial of the other three should not be treated as a nullity. This shows that so long as the anomaly of misjoinder alleged does not occasion an injustice, courts are ready to disregard the impropriety of the technicalities and deal with 'substantial justice'. The above position prevails even in English courts which are not persuaded to quash a conviction unless the misjoinder has occasioned a failure of justice. The English decision in R –vs- Muir33 is in point. The appellant was convicted upon an indictment which charged four offences, two of rape of a young girl on two
31 32 33
Seidi -vs- R (1969) EA 280. (1958)EA471. (1938)2 ALL E.R 516. Page 130 of 382
different occasions, a third of stealing from the girl's father, and a fourth of indecent assault on a totally different person who was a married woman. He appealed on the ground that the two charges of rape and the one of indecent assault should not have been tried together. The court held that those two dissimilar offences should not have been charged together in one indictment. However, the court only ruled as to the desirability of the two dissimilar offences being tried (and charged) separately and upheld the conviction noting that the impropriety did not occasion a miscarriage of justice to the accused.
There are cases for which, it is desired that the counts be charged together. This was discussed at length in the case of Kamau s/o Muga –vs- R34. The applicant was convicted on three counts namely: causing death by dangerous driving, driving under the influence of alcohol and driving an unlicensed public vehicle. He appealed against the conviction and sentence on the first count. At the trial, evidence was adduced that there was a mechanical defect in the steering mechanism and that the appellant was under the influence of drink at the material time to such an extent as not to be capable of proper control. The crown invited the attention of the court to the case of R –vsMcbride35 and requested a direction in similar terms to that given by the Court of Criminal Appeal on the advisability of joining a count of driving when under the influence of drink with a count of causing death by dangerous driving. It was felt that generally an indictment containing a charge of causing death by dangerous driving should not include a charge of driving under the influence of alcohol but may properly be coupled with a charge of dangerous driving if the evidence regarding the influence of drink upon the driver is such as to justify it. Thus the dictum in R -vs- McBride (above) was approved. Therefore, a misjoinder of counts will not be occasioned where the 34 35
(1963)EA172, (1961)3W.L.R549. Page 131 of 382
offenses with which the accused person is charged are based on the same facts36.
H.
JOINDER OF PERSONS
Section 136 of the Criminal Procedure Code spells out the circumstances under which persons may be joined as co-accused persons. The said circumstances include the following:
(a)
Persons accused of the same offence committed in the course of the
same transaction; (b)
Persons accused of an offence and persons accused of abetment, or of an attempt to commit the offence.
(c)
Persons accused of having committed offenses created under the Penal Code or any other law committed by them jointly within a period of twelve months.
(d)
Persons accused of different offences committed in the course of the same transaction.
(e)
Persons accused of an offence under chapters XXVI to XXX of the Penal Code (both inclusive).
(f)
Persons accused of an offence relating to counterfeit coins under chapter XXXVI of the Penal Code.
For purposes of section 136(h), a person is said to have abetted and aided another if it can be demonstrated that they participated in the same transaction and that in the course of the said transaction he actively assisted in the continuance or completion of the offence that is called into question. However,
36
Kityo -vs- Uganda (1967) EA 23 Page 132 of 382
there is no clear definition of 'same transaction' and what is the same transaction will be subjectively judged from the peculiar circumstances of each case. The requirement that persons who are jointly charged must have participated in the course of the same transaction is important so far as that constitutes 'the same transaction'. The case of Nathani -vs- R37 is illustrative of the point. The facts of this case were that the appellant who was a proprietor of a travel agency, was charged together with a public officer, on a number of counts. The appellant was convicted on one count of wrongfully and corruptly giving money to a public officer. The Public Officer was convicted in the same trial for wrongfully receiving the said bribe. The appellant lodged an appeal. One of the grounds was that there had been a misjoinder of parties. The East African Court of Appeal held that there had been no such a misjoinder because the concatenation of events was uninterrupted and therefore the offences constituted the same transaction. In the case of Yokobo Uma and Another –vs- R38, the two appellants were charged and tried jointly. The offence against each was "doing an act intended to cause grievous harm". The first appellant alone was charged on the second count. The particulars of each alleged offence showed that the incident said to involve the first appellant had occurred on a different date at a different place and with a different weapon from the one said to involve the second appellant. The complainant was the same in each count. They appealed against the convictions. Sir Udo Udoma CJ ruled that the charge as laid was bad in law for misjoinder. The law relating to joinder of persons is that those who join in the commission of an offence, may be jointly indicted for it or each of them may be indicted separately. Thus if several people commit a robbery or murder, they 37 38
(1965) E.A 77. (1963) E A 542. Page 133 of 382
may be indicted for it jointly or severally. [And] although they have acted separately yet the essence of the law of joinder is that it gives the legal imprimatur allowing the charging of persons jointly or severally. However, where two persons are jointly charged with one offence, convictions cannot stand against both of them on evidence that an offence of that nature was committed by each of them independently. This is the jurisprudence from R -vsScaramanga39. Although misjoinder of parties is undesirable, it is a curable irregularity which does not render the trial a nullity. However, it is a reason which may sometimes justify the quashing of a conviction and invite an order of a trial de novo.
I. DUPLICITY It is a requirement of law and practice that a charge, should not suffer from duplicity; that is to say:
"No one count of the indictment should charge the prisoner with having committed two or more separate offences40".
This for our purposes will suffice as a definition for the term 'duplicity'. The same definition is also attributable to the English case of R -vs- Molley41. What is contemplated by the definition can be illustrated in the old English case R -vs- Devett42 where the charge read; "On diverse dates between January 1909 and October 4th 1910" and in another count; "On diverse dates between
39 40
41 42
(1963)2 All. E.R 582. Archbold J.F; Archbold: Pleadings, Evidence and Practice in Criminal cases, London, Sweet & Maxwell, 5th ed., 1962 at 53. (1921)2 KB 364, 8, C&P 639. Page 134 of 382
October 4th 1910, and the end of February 191343. Such a charge is defective in that there is a considerably long stretch of time between the counts. These are two offences which should receive separate treatment. But where the offences charged consist of one single act they may be made the subject of a single count. For instance, when the prisoner was charged in one count with uttering a number of forged receipts, and it was proved that all the forged receipts were uttered at one and the same time, in one bundle, the count was held good and not bad for duplicity. This was the case of The King -vs- Thomas44. Likewise, a man may be indicted for battery of two or more persons in the same count where the battery is one transaction, or for a libel upon two or more persons when the publication is one (single) act, without rendering the count bad for duplicity. This was stated in the case of R -vs- Benfield45. What the above judicial authorities indicate is that a count charging a person with one endeavour to procure the commission of two offences is not bad for duplicity because the endeavour is the offence charged. This is in fact given judicial restatement in the case of R –vs- Fuller46, which case re-stated the above position. A charge may be duplex but if the duplicity does not occasion a failure of justice, the conviction, therefrom must stand. A case in point is R -vsThompson47. This case involved duplicity in the charge, which charge was formulated to the effect that:
"On diverse days between the month of January 1909 and October 1910", and an other count "on diverse days between October 4th, 1910 and the end of February 1913..."
43 44 45 46 47
R -vs- Thompson (1914) 2 K B 99. R -vs- Thomas 2, East P.C 934. 2, Burr. 980, 983. IB & PP 180. (1914) 2 KB 99. Page 135 of 382
Objection was taken that the charge (indictment) was bad for duplicity. The objection, being overruled by the lower court became the subject matter of the appeal from the conviction. It was held that the indictment was bad in that it charged more than one offence in each count; but that as the prisoner had not in fact been prejudiced in his defence by the presentation of the indictment in that form, there had been no miscarriage of justice and the appeal dismissed. This conforms to section 382 of the Criminal Procedure Code which provides that unless the form of charge and the defects therein cause a failure of or miscarriage of justice, a conviction will not be quashed or a trial rendered a nullity only on account of such an anomaly.
Duplicity occurs even where the charges are framed in the alternative. In Adam Mwandalafu –vs- R48 the appellant was charged on alternative counts with arson and attempted murder. The particulars of the charge of arson stated that the appellant set fire to two houses, one of K and the other of N. The house of N was more than hundred yards from K's house. The particulars of the charge of attempted murder stated that the appellant attempted to cause death of K and his wife by setting on fire two houses; one of K and the other of N. After the assessors had given their opinions and before judgment was delivered the trial judge noticed that both the counts were bad for duplicity, but considered that it was too late for the irregularities to be cured by amendment. The judge purported to invoke section 346 of the Tanzanian Criminal Procedure Code in relation to the first count of arson and held that the first count, although bad for duplicity, had occasioned no failure of justice. As regards the duplicity in the second count, in referring to setting on fire or more than one house the judge, disregarded the reference to the burning of NTs house. The appellant was
48
(1966)EA459, Page 136 of 382
convicted on both counts notwithstanding that the two counts were stated in the information to be in the alternative and was sentenced to concurrent terms of three and six years' imprisonment. On appeal, the Court of Appeal for East Africa held inter-alia that:
i)
the appellant could and should have been charged with two offences arising out of the two acts of arson, but charging of these two offences as one had not occasioned a failure of justice. The irregularity was curable by the court under sect-ion 346 of the Tanzanian Criminal Procedure Code, that:
"No finding sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the complaint, summons, warrant, charge… or other proceedings before or during the trial in any inquiry or other proceedings under this code unless such error, omission or irregularity has in fact occasioned a failure of justice." (ii)
the alleged attempted murder on two occasions of K and his wife, first by burning K's house and then by burning N's house when K and his wife took refuge there after K's house had been destroyed, should have been the subject of two separate counts and each count should have charged the attempted murder of either K or his wife and not both together;
(iii)
the duplicity in the second count and the judge's disregarding of the reference to the burning of N's house were irregularities curable under section 346 afore-noted;
(iv)
that the proper course where there are alternative counts is to convict and sentence on one hand and to make no finding on the other;
(v)
that the charges of arson and attempted murder are not cognate offences Page 137 of 382
such as could properly be charged in the alternative.
There are, however, other cases which may be charged together in one count without rendering the charge duplex. In Mwangi -vs- R49 the appellant was found in possession of a revolver and eight rounds of ammunition which had been stolen thirteen months earlier at a time when he was in prison. He was convicted on a single charge of being in possession of the revolver and the ammunition without a firearms certificate and of receiving the revolver knowing it to have been stolen. On appeal it was contended that the first charge was duplex in that the firearm and the ammunition should have been charged separately. Bennett -J- held that the firearm and the ammunition may be charged in one count.
The question of duplicity also received judicial consideration in the case of Saina -VS- R50. The appellant was charged on a single count with the offence of house-breaking, theft and handling stolen property. The Magistrate found he had committed all the offences and sentenced him for handling. On appeal, Sir James Wicks CJ and Trevelyan -J- held that each offence must be set out in a different count and that failure to do so is an incurable illegality. The court followed the earlier decision of Cherebe Gukuli –vs- R.51 The reasoning behind this was that had the charge sheet been given proper consideration, it would have been seen that the first count charged not the permitted one offence, but three i.e shop breaking contrary to section 306(a) of the Penal Code, theft under section 275, and handling against section 322(2). This created confusion, and a number of errors were made. The court re-stated section 135(2) of the Criminal
49 50 51
(1974)EA108. (1974)EA83. (1955)22 E.A.CA 478. Page 138 of 382
Procedure Code that where more than one offence is charged in a charge or information, a description of each offence shall be set out in a separate paragraph of that charge or information, called a count. The court approved R vs- Boyle52, which was mainly concerned with the procedure to be adopted where several offences appear in the same charge or indictment, the court, dealing with the charging of alternative counts said:
"For instance, where there are counts of stealing and receiving, it is proper that the two counts should be put separately..."
It is this dictum which Sir Wicks CJ and Trevelyan J followed. The courts in this country have followed the above and to quote Trevelyan J;
"So it is the proper procedure in this country. It is, of course, in order to charge theft and handling in one charge or information; Rita –vs- R53, but it must be done in separate counts.”54
It is, therefore, a settled law that a count which charges two offences is bad for duplicity, and that a conviction based on it cannot stand. However, if the form of preferring the charge is permitted by statute it cannot be said to be bad for duplicity even if it charges two or more offences.55
J. ALTERNATIVE CHARGES As discussed above, the rule relating to duplicity prohibits a situation 52 53 54 55
(1954)2ALLER721. Section 137(a) (v) Criminal Procedure Code Cap 75. E.A.C.A Cr. App, No.66 of 1972 (Unreported). (1974) EA 83, at 84 para. D. Page 139 of 382
where two substantive offences are charged under the same count and ordinarily even in cases where one charge has several counts to it, it is a mandatory requirement of the law that the counts should be set out separately and the two should be numbered consecutively56. However, sometimes a single charge may contain charges which are alternative to each other. Alternative charges are normally justified in circumstances where the factors attending the offence in question are not very clearly focused with the consequence that it is not easy to discern which offence was actually committed. A good example is where a person is thought to have stolen property contrary to section 275 of the Penal Code yet the prosecution is not certain that the accused actually stole. An alternative charge of handling suspected stolen property contrary to section 322 of the Penal Code maybe preferred against the accused person. In such a case where an accused is charged with alternative charges, the prosecution has a widened scope of adducing evidence in support of either of the charges. However, this must not be seen as an indiscriminate exercise where the prosecution may arraign any person before the court without any proper reason. It should be understood in context as a benign provision for enabling the prosecution to proceed where there are actual uncertainties.
K.
AMENDMENT OF CHARGES
The Criminal Procedure Code spells out the instances and situations when a charge or an information may be amended. Section 214 (1) provides that where at any stage of a trial before the close of the prosecution case it appears to the
56
See also the case of Kababi -vs- R (1980) KLR 95 (HCK). In this case the appellant was charged in one single charge with causing death of three persons by dangerous driving and no objection was raised on the form of the charge. On appeal it was held that the failure to file three separate counts did not occassion any failure of justice. However, the apparent conflict in a number of decisions should not blur the law. The true test should be whether injustice and prejudice has been occassioned by duplicity. If not, substance should not suffer at the altar of form. Page 140 of 382
court that the charge is defective either in form or substance, the court may order for its amendment to bring it in line with the required style. Once the charge has been amended an accused person should be called upon to plead to the amended charge. However, a simple variance between the charge and the evidence adduced in support of it with respect to the time of which the alleged offence was committed is not material and the charge need not be amended for the variance if it is proved that the proceedings were in fact instituted within the time (if any) limited by law for the institution thereof57. For the amendment of an information, section 275(1) requires that every objection to an information for a formal defect on the face thereof shall be taken immediately after the information has been read over to the accused person and not later. When an information is amended a note of the order for the amendment shall be endorsed on the information and the information shall be treated for all purposes of all proceedings in connection therewith as having been filed in the amended form58. On the question of amendment, it has been observed that the court has wide discretion and may amend the charge even after the close of the prosecution case. This was judicially recognized in the case of Maulidi Abdalla Change –vs- R59. In this case, a charge was amended at the close of the case for the defence with the result that a new charge with a heavier penalty was introduced. Sir Ralph Windham stated, inter-alia, that a charge can be substituted even alter the close of defence, but the substituted charge can only be allowed if it will not occasion injustice to the accused person. This decision explains the position in Kenya, notwithstanding the fact that it emanated from Tanzania. This position had been recognized even earlier in the case of Benjamin
57 58 59
Section 137(a) (v) Criminal Procedure Code (Cap 75). Section 275(3) Criminal Procedure Code (Cap 75). (1964) EA 122. Page 141 of 382
Sauzier -vs- R60 where the appellant appealed against his conviction of attempted arson. The appeal was dismissed but the appellate court commented on the aspect of amending the charge after the close of the case for the prosecution. It was noted that at the close of the case for the prosecution, the evidence having disclosed an attempt of arson only the trial judge upheld a submission of no case to answer, but having regard to the provisions of the Criminal Procedure Code, ordered that the charge be amended to 'attempted arson' and took the appellant's plea on the amended charge. The court held inter-alia that it is not necessary to amend a charge of committing a full offence in order to convict an accused of an attempt. The court had no indication that it cannot exercise its jurisdiction to amend charges and amend after the close of the case for the prosecution.
L. AMENDMENT AFTER CONVICTION
A further question that warrants deeper consideration is whether a court that has convicted has jurisdiction to amend the charge after the conviction. This was considered in the case of Yusuf Maumb -vs- R61. In this case, the trial Magistrate had convicted the appellant and then amended the charge and sentenced the appellant. On appeal, it was held inter-alia that the Magistrate had no power to amend the charge after conviction as he was functus officio. This was also recognised in the English case of R –vs- Guest62.
M.
QUASHING OF INFORMATION
It was the rule of common law that if an indictment or inquisition was
60 61 62
(1962)E.A. 50. (1966)EA167. (1964)3 All. E.R385. Page 142 of 382
bad on the face of it, or if there was any such insufficiency either in the caption or in the body of an indictment as would make erroneous any judgment whatsoever given or any part thereof, the court might in its discretion quash the indictment63. For instance a number of persons may not be indicted jointly for an offence which must be several. Thus in R –vs- Tucker64 an indictment against six persons for unlawfully exercising a trade was quashed because it was a distinct offence in each case and could not be made the subject of a joint prosecution.. In R -vs Phillips65, judgment was arrested on an indictment of six persons for perjury (to which four pleaded and were convicted) on the ground that the offence was in its nature several and two people could not be indicted together for it. In several instances, indictments have been quashed because the facts stated in them did not amount to an offence punishable by law. Thus an indictment for libel was quashed the expression used in the alleged libel not being prima facie libelous, and the indictment containing no averments or innuendos showing that those expressions were intended to impute improper conduct to the prosecutor. This was in the English case of R –vs- Yates66. It has however been stated in R -vs- The Chairman of London Sessions ex Parte Downes67 that a court is not entitled to quash an- indictment because an examination of the dispositions has led it to the conclusion that the prosecution would not succeed on any account. In Kenya, section 276 of the Criminal Procedure Code provides for quashing of an information. It is provided, that if an information does not state, and cannot by amendment authorized by section 275 be made to state an offence of which the accused has had notice, it shall be quashed either on a
63
64 65 66 67
See Archbold J.F: Archbold: Evidence, Pleadings & Criminal Practice, London, Sweet & Maxwell, 5th ed. 1962, at 88 4 Burr 2046 2 str 921 (1920)15 Cr. App. Rep. 15 at 1 b (1954)IQB I Page 143 of 382
motion made before the accused pleads or on a motion made in arrest of judgment. In the event that section 276 (above) is invoked, a written statement of every such motion shall be delivered to the Registrar or other officer of the court by or on behalf of the accused and shall be entered upon the record.68
N.
CONCLUSION
It is of utmost importance that the person drawing up the charge must be conversant with the issue. An example is when a person enters a house with intent to commit a felony contrary to section 304 of the Penal Code. The drawer must be informed that if the accused entered the house during the day, the proper offence which should charged is house breaking. If on the other hand, the purported felon entered the house during the night, the proper offence to charge is that of burglary.69 Therefore, the law relating to charges should not be looked at solely from the Criminal Procedure Code but a perusal of the Penal Code or such other statute which creates offence is imperative. Such diligence will ensure that charges are properly framed and this will enhance the speed with which trials are conducted. The Constitution, in its spirit of ensuring justice and fairplay for all requires that all criminal trials be dealt with expeditiously. Further, if the charge as framed does not clearly state the offence charged the accused person cannot be said to have had adequate opportunities to prepare his defence. The Constitution requires that the offence be made well known to the accused. If this is not done, then the Constitution has been contravened as this will occasion an injustice. The upshot of this is that if a charge is defective, and the defect is of such a magnitude as to occasion a failure of justice, it is
68 69
See section 276(2) Criminal Procedure Code (Cap 75). See section 304(2) Cap 63 Penal Code. Page 144 of 382
unconstitutional and therefore even a plea of guilty to it cannot stand70.
70
Christopher Omufira Akwabi -vs- R, Cr. App. No. 131 of 1989. Page 145 of 382
CHAPTER SEVEN PLEAS A. INTRODUCTION Plea taking marks the commencement of the trial process in a criminal court. After a decision has been taken to prosecute an accused person he/she is brought before a court of law to plead to the charge(s) laid against him. Under Kenyan law offences may be divided into three distinct categories for the purpose of plea taking or commencement of trial namely; offences which require no consent71, offences which require the Attorney General's consent before plea taking72 and offences which require leave of Attorney General before institution of prosecution73. Whenever the law prescribes that the consent of the Attorney General must precede the plea, if this requirement is disregarded any plea taken in disobedience is null and void as was judicially recognised in the Tanzanian case of R v Telenge74 which is in pari materia. This chapter deals with this important stage in the process of criminal trials.
B. PLEA TAKING IN SUBORDINATE COURTS
The procedure and the manner in which pleas are taken is dictated by the Criminal Procedure Code as intepreted through case law over the years.
71 72
73
74
These cover most offences triable by magistrates courts. These include offences such as incest by males arid incest by females contrary to sections 166 and 167 respectively o'l the Penal Code cap. 63 of the Laws of Kenya. These cover offences by Foreigners within Territorial waters pursuant to section 143 of the Criminal Procedure Code Cap 75 of the Laws of Kenya. [1967] EA 407 (HCT). Page 146 of 382
C.
RECORDING OF PLEAS When an accused person appears for trial, the charge must be read and if
need be explained to him in the language that he understands well. Or the charge may be interpreted by the Court interpreter, after which the accused will be required to plead instantly thereto unless the law stipulates otherwise. When the services of an interpreter are employed, this should be reflected in the proceedings. In the East African Court of Appeal, decision of Desai v Republic75, it was held among other things, that wherever interpretation was required the facts should be recorded together with the name of the interpreter and the languages used. The same work, in Hando son of Alwnaay –vs- R76 ruled that:
"As has been said before by this court, before convicting on any such plea, it is highly desirable not only that every constituent of the charge should be explained to the accused, but that he should be required to admit or deny every such constituent".
Where an accused intends to plead guilty or the court thinks he is pleading guilty, problems arise which may affect the administration of justice if the court is not scrupulous enough in recording the plea. In the first instance an incorrect plea of guilty could mean injustice to the accused person himself. On the other hand, a criminal, who should be serving his term of imprisonment after a conviction on his own admission for his part in the crime, may be set at large by the appellate court on the ground that the trial court convicted on a plea which was improperly recorded. The Court of Appeal then clearly set out the procedure in recording pleas: 75 76
[1971] EA 416 (From HCT) [1951] E.A.C.A 307 Page 147 of 382
"When a person is charged with an offence, the charge and the particulars thereof should be read out to him so far as possible in his own language, but if that is not possible, then in a language which he can speak and understand. Thereafter the court should explain to him the essential ingredients of the charge and he should be asked if he admits them. If he does them, his answer should be recorded as nearly as possible in his own words and then a plea of guilty formally entered. The prosecutor should then be asked to state the facts of the case and the accused be given an opportunity to dispute or explain the facts or to add any relevant facts he may wish the court to know. If the accused does not agree with these facts as stated by the prosecutor or introduces additional facts, which if true might raise a question as to his guilt, a change of plea to one of not guilty should be recorded and the trial should proceed. If the accused does not dispute the alleged facts in any material respect, a conviction should be recorded and further facts relating to the question of sentence should be given before sentence is passed".
Where there is more than one accused jointly charged, the plea of each should be recorded separately. And if a charge or indictment contains several counts the accused must be asked to plead to them separately. Just as there must be a separate sentence for each count on which a conviction is recorded, an "omnibus" plea of guilty is unlawful. To obviate this the East African Court of Appeal set out the proper procedure to be followed in the case of Adan v Republic77 as follows:
77
[1970]EA24. Page 148 of 382
(i)
That the charge and the particulars of the offence should be explained to the accused, in the language that he/she understands.
(ii)
That the plea should as far as possible be recorded in the words of the accused.
(iii)
That in the event of a plea of guilty the fact should be stated to the accused, and he/she should be granted an opportunity to respond.
(iv)
That if an accused disputes the facts of the charge a plea of 'Not guilty’ must be entered.
(v)
Where there is more than one accused jointly charged, the plea of each should be recorded separately. And if a charge or indictment contains several counts the accused must be asked to plead to them separately.
(vi)
In the event that an accused does not change his/her plea, a plea of guilty should be entered and a conviction recorded and after mitigation and facts relevant to sentence are taken the sentence can be meted out.
Whenever a plea of guilty is to be entered, great caution, must be exercised because as the court said in the case of Byarutu Gata v R78, the word 'guilty' is one to be treated with the greatest caution. It is a technical expression. The justification for this caution was captured in the case of M'Mwenda v R79 where the court said inter alia that there is no word exactly corresponding to it in any of the languages of Uganda and Kenya.
D. PLEA OF AUTREFOIS ACQUIT, AUTREFOIS CONVICT, AND PARDON
The Criminal Procedure Code provides at section 219 that an accused 78 79
[1950] 17 E.A.C.A 125. [1957]E.A. 429. Page 149 of 382
person may plead that he has previously been convicted or acquitted of the same offence or that he has obtained the President's pardon for the offence. The words 'autrefois acquit' and 'autrefois convict' may not be specifically mentioned in the body of the Criminal Procedure Code but the principle of law is the same, that is, a person should not twice be put in jeopardy for the same offence; hence the use of the words in the head note. The principle of law is that on a plea of 'autrefois acquit' or 'convict', the test is not whether the facts relied upon are the same at the two trials, but whether the acquittal or conviction on the previous charge involved an acquittal or conviction on the subsequent charge. This rule of 'autrefois convict' or 'acquit' applies not only to the offence actually charged in the first charge or indictment, but also to any offence of which the accused could have been acquitted or convicted. When an accused person pleads that he has obtained a pardon, should the plea be successful after a trial, then the accused is not acquitted but discharged. The same for an accused who pleads 'autrefois acquit'. Such a discharge 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.
E. CHANGE OF PLEA AND THE FUNCTUS OFFICIO RULE There are times when in the middle of a trial an accused might wish to change his plea from one of 'not guilty' to that of 'guilty'. It is not sufficient for the court only to make note of the accused's decision to change his plea. Just as there can be a change from a plea of "not guilty" to one of "guilty", there is nothing in law which, forbids the withdrawal of a plea of guilty by an accused person. But this should be allowed only in very clear cases, where, for example, the accused may have misunderstood the charge.
Page 150 of 382
In Kamundi v R80, the court said, there are no provisions providing for a plea to be changed, but there are equally no provisions to present a plea being changed before the court becomes "functus officio". The court then held that “a Magistrate had judicial discretion to allow a change of plea before passing sentence or making some order finally disposing of the case and in this case his discretion had not been judicially exercised". In the earlier case of Maumba v R81 the Court of Appeal also stated the Magistrate's powers to allow amendment exists only during trial, before conviction and before the court becomes 'functus officio'. In England the Queen's Bench Division in R v Guest exp. Anthony82 held that where an unequivocal plea of guilty had been accepted by a Magistrate's court. The court was 'functus officio' with regard to the conviction or acquittal, and neither 'mandamus' nor 'certiorari' should issue with a view to further proceedings inconsistent with that plea being taken. The House of Lords later overruled the R v Guest case in S (an infant) v Manchester City Recorder and others83 in which the House of Lords held that a court of summary jurisdiction which had accepted a plea of guilty to an offence is not in law debarred from permitting at any time before a sentence a plea of not guilty to be substituted. This was the decision, which was followed by the Court of Appeal for East Africa in Kamundi’s Case. Therefore the "functus officio" rule in East Africa and particularly in Kenya can be stated thus; when a court has determined a case by passing sentence, it is "functus officio" and has no power to re-open the case either of its own motion or on the application of the prosecution or of the defence.
80 81 82 83
[1973] EA 540. [1966] EA 167. |964]3 ALLER 385. [1969) 3 All CR 1230. Page 151 of 382
F.
PLEA BARGAINING Plea bargaining is not practised in the Kenyan Legal System as it would
be deemed to negate a free and voluntary plea84. The attitude of Kenyan courts regarding the role of Advocates on matters of sentence has been consistent that advocates have no say in matters of sentence which are peculiarly within the province of the trial court85 and that the prosecution have no business in passing judgment on the gravity of an offence86. Although it is not unusual to have accused persons plead guilty to lesser offences, for example in cases of murder to manslaughter this even if done through the subtle machinations of counsels for the prosecution and defence should not be confused for plea bargaining as practised in the United States of America87.
84
85 86 87
See the case of Sabur v R (1958)EA 126 (HC4) which although a colonial case represents contemporary Kenyan criminal Jurisprundence. Wanjema v R [1971 ] EA 493 Shiani v R (1972) E.A.557 (HCK) W.P. Mclauchlan, American Legal Processes ([New York]: John Wiley & Sons 1977),PP. 125126 Page 152 of 382
CHAPTER EIGHT
TRIAL PROCEDURE IN THE SUBORDINATE COURTS
A. INTRODUCTION The courts subordinate to the High Court and Courts-martial are established by section 65 (1) of the Constitution and have such jurisdiction and powers as may be conferred on them by any other law. Section 65(2) of the Constitution gives the High Court jurisdiction to supervise criminal proceedings before a subordinate court or court-martial for the purpose of ensuring that justice is duly administered by those courts. Section 67 of the Constitution provides that the subordinate court make references to the High Court in matters relating to constitutional interpretation involving substantial questions of law. The Constitution also provides for the establishment of a Chief Kadhi and such number, not being less than three, of other Kadhi's as may be prescribed by or under an Act of Parliament. The subordinate courts to the High court are divided into: The Chief Magistrate's Court The Principal Magistrate's Court The Resident Magistrate's Court The District Magistrate's Court. These are distributed countrywide in each of the provinces and districts. They are presided over by Magistrates or persons qualified to hold such office appointed by the Judicial Service Commission of Kenya.
B.
THE STRUCTURE AND JURISDICTION OF THE CRIMINAL COURTS
Kenya has a court structure which operates at different levels. The court at each level has power to deal with certain cases which is described as jurisdiction. Page 153 of 382
Jurisdiction, can be limited to a prescribed area or subject matter. The District Magistrate class two only has original jurisdiction. The District Magistrate's court is established by the Magistrate's Court Act (Cap 10). They exercise jurisdiction throughout the district in respect of which they are established. A person convicted on a plea of guilty has no right of appeal except as to the extent or legality of his sentence. Appeals from the first class District Magistrate's court lies in the High Court. The Attorney-General may appeal to the High Court against an acquittal on a matter of law from a subordinate court. The Resident Magistrate's court is also established by section 3 of Magistrate's Court Act. Persons appointed must be advocates of High Court of Kenya or hold an equivalent qualification for example State Counsel and have two years experience. The Chief Magistrate's court's jurisdiction is wide and embraces most crimes. But they have a limited appellate jurisdiction. There is also a further right of appeal to the High Court.
C. TRIAL PROCEDURES (i) The Prosecution Case A criminal trial commences when an accused is called to take his place in the dock. Then the charge is read and explained to him and asked if he understands it. He is asked whether he pleads guilty or not. Section 207 of the Criminal Procedure Code States that if an accused admits the truth of the charge, his admission shall be recorded as nearly as possible in the words used by him and the court shall convict him and pass sentence upon or make an order against him, unless there appears to it sufficient cause to the contrary. An accused should plead by his own mouth and not through his counsel Page 154 of 382
or pleader88. Any admission made by his pleader is not binding on him, However, different considerations arise where the personal attendance of the accused has been dispensed and he is permitted to appear by pleader. Where the plea of guilty is recorded without explaining the offence alleged, the conviction based on such a plea will not be sustained and must be set aside. A person accused of an offence may of right be defended by an advocate. It is the responsibility of the accused to ensure that his advocate is present. The Magistrate should also ensure that the accused has had opportunity to access/seek the services of an advocate before hearing89. The accused must be present throughout the- trial. In the case of Afumu & Another –vs-R90, the accused, a driver and owner of African Omnibus was jointly tried and convicted of assault causing actual bodily harm contrary to section 246 of the Penal Code. When the principal witness of the prosecution, was about to give evidence, the second accused was absent. His advocate asked for adjournment which was refused. The witness gave evidence in absence of 2nd accused but in the presence of his advocate.
After conviction, the
Magistrate elected to give his experience in the district of misconduct of African Omnibus owners which he used as a ground for imposing an enhanced sentence on the accused. The accused appealed. On appeal it was held inter alia, that the trial was illegal. In certain circumstances the Magistrate may dispense with the presence of the accused during trial91. Non-appearance, will not hinder the court from proceeding with hearing. But the Magistrate has no power to do this in the case of a felony in which case the accused must be present throughout. In
88 89 90 91
It is to be assumed that the term 'word of mouth' includes sign language where applicable. Section 194 Criminal Procedure Code (Cap 75). (1953)26 KLR 87. Section 99 Criminal Procedure Code (Cap 75). Page 155 of 382
Narrothandas Vithlam –vs- R92, the appellant was convicted of fraudulent accounting (felony). He had been absent at the opening of his trial due to sickness but his advocate agreed that the trial should proceed in his absence. On appeal, the High Court quashed the conviction and ordered, a new trial before another Magistrate. A Magistrate must record evidence himself in good legible handwriting in narrative form.93 For instance, "Do you remember what happened on the night in question?” "Yes I remember I was on night duty when thieves came and attacked the house I was guarding". Evidence taken before another Magistrate in one criminal trial cannot be treated as evidence in similar criminal cases before the same Magistrate involving the same accused. The only legitimate object of the prosecution is to secure not a conviction but to see that justice is done. When a plea of not guilty is entered, the prosecution opens the case, gives a brief outline of the prosecution's case indicating who it intends to call as witness. The prosecutor is entitled to address the court94. The prosecution's speech is not evidence and the Magistrate comments nothing unless it raises a point of law or procedure. The witnesses are numbered as Prosecution Witness (PW1) one and must give evidence on oath. A trial Magistrate must make it clear that the accused will be given opportunity to cross-examine. The prosecution should lay before court all material evidence available to it for unfolding its case95. If a prosecution gives up a material eyewitness on the ground of close relationship, his non-examination cannot be said to destroy the fabric of the prosecution case which is proved by the evidence of
92 93 94 95
(1957) EA. 343. Section 197 Criminal Procedure Code (Cap 75). Section 213 Criminal Procedure Code (Cap 75). See R v Daniel Ole Osoi, Cri. Case No. 2.422 of 1996 Where the Magistrate ruled that the prosecution was enjoined under section 77(e) of the Constitution to provide the defence with a list of its witnesses and their statements. The Attorney-General has since appealed against the ruling. Page 156 of 382
other eye-witnesses and corroborated by other evidence. When a witness is declared hostile by the prosecution, part of his evidence which is in conformity with the other evidence could be relied upon. After the testimony and examination of all prosecution witnesses, the prosecutor will inform the court that his case is closed.
(ii) Prima Facie Case After the close of the prosecution's case the court is enjoined to determine whether the prosecution has established 'a prima facie' case against an accused person before it can place him/her on his/her defence. The criminal procedure code does not define what constitutes 'a prima facie' case but the defunct Court of Appeal for East Africa defined a 'prima facie' case in the often quoted case of Ramanlal Bhatt v R96 as...
"...one which a reasonable tribunal properly directing its mind to the Law and the evidence would convict if no explanation is offered by the defence".
If a finding is made that the prosecution has not established a prima facie case then the accused will be acquitted. Conversely, if the court finds that a prima facie case has been established then the court will explain to the accused his/her rights to remain silent, give an unsworn statement or to render a sworn statement. If the accused is not acquitted the Magistrate calls upon him to enter on his defence. It is an essential part of a criminal trial. An omission to do so occasions failure of justice and is not curable. The Magistrate explains the charge and the difference between sworn and unsworn statement in accordance
96
(1957)EA332 (C.A) Page 157 of 382
with the requirements of section 211 of the Criminal Procedure Code.
(iii)
The Defence Case The accused shall call his witnesses referred to as Defence Witnesses
(DW) in any order he wants. He has a right to address the court at the commencement and in conclusion of his case. The prosecution shall reply after the accused has addressed the court in conclusion. The accused may apply for issue of process to compel attendance of witnesses or production of documents or thing and unless the Magistrate considers the application vexatious or made for the purpose of delay or defeating the ends of justice, shall issue such process. The Magistrate should record his reasons for refusal. Majority of Criminal cases in Kenya are defended by the accused without the assistance of an advocate. The procedure in conducting a defence is for the accused to give his evidence first. This was the holding in R v Malakwen arap Mutei97. It is a mistake in procedure to allow the accused to give his evidence after he has called witnesses for the reason that as an accused he is present in court during the whole of the hearing and should he not give his evidence first he will have the advantage of listening to his own witnesses give evidence. The court may, before or during the hearing of a case, adjourn the hearing to a certain time and place to be appointed and stated in the presence and hearing of the parties or their respective advocates then present98.
D.
SUBMISSIONS After the prosecution and the defence have closed their cases the law
permits them to make a final address through submissions99. Ordinarily, the accused or his counsel has the right to begin, but the right of the
97 98 99
(1949) 22-23 KLR 132. Section 205 Criminal Procedure Code. Section 310 of the Criminal Procedure Code. Page 158 of 382
prosecution to reply is delimited by the law100. If the accused has adduced evidence, the prosecution has an automatic right of reply but where only the accused person testifies the right of reply by the prosecution is only exercisable if the Attorney-General or the Solicitor General appear in person. It is noteworthy that in the case of R –vs- George Ochieng Omodho101 the court allowed a Principal State Counsel to address the court after the accused had given an unsworn statement in his defence and called no witnesses. Although this was permitted the correct legal position is that unless the statute is amended the decision in the Omodho case must be treated as anomalous.
100
101
Section 161 of the Criminal Procedure code see also the case of Joseph Mbebi s/o Mali and others versus R 1957 EA 426 (SCK). Criminal case No. 9 of 1989 High Court of Kenya Kisumu (unreported). Page 159 of 382
CHAPTER NINE
TRANSFER OF CASES
A. INTRODUCTION The provisions for transfer of criminal cases from one court to another are based more on the principle of meeting the ends of justice and securing public confidence on the independence and integrity of the court than imposing a check, and balance on the presiding officers. To do the latter would be to impute lack of fairness and impartiality on the part of the bench. Transfer of criminal cases is provided for in sections 78, 79, 80 and 81 of the Criminal Procedure Code1. The raison d’eitre of this provision is to allay any fears on. the part of the litigants that justice will not be done if the proceedings are allowed to commence or to go on before a particular Magistrate. The burden is on the applicants to show that circumstances exist that make him apprehend that he will not get a fair and impartial trial. The duty cast on the court is to decide whether or not there is an apprehension not founded on surmises and/or unproved allegations. The test to be used in determining the apprehension is that of reasonableness. The court is under an obligation to grant an application for transfer if it is of the opinion that certain circumstances which are, or tend to have a nexus with the case or the parties thereto are such that they have the effect of creating what E. Trevelyan, J 2 called
"reasonable apprehension in the applicants or any right
1 2
Cap.75 of the Laws of Kenya Criminal Procedure Code. John Brown Shilenje vs R - Cr. Appl. 180 of 1980. Page 160 of 382
thinking persons mind that a fair and impartial trial might not be had before the Magistrate."
B. FACTORS GIVING RISE TO A TRANSFER
Several factors may justify transfer of a case(s) from one court to another, these are;(i)
Where the trial, court has no jurisdiction in relation to the power of High Court;
(ii)
Where a fair and impartial trial cannot be had in any criminal court subordinate thereto;
iii)
Where some question of law of unusual difficulty is likely to arise;
(iv)
Where it will tend to be convenient to the parties or witnesses in the course of the trial; and
(v)
Where it appears that an order for transfer is expedient for the ends of justice or is required by any provision of this code,
Governed by the grounds set at above the High Court may order the transfer of a case from one court to another. Under section 78(1) the Criminal Procedure Code subordinate courts are also empowered to transfer cases. Section 78(1) provides inter alia
"If upon the hearing of a complaint it appears that the cause of complaint arose outside the limits of the jurisdiction of the court before which the complainant has been brought, the court may, on being' satisfied that it has no jurisdiction, direct the case to' be transferred to the court having' jurisdiction, where the cause of complaint arose."
Page 161 of 382
The power of subordinate courts to transfer cases is further reinforced, by section 79 which provides as follows as regards inter Magistrate transfer of cases;
"A Magistrate holding a subordinate court of the first class (a)
may transfer a case of which he has taken cognizance for committal proceedings or trial to any Magistrate, holding a subordinate court empowered to hold committal proceedings in respect of or try that case within the local limits of the first class subordinate courts jurisdiction; and
(b)
may direct or empower a Magistrate holding a subordinate court of the second or third class who has taken cognisance of a case, and whether evidence has been taken in that case or not to transfer it for committal proceedings or trial to himself or to any other specified Magistrate within the local limits of his jurisdiction who is competent to try the accused or commit him for trial, and that Magistrate shall dispose of the case accordingly.
The provisions of section 79 serve to reinforce the magisterial power of transfer. When the High Court is exercising its power of transfer it will act on a report of the lower court or on the application of a party interested or on its own motion3. Before effecting a transfer the High court is enjoined to consider the following factors:
3
Section 81(2), Criminal Procedure Code (Cap 75). Page 162 of 382
a) Jurisdiction
The High Court can make an order of transfer of a case if it is of the opinion that another court, subordinate to it and which is not having conduct of the trial, is better placed to deal with it. This may arise from the fact that cause of action, arose, and/or the collection of evidence will be made easy within the jurisdiction of that other court. A trial erroneously commenced in a court without territorial jurisdiction, will most certainly be transferred to another court of competent jurisdiction. A Magistrate's Court will entertain an application to determine its jurisdiction on being moved by one of the parties to the suit or on its own motion 4. It has to be established that the court to which case is being transferred has jurisdiction to try and determine the same.
b) Fair Trial The fairness of a trial is at the heart of every criminal justice system ipso facto it behoves the High Court to ensure that every trial is fair. Therefore, where it is established that the trial Magistrate has an interest in a case, pecuniary or otherwise, such situations and factors must give rise to a reasonable apprehension, on the part of a party to a case that justice will not be done and justify transfer. The applicant and/or complainant must show circumstances from which it can be inferred that he/she entertains an apprehension and that it is reasonable in the circumstances alleged. In John Brown Shilenje -vs- R5 the High Court held that a mere allegation of apprehension does not suffice; the court has to see whether the apprehension is based on reasonable grounds. Put another way, the apprehension must be real, honestly held and reasonably based. 4 5
Section 78, Criminal Procedure Code (Cap 75). Supra note 2. Page 163 of 382
(c) Question of Law Transfers under this heading normally take place from a subordinate court to the High Court, or from one subordinate court of superior jurisdiction 6. The object is to determine issues of law arising in the course of the trial at the earliest opportune moment and by judicial officers competent to determine them is not another way of appealing against a decision of court finally disposing of a criminal matter but a method by which a Magistrate's Court or the High Court, as the case may be, can authoritatively determine a point of law arising during the trial without jurisdictional handicap.
(d)
Convenience to Parties or Witnesses Transfer under this part is founded on the basis of expediting the court
process for a quick and fair determination of a case. The High Court in Kenya Matches Ltd –vs- R7, relied on this view when it transferred the trial from Kericho to Kisumu. It relied on the ground that the witnesses were in Kisumu, and accordingly granted it.
(e)
Expediency When expediency justifies then under section 81(I)(e) the High Court
may of its own motion order the transfer of case.
C.
EFFECT OF TRANSFER When an order of transfer is made, it is incumbent upon the court from
which the transfer is sought to stay proceedings. If the transfer Ls granted, the court to which the transfer is made is free to continue with the trial from where it was stayed. Otherwise it may start to hear the evidence afresh. It can be inferred from the foregoing that the transferee Magistrate is not-bound by 6 7
Section 81 of Criminal Procedure Code (Cap 75). Misc. Cr. Application No, 24 of 1992, HC, Kisumu (unreported). Page 164 of 382
earlier pre-transfer orders and/or decision, if any.
In conclusion, it should be borne in mind that the power of the High Court to transfer a case emanates from its unlimited original jurisdiction in both criminal and civil matters8. The power enables it to ensure that courts and other tribunals subordinate to it administer justice fairly, impartially and according to the procedure established by law. Transfer of cases is one avenue towards this end. Whereas it is apparent that the High Court and the Subordinate Courts have concurrent powers to try offences under the Penal Code9, majority of cases are tried by subordinate courts. Offences like murder, treason and like serious offences, as well as where substantial question of law or where question regarding a litigant's constitutional rights are involved, the High Court will normally preside over.
8 9
Section 60, Kenya Constitution Text of (1998) 1992 Ed. Cap 63 of the Law; of Kenya penal Code. Page 165 of 382
CHAPTER TEN SOME THOUGHTS ON COMMITTAL PROCEEDINGS1 A. INTRODUCTION
In order to understand committal proceedings it is important to understand the preliminary inquiry procedure which preceded it. Commenting on preliminary enquiry, Hogarth J said:
"To be of practical value to the court, pre-trial information should pass four tests namely: reliability, validity, relevance and efficiency.2"
It is the sufficiency test which is the basis of preliminary inquiries. To be sufficient, the information ought to be valid, reliable and relevant to the objectives of the court. It was this test of sufficiency of information or evidence that a preliminary inquiry needed to pass in order to warrant a committal. It is not easy to distinguish between preliminary inquiry and committal proceedings without first trying to illuminate more on the preliminary inquiry as practised before it was abolished in 1982.
B. PRELIMINARY INQUIRY The provisions governing preliminary inquiry were set in the Criminal Procedure Code sections 230-249. In the inquiry the court did not have to determine the guilt or innocence of the accused person. It had only to consider
1
Provisions relating to the Commital of accused persons for the trial before the High Court were repealed vide Amendment Act No. 5 of 2003. Nevertheless, this chapter is retained for historical reference. 2 Hogorth J, Sentencing as a human process, Toronto, Toronto University Press, 1971 pp 46 Page 166 of 382
whether the evidence was sufficient to put the accused person on his trial and in which case it committed him to the High Court – if the evidence against the accused was considered insufficient, he was discharged, However, this discharge was not a bar to the prosecution of the accused on any subsequent charge in respect of the same facts. The Magistrate's duty was largely mechanical. His principal task was to record the evidence during the inquiry. It could therefore be well argued that the time spent in the preliminary inquiry could more profitably be used in the actual hearing and determination of the case. Inconvenience to the witnesses was tremendous and hence the criticism of the process. It is noteworthy that objections to the preliminary inquiry ranged around the issue of time and expense. However, the inquiry served as an opportunity for the accused to know what the case against him was. The inquiry also provided a chance for the accused to challenge any evidence of the prosecution. It also afforded the accused an opportunity of appearing before a Magistrate with some dispatch and having his case investigated so that it could be determined whether or not there was sufficient evidence to put him on trial. Preliminary inquiry was abolished in 19823 and substituted with committal proceedings which had the basic idea that the accused person should be served with statements taken by the police from prosecution witnesses. If an accused person wished
to object to any of the statements, time was
allocated for the cross-examination of such witnesses by the accused or his counsel. On the other hand, if the accused did not object to the statements, he appeared before the Magistrate who considered whether or not the statements disclosed sufficient evidence to justify a committal. If satisfied, the Magistrate made a committal order which committed the accused person to the High Court for trial.
3
See Criminal Procedure (Amendment) Act of 1983. Page 167 of 382
Witnesses were
called when
necessary and this saved
time and
expenses.
Preliminary Inquiries in Kenya before December 1982 On 5th November 1982, amendments to the Criminal Procedure Code were passed which abolished prelimimary inquiries.
The then Attorney-
General Joseph Kamere advanced the following reasons for the amendment:
"The purpose of this Bill is twofold: clause (I) (2) (3) and (4) will speed up criminal trials by permitting either the prosecution or the defence to admit facts or witnesses' statements. This can be done to avoid calling witnesses whose evidence is purely formal or uncontested. There are safeguards to protect unrepresented accused4".
To understand the safeguards and speed as stated by the Attorney General in 1982, it is important to gain further insight into how the preceding preliminary inquiries worked. By definition, preliminary inquiry is an inquiry held to investigate the matter.
"An inquiry in an action was not limited to what a man could see with his own eyes; it signified a judicial inquiry with witnesses.5”
In Kenya Preliminary inquiries were held in Magistrate's courts. The prosecution witnesses were examined and also cross-examined, and their
4 5
The Kenya Gazette Supplement Bills 5th Nov. 1982 at 67. Stroud F, "Strouds Judicial Dictionary", London, Sweet & Maxwell Ltd., 1973 (Vol. 3). See also Wenlock -vs- River Dee Co; 19 Q.B.D 155. Page 168 of 382
evidence recorded in a deposition (document in which witnesses' evidence in the inquiry was recorded). The deposition would be read over to the witness and if he agreed with its contents (substance and accuracy) he would sign it. The Magistrate conducting the inquiry would also sign it. If the Magistrate considered that the prosecution had a prima facie case he would commit the accused to stand trial in the High Court.Preliminary inquiries in Kenya were regulated by the Criminal Procedure Code, a derivative of the 1925 Criminal Justice Act of England, which is regarded as one of the Statutes of General Application6. Under the provisions of the Criminal Procedure Code (as they were) the Magistrate took depositions of the prosecution witnesses who were subject to examination by the accused. . They would then sign if accurate. The fact that the inquiry was held to establish facts and was not
as
trial reflected badly on the fairness of the procedure. The same witnesses and the accused himself were the same persons who were required at the trial to lead evidence after a subsequent committal, and it was upon the state to bind the witnesses and the accused to appear at both the trial and inquiry. Section 242 read:
"When an accused is committed for trial before the High Court, the subordinate court…shall bind by recognizance…the complainant and every witness to appear at the trial to give evidence, and also to appear and give evidence if required at any further examination concerning the charge…"
The essence of preliminary inquiry was found in section 239 and 240 which related to the discharge or committal of an accused person. The sections had
6
Covered by section 3(1) of the 1967 Judicature Act. Chapter 8 of the Laws of Kenya. Page 169 of 382
also underlined the Magistrate's ultimate duty so explicitly put by CJ Cockburn as:
"The duty and province of the Magistrate before whom a person is brought with a view to his being committed for trial is to determine, on hearing the evidence of the prosecution and that for the defence that if there be any, whether the case is one in which the accused ought to be put on his trial. It is no part of his province to try the case...7"
Section 239 provided that once the prosecution had proved a 'prima facie' case against the accused, the accused would then be "committed for trial". The expression "Committed for trial" was defined by Goddard J thus:
"The expression 'committed for trial' used in relation to any person shall, unless the contrary intention appears, mean... committed to prison with the view of being tried before a judge...”8 The Criminal Procedure (Amendment) Act9 substituted preliminary inquiry with committal proceedings. One similarity between the two was
that an
accused appeared before a Magistrate in a subordinate court. Much of the procedure did not vary. However, the difference was that oral evidence was tendered in committal proceedings as was the case in preliminary inquiries as read in section 232 of the procedure. Under the amendment, section 232 (1) read:
7 8 9
R-v-Garden (1879)5 QB I at 10. R -vs- Gee (1939) 2 KB 442 at 446. Act No. 13 of1983. Page 170 of 382
"Except as provided by this section, oral evidence shall not be given in committal proceedings…"
Where the evidence was sufficient to commit an accused, the magistrate issud a cautionary address in which it was made clear that the committal proceedings were not the trial and that anything the accussed said before the court would be taken down and could be used at the trial.
C.
COMMITTAL PROCEEDINGS Committal proceedings was defined in the Act 10 as proceedings held by
a subordinate court for the purpose of committing an accused person for trial before the High Court. The committal proceedings were not the trial. The committal documents, or depositions prepared by the police (or prosecution) were submitted to the subordinate court, which in this case was restricted to a Senior Resident or Chief Magistrate's Court. Where the accused did not object to the documents, the Magistrate formed an opinion of whether there was sufficient opinon before committing the accused person for trial. Committal proceedings were
faster than the preceding
one of
preliminary inquiry where witnesses were required to make statements again. The relevant part of the Criminal Procedure Code which dealt with committal proceedings was part VIII. . The power of the subordinate court to hold committal proceedings was granted under section 230 and the court could hold committal proceedings where a person appeared before that court charged with an offence which was triable only by the High Court or to which section 220 applied. Section 220 of the Criminal Procedure Code provided that the subordinate
10
Section 2 of Criminal Procedure Code (Cap 75). Page 171 of 382
court could adjourn a case if it took cognizance that the offence was unsuitable for trial before such a subordinate court. In that case, the subordinate court would require the prosecution to comply with the procedure of committal proceedings as enacted in Part VIII of the Criminal Procedure Code. Briefly the procedure was that the prosecution furnished to the accused or his advocate one set of the committal documents and three sets to the court. This was
done not less than fourteen (14) days before the date fixed for the
committal proceedings.11 The documents contained among other things the information stating the charge, a list of witnesses which the prosecution intended to produce at the trial, a list of exhibits intended for production at the trial. Exhibits included
statements of the accused, medical reports, any
identification reports, photographs and sketch plans made among others. It clearly stipulated that if the accused intended to use an alibi defence, a prior warning was required. He must have stated that he intended to use the defence and gave details of it and of any witnesses he intended to call in support thereof12. In such proceedings, no oral evidence was allowed and no person was allowed to address the court without leave.13 The magistrate read the committal documents before the commencement of committal proceedings and framed a charge, read and explained it to the accused person while informing him that he need not reply. Section 232(4) provided for the mode of address to the accused by the magistrate in the following manner:
"This is not your trial. You will be tried later in another court before a judge and assessors, where witnesses will give evidence and you will be allowed to make a statement or give
11 12 13
Section 231(1) Criminal Procedure Code (Cap 75). Section 231(2) (d) Criminal Procedure Code (Cap 75). Section 232 Criminal Procedure Code (Cap 75). Page 172 of 382
evidence on oath and call your witnesses. If you wish, you may say something now, either on oath or not on oath. If you say anything on oath now, you may be questioned by the prosecution. If a promise or threat, was made to you earlier, it should not make you confess to an offence now. Anything you say will be written down and may be used at your trial."
The accused could alter or explain any statements or evidence he had recorded and the magistrate certified that the statements or evidence was made in his presence and also certified the accuracy of the record. The procedure culminated with the signing of the record by the accused. If the accused refused to sign, a note of refusal was made and the record used as if the accused person had signed it. 14. If there were insufficient grounds for committing the accused person for trial, the Magistrate discharged him.15 The prosecution was withdraw the charge and the magistrate
allowed to
discharged the accused person.
However, a discharge under the above two provisions was not autrefois acquit because section 233(3) stated that:
"A discharge under sub-section (1) or (2) shall not operate as a bar to subsequent proceedings on the same facts."
This rendered in another version simply meant that the discharge was not an absolute one and the prosecution could re-open the files by bringing in fresh charges, which could be like the previous ones. Once an accused had
14 15
been committed for trial, the committing
Section 232(7) Criminal Procedure Code (Cap 75). Section 232(1) Criminal Procedure Code(Cap 75). Page 173 of 382
magistrate administered bail or remanded the accused person until the trial.
16
However, because all offences triable exclusively by the High Court are nonbailable, the question of bail never arose. The Ugandan case of Zubairi17 focuses on the point of bail and committal proceedings. In this case, the respondents were committed to stand trial on charges of murder. They were in custody for over 365 days and made an application under the Magistrates Court Act section 74(a) thereof for bail. [Provisions of Magistrates Court Act of Uganda distinguished from the law relating to bail on a murder charge in Kenya]. The magistrate held that the maximum period of remand related to remand in custody while police were investigating and it did not apply after the preliminary inquiry had been held and the respondents had been committed to trial. The decision was referred to the High Court. Bail was granted to both respondents. On appeal to the Court of Appeal it was held inter alia that;
(i)
when a Magistrate commits a person for trial he is required to remand or release on bail;
(ii)
a Magistrate who has committed for trial is 'functus officio' and cannot entertain an application for bail;
(iii)
the accused has a right to apply for bail to the High Court;
(iv)
the proceedings in the High Court were in substance an application for bail; and
(v)
no appeal lies from the High Court's decision to grant bail.
The appeal was thereby dismissed and bail allowed. In some instances, statements of persons dangerously ill and which are relevant to the trial may be taken by the Magistrate who shall certify the accuracy of the record. He shall further make a note giving the reasons for his taking it. He should also state the 16 17
Court,Section 234. Criminal Procedure Code (Cap 75). Uganda -vs- Zubairi and Another (1973) EA 470. Page 174 of 382
date when it was taken. This was preserved for the trial.18 If the statement related to the offence for which the accused was under a charge or committed for trial, reasonable notice was to be given of the intention to take it and if the accused person was in custody, he could request to be brought to the place where the statement was to be taken.19 Such a statement was then transmitted to the Registrar of the High Court and a copy thereof be transmitted to the Attorney-General. Such statements could have been used in evidence during the trial. 20.
D.
A CRITIQUE OF PRELIMINARY INQUIRY The legal basis of the law and development of the Criminal Procedure in
Kenya can be traced to the colonial era when the first courts were set up by the 1897 East African Order-in-Council, which created Native Courtss. It was with the introduction of these native courts that the English system was incorporated in Kenya. It is this experience therefore, that led to the 'Old Law' of England on preliminary examination being accepted in its entirety in Kenya. The functions of the preliminary inquiry were threefold: First was the test of sufficiency of evidence; Secondly the propriety of the proceeding being passed on even where the evidence was sufficient from the prosecution to the Magistrate. Finally, the inquiry allowed the defendant limited discovery of the case against him and preservation of the testimony which might otherwise be unavoidable at the trial. Under section 23121 the inquiry was to be carried out by any 'magistrate empowered to hold a subordinate court for first, second or third class.’ To put a person accused of and charged with a capital offence in the hands of a third class Magistrate seems unreasonable and the Magistrate to try the accused 18 19 20 21
Section 246 Criminal Procedure Code (Cap 75). Section 247 Criminal Procedure Code (Cap 75). Section 249 Criminal Procedure C.ode (Cap 75). Criminal Procedure Code (cap.75) Page 175 of 382
should only be one deemed capable of handling a crime carrying a death penalty. The amendment catered for this and limited the Magistrate's powers. It conferred, the power to the higher status in the Chief-Magistrate or principal Magistrate. The time taken between the inquiry and trial was often so long that the memory of witnesses were hazy. These discrepancies saw the system get more and more unpopular. The malady of the "system's memory" was cured by the requirement in committal proceedings that not only would oral evidence be disallowed, but statements and evidence must be documented by the prosecution and the defence as well.
E. COMMITTAL PROCEEDINGS AND CONSTITUTIONAL RIGHTS One of the fundamental rights of an accused person is found in section 77 of the Constitution of Kenya which reads:
"... any person ... charged with a criminal offence shall be given adequate time and facilities for the preparation of his defence...22 shall be permitted to defend himself before the court in person or by a legal representative of his own choice...23"
The time within which committal documents were required was not adequate to prepare defence.
E. CONCLUSION Although the introduction of Committal Proceedings has served to expedite the process of trials particularly in murder cases, delays are still 22 23
Section 77 (c) Constitution (1998) 1992 Ed. Section 77 (d) Constitution (1998) 1992 Ed. Page 176 of 382
common. To give practical meaning to the changes such delays should be avoided by stipulating the time within which committal proceedings must be rendered after the decision to prefer charges has been taken.
CHAPTER ELEVEN TRIAL IN THE HIGH COURT1
A.
INTRODUCTION
The High Court of Kenya is established under
section 60 of the
Constitution. It has jurisdiction in civil and criminal matters over all persons , and over all causes in Kenya. It exercises general powers of supervision over subordinate courts and tribunals. The High Court is the primary court of first instance because it is able to try any case of any description. However, some cases suc as of murder and treason are exclusively triable by the High Court. While before the repeal of section 220 of the Criminal Procedure Code as read together with section 230(b) of the Code may have given the impression that there were other offences exclusively triable by the High Court, the true position however was that only murder and treason fall into the category of offences exclusively triable by the High Court. This view must respectfully be wrong. First, it derogated from the plain meaning of sections 220 and 230 of the Criminal Procedure Code. More importantly, it could not stand to reason in light of section 234 of the Criminal Procedure Code, which obligated
a
Magistrate upon committing a person for trial to the High Court, to either admit
1
Sections 220 and 230 of the Criminal Procedure Code were repealed by Amendment Act No. 5 of 2003. However, the trial procedure at the High Court is discussed as it was before repeal of provisions relating to committal of the accused persons for trial before the High Court. Page 177 of 382
him to bail or remand him in custody. It is submitted that if only murder and treason were contemplated, provision for bail were futile as the two are nonbailable offences. The caption must have been inserted (and reasserted through Act 13 of 1987) in contemplation of such other bailable offence which may however prove unsuitable for trial in a Magistrate's court. The High Court is presided over by the Chief Justice or by a Puisne Judge. There are various High Court Judges who stay and work in Nairobi. There are also Resident Judges in nearly all provinces in Kenya. In some provinces like Nyanza, for instance, there is a resident Judge in Kisumu and another in Kisii town.
B. COMMITTAL PROCEEDINGS AND THE COMMITTAL BUNDLE2 If having read the committal documents a magistrate formed the view that there was insufficient evidence for committing an accused person for trial, the accused was discharged under section 233 of the Criminal Procedure Code. If magistrate found sufficient evidence, a charged was framed and read to the accused who needed not reply to the read charge. (section 232(2)). In framing the charge, the Magistrate observed the rules of framing a charge borne by practice and judicial authority3. The charge must have been properly framed as in Statement of Offence and Particulars (section 137). It specified the statute and section under which it was brought. The High Court was not entitled to speculate on the probable intention of framers of the charge (Kenera Opidi v R)4, but satisfied itself that the charge was correct in all respects5. The charge sheet contained the the full names and
2
Provisions relating to committal proceedings were repealed via Criminal Law (Amendment) Act No. 5 of 2003. Nevertheless, these provisions are discussed for historical references. 3 See Douglas Brown Criminal Procedure in Uganda and Kenya list Ed sweet and Makwell Wist PC) 46 4 (1965) E.A.614 5 Avone-v-R (1969) E.A.I 29. Page 178 of 382
address of the accused person. Dates in the charge sheet were stated in such a manner to precisely tally with the day on which the wrongful act was committed. 6. Where the date of event was uncertain, the Magistrate gave an approximation of the dates7. The place where the alleged offence was committed was also stated in the charge sheet. In Loibon's case8, the charge gave no particulars of the place of the offence except to state that it occurred in the Northern Province of Tanganyika. It was held that a reference to what may be a vast territory can hardly be said to indicate to an accused person, with reasonable clarity, the place at which it is alleged he committed the offence. Provision for joinder of counts is made under section 135(1) of the Criminal Procedure Code. It provides that:
"Any offences, whether felonies or misdeameanours, may be charged together in the same charge or information if the offences charged are founded on the same facts or form or are part of a serious offences of the same or similar character".
However, the Court of Appeal has long held that it is undesirable to charge an accused person on more than one charge of murder 9. That rule has remained undisturbed and has been followed in subsequent cases. The same court has also laid down that a charge of murder ought not be laid with a count of another offence10. In the case of Yowana Sebuzkira11, the Court of Appeal upheld its ruling that there should be no departure from the established rule of
6 7 8 9 10 11
Semi Longa -v- R (1964) EA 512 Lujo -v- R (1946) 13 E.A.C.A, 156. (1949)16 EACA86. Mongolia -v- R (1934) 1 EACA 152. Valezi Kashiza -v- R (1954)21 EACA 389. (1965)EA684. Page 179 of 382
practice that no other count should be joined to a count of murder or manslaughter, except where the additional count is based on precisely the same facts as the more serious charge. As to whether the same rule applies to treason, which is also a capital offence exclusively triable by the High Court, is a matter of conjecture. In practice, however, the treason charges brought in Kenya have not contravened this rule. It is submitted that this is reasonable as the accused person should be afforded ample time and concentration to defend himself against a capital offence. Similarly, where the second count has different procedural requirements, it would greatly constrain the court in achieving a speedy trial. A charge must not be duplex. Duplicity is a fundamental mistake and not normally curable by section 382 of Criminal Procedure Code. In the case of Sowedi Kauta12, it was held that a charge alleging the murder of two persons in one count is bad in law. There should have been two counts. In Mongolia13, the accused was convicted of the murder of six persons. The charge of murdering the six was laid in one single count. It was held that he should have been charged in six separate counts. The test for duplicity was laid down by the Kenya Supreme Court in Laban Koti14 that;
"In deciding whether there is duplicity in a charge, the test is whether a failure of justice occurred or the accused has been prejudiced".
The charge framed by the Magistrate was in the same terms as the information15 or an amendment thereof. Section 253 of the Criminal Procedure
12 13 14 15
(1933) 13 K.L.R. 105. Mongela, (supra) note 7. (1962)EA439. Elsewhere, e.g. Uganda, the word 'indictment' is used with reference to trials before the High Court.. In Kenya, the word 'information' is used. Page 180 of 382
Code required that information drawn up for the purposes of committal proceedings be in the name of and signed by or on behalf of the AttorneyGeneral. The interpretation of this requirement was not easy especially when read in the light of section 88(1-3) of the same Criminal Procedure Code. Section 88gives provision for instituting private prosecutions in magistrate courts. This has known judicial recognition in the case of Kimani and Maina v Nathan Kahara16. Unlike in the magistrates court, one cannot institute a private prosecution in the High Court in his name as he must (under section 253) do so in the name of Attorney-General. Moreover, section 88 appears to contemplate only such a situation in a Magistrates court. This position must be wrong. While it may be understandable in an allegation of treason for it is the state to decide who undermines it, it is absolutely unfair to the murdered victim and his/her family if the police and the Attorney-General's office neglect to take action. It is such police inertia that private prosecutions try to curb. It should be allowable that such inertia is arrested even in the High Court when for political or other reasons, the Government declines to prosecute.17. The AttorneyGeneral may, in certain cases, specifically appoint certain persons to prosecute certain cases under section 85(2). This was recognised in the case of Gamiliere Mubito18.
C. ARRAIGNMENT AND THE PLEA The process of arraignment is dealt with by section 274 to 283 of the Criminal Procedure Code. The term arraignment is used only in trials before
16
17
18
H.C.Criminal (Misc) App. No. 11 of 1988. See also Gouriet Vs Union of Post Office Workers (1978) A.C. 435. Recall for instance the intriguing murders of J. M. Kariuki, Argwings Kodhek, Tom Mboya, Julie Ward, Robert Ouko et al. Natural justice would demand that some prosecution ensue, best of all private, with cooperation from the investigation branches of the Government. (1961)EA244. Page 181 of 382
the High Court. As one writer opines19, the Court must be sure that the accused has attended on the day appointed for trial in the High Court. If the accused is on bail bond, he appears on the date indicated therein. If he is in custody, it is the State's duty to ensure his attendance. The accused person to be tried by the High Court shall be placed at the bar unfettered. The charge is read over to him by the Registrar or other officer of the Court. The charge is explained in straightforward language. The accused must understand the charge. He is then required to plead (section 274 Criminal Procedure Code). But before pleading, various issues could arise. The accused may decline to plead on the ground that a copy of the information to which he is entitled, has not been served on him. He may also object to the case proceeding without being furnished with statements made by witnesses previously in an inquiry or inquest, if such documents are in the possession of the AttorneyGeneral20. Should the court sustain such objection, proof of service may be required. For the latter, if the prosecution objects, a ruling is first made. The taking of the plea may then be adjourned pending proof of service. Otherwise the court will order that the defence be supplied with such documents and may for that purpose adjourn the proceedings.
Since Act No. 5 of 2003 repealed provisions relating to the committal proceedings including all the provisions which made it mandatory for the prosecution to furnish the court and the accused with committal documents, there has not been standard procedure on whether the prosecution should disclose the list of witnesses, their statements and other exhibits and documents which it wish to rely on. However, the issue was dealt with in the case of R –vs-
19 20
Douglas Brown, Supra note 1. Ruling of justice Fidhahussein Abdullah upon an application by Mr. Bowry for accused that ahe be supplied with statements of witnesses taken at the Ouko COmmissin of Inquiry. The case in issue was R –vs- Jonah Orao Anguka. H. C. Criminal Case No. 41 of 1992. Page 182 of 382
Kamlesh Pattni.21 The accused in that case was arrested after the repeal of provisions relating to committalproceedings including provisions requiring the prosecution to supply committal documents to the accused. The prosecution argued in support of non- disclosure of the list of witnesses, their statements and other exhibits and documents which it intended to rely on and only to supply those which in prosecution’s absolute discretion were deemed necessary. The court stated that the decision whether or not to withhold statements of witnesses cannot be left to the prosecution and that it must be a judicial decision to be made after a just cause or peculiar circumstances of the case are demonstrated to the court. The court argued that: “pre-trial disclosure was well known and approved in this country under Emergency Regulations and is not a new idea. Kariuki Kamau & Others –vsReginah (1954) 21 EACA 203 is a case on point where this practice was approved by the Court of Appeal for East Africa. It was a misconception for the prosecution to submit that since Part VIII of the Criminal Procedure Code and all the provisions there under had been deleted, then the prosecution was not obliged to supply witness statements and exhibits to the defense.” The court went on to state that the prosecution’s duty to disclose all relevant information is safeguarded under section 77 of the Constitution which provides that an accused person should be afforded a fair hearing within a reasonable time. The court argued that ‘fair trial’ constitutes in it the right to pre- trial disclosure of material statements and exhibits. It went on to declare that that is the only way an accused person would be able to prepare for the case and to have an informed representation. The court declared that “anything less would mean that the court is giving approval to trials by ambush and in criminal litigation, it is against the rules of natural justice and the rule of law to adopt a 21
Republic -vs- Kamlesh Mansuklal Damji Pattni alias Paul Pattni (2003) Criminal Case No. 229 of 2003 in the Criminal Division of the High Court Nairobi. Page 183 of 382
practice under which an accused person will be ambushed.” Finally, the court expressed the view that the witness statements, exhibits and documents obtained by the prosecution after investigations are not the property of the prosecution but the property of the public to ensure that justice is done.
It is submitted that this is the correct procedure to adopt in the High Court in the wake of repeal of provisions relating to committal proceedings.
As under section 275(1), every objection to an information for a formal defect on the face thereof shall be taken immediately after the information has been read over to the accused person and not later. Objections relating to joinder (of offences and/or persons), framing of charge, among others issues must comply with this section. If the objection is tenable, the information may be amended. Such amendment allowable under section 275(2) and (3) must be complied with, that is, a note of the order of amendment shall be endorsed on the information. The section does not lay down any point in the trial beyond which it is impossible to amend an information. The Judge has discretion to amend it before a trial or at any stage of the trial. Amendments in subordinate courts are regulated by section 214 of the Criminal Procedure Code, which is in effect similar to section 275(2). Principally, any amendment can only be effected, if it does not occasion injustice to the accused person. An amendment that would entail a major reconstruction of the charge is not allowable, especially if made at the conclusion of the evidence22. An amendment of a charge other than correction, of a mere matter of form should hardly be allowed after the accused has begun to give evidence23.
22 23
Mushraf Akhtar v R (1964) E.A 89. Main (1954)21 EACA 252. Page 184 of 382
The last sentence of section 275(2) reads thus:
"... and any amendments shall be made upon such terms as the court shall deem Just”. In Akatendasama24, it was postulated that amendment of a clarge should show the amendments in red. Perhaps it is good to adopt this in the High Court. If an information does not state and cannot even after amendment be made to state an offence for which the accused has had notice, it shall be quashed either on a motion, made before the accused, pleads (as above) or on a motion in arrest of judgment (section 276(1)). The motion shall be written and delivered to the Registrar or other officer of the court (section 276(2)).
D. TAKING THE PLEA When taking the plea, the Judge must record the answer given by the accused as nearly as possible in the accused person's own words. It is essential not only that every constituent of the charge is explained to the accused but that he should be required to admit or deny every such constituent.25 Should the accused admit the charge certain safeguards may still prohibit a plea of guilty from being recorded and if the plea is unequivocal, the same may be entered. In the case of Mutua26, it was said that no man is to be convicted on a plea which, is ambiguous. If there is any ambiguity it is to be taken as a plea of not guilty. In Tomasi Tofu27, the appellant had speared, the deceased to death. When arraigned for murder, the appellant said. "I speared him to death as he had killed my son the same day". The trial judge, then heard counsel, for the prosecution 24 25 26 27
(19b6)23 EACA487. Hando (1951)18 EACA 307, (1951)18 EACA 311. (19!:>9)EA625. Page 185 of 382
and thereafter convicted the appellant for murder and sentenced him to death. On appeal, it was held, inter alia, that the appellants plea was not an unequivocal plea of guilty of murder and might well have been a plea of killing upon provocation and this vitiated the conviction. A new trial was ordered. When asked to plead, the accused may, or may fail to, adopt any of the various approaches. Assuming he understands the charge and no objection has been raised, or if it has been overruled, or settled, he may: 1. Plead guilty 2. Plead not guilty 3. Say nothing - this is entered as a plea of not guilty or the court may try if the accused is of sound or unsound mind. 4. Assert that the court has no jurisdiction, over him. 5. Demurrer; give a legal objection., that is, admit the facts but say they do not amount to an offence known to law. 6. Plead Autrefois Convict. 7. Plead Autrefois Acquit 8. Plead, (having been previously) pardon(ed).
(a) Plea of Guilty Section 281 states simply that if the accused pleads guilty, the plea shall be recorded and he may be convicted thereon. But this is too simplistic. Before convicting on a plea of guilty, it is essential not only that every constituent of the charge should be explained to the accused, but that he be required to admit or deny every such constituent. Even this procedure may not be sufficient in certain instances. The more serious the charge, the greater the caution exercised by the High Court in accepting a plea of guilty. Since the High Court originally tries capital cases (except cases referred to it under section 230(b)), a plea of Page 186 of 382
guilty will hardly ever be recorded. The judicial attitude is illustrated by the case of Mangwera28. The Court of Appeal here held that while there is no statutory provision invalidating a conviction on a capital charge of an accused person's own plea where it does amount to an unequivocal admission of guilt, it is generally inadvisable particularly where the accused does not speak English for the trial judge to accept a plea of guilty on such a capital charge. Again in Chacha29, the Court of Appeal said there was no general rule that a plea of guilty should not be accepted, in a capital case but precautions are necessary. The words which an accused used in plea should be recorded in a form which will satisfy an appeal court that the accused fully understood the charge and pleaded guilty to every element of it unequivocally.30 The word 'guilty' should not be used in recording a plea unless it is actually used by the accused in which case the record should show that the accused spoke in English.31 A plea of guilty when recorded, does not rank as a conviction until the accused is sentenced32. If there are various counts, and he pleads guilty to one or more of them, the proper course for a judge is to allow the count to which he has pleaded guilty to remain on the file and not proceed to sentence33.
b) Plea of Not Guilty By such a plea, an accused, person is deemed to have put himself upon the court for trial (section 278). The trial would then proceed in accordance with S.282 and as discussed elsewhere.
c) Option of Silence
28 29 30 31 32 33
(1952) 18 EACA 150. (1953)2.0 E::ACA 339. Yonasani Egalu (1942)0 EACA 65 Waithaka (1963) EA38. Cole (1965)49 Cr. App R.199. Ibid. Page 187 of 382
This is dealt with under section 280. Under this provision, there are two options, namely; (i)
If an accused stands mute of malice, a plea of 'not guilty' shall, be entered and the trial proceeds as under section 282 or
(ii)
the court may determine whether an accused is of sound mind or otherwise. If he is of sound mind, a plea of 'not guilty' is entered. If he is not, the trial will be postponed and the accused will be kept in safe custody at the pleasure of the President who may order that he/she be confined in a lunatic asylum, or other suitable place.
A detailed account of the procedure of what happens when an accused person, stands mute in court is discussed later34.
d) Objection to Jurisdiction An accused, person may claim want of jurisdiction on various grounds.
(i)
Territorial jurisdiction; Concerns offences committed outside Kenya. It also involves offences committed in the international waters.
(ii)
Time limit; while there is no time limit for a criminal prosecution, certain statutes impose limits e.g. Sedition case to commence within 6 months in Kenya (section 58 of the Penal Code)35.
(iii) Diplomatic Immunity; pursuant to the Privileges and Immunities Act (Cap 179) diplomats are immunised from prosecution unless the accrediting country or body waives the immunity. (iv)
Insane Persons; section 12 of the Penal Code provides that a person is not criminally responsible if he was insane at the time of committing the
34 35
See Chapter Twelve Under the statute law (Repeals and Miscellanous Amendments) Act No 10 1997 which came into force on the 7th day of November, 1997 the offence of sedition has now been outlawed. Page 188 of 382
offence. This also applies when he is insane at the time of trial. (v)
Children under the age of 8 years are not to be held liable for alleged offences (section 14(1) of the Penal Code). Those under twelve years are not criminally responsible for any act or omission unless it is proved that at the time of doing the act or making the omission he had capacity to know that he ought not to do the act or make the omission. A male under the age of twelve years is presumed to be incapable of having carnal knowledge.
(vi)
Judges and Magistrates being Judicial officers are exempt from Criminal proceedings in respect of exercise of their judicial powers (section 15 of Penal Code, section 7 of Magistrates Courts Act Cap 10 and section 46 of the Judicature Act Cap 8).
(vii) Presidential Immunity; the President is not above the law as often bandied. All he enjoys is immunity as granted under section 14 of the Constitution. Indeed, even if such criminal proceedings were brought against him while he still holds the office, he has the power of pardon; a prerogative which he and he alone can exercise, and nothing should, stop him from pardoning himself; a case of indivisible authority.
(e) Demurrer Demurrer is an objection to the form or substance of a charge, as not amounting to an offence known to law. It is a rare plea which even in England as Lord Parker C J said in Deputy Chairman of Inner London Quarter Sessions36 would soon become moribund. In Kenya, no recorded case of this plea is known to the writer. Indeed, and not surprisingly, it has not been provided, for expressly in the Kenyan Criminal Procedure Code.
36
(1970)2 WLR 95. Page 189 of 382
(f) Autrefois Convict This principle is sanctioned and recognised as a plea by section 279(a) of the Criminal Procedure Code. If the accused gives this plea, but denied by the prosecution, the court shall try the veracity of the plea. If the facts alleged by the accused do not prove the plea, the accused shall be required to plead to the information. The principle was summarized in Daudji37, that on a plea of autrefois acquit or convict the test is not whether the facts relied on are the same as the two trials, but whether the acquittal on the previous charge necessarily involves an acquittal or conviction on the subsequent charge. The question is whether the accused has been convicted of an offence which is the same as that with which he is now charged38.
(g) Autrefois Acquit It also furthers the principle of double jeopardy. It is a plea recognised by section 229(a) Criminal Procedure Code. The principle is that if a man has been tried and found not guilty of an offence by a court of competent jurisdiction the acquittal is a bar to a second charge for the same offence. Where the first trial has been declared, a nullity and conviction and sentence set aside, the proceedings are deemed, to have been a non-event and a plea of autrefois acquit at the second trial cannot stand39. A discharge of an accused under section 87 of the Criminal Procedure Code is not an acquittal and a plea of 'autrefois acquit' cannot be sustained.
However, if such application to withdraw under section 87 is made after the accused has been called upon to give his defence, the Magistrate shall acquit the accused under the said section and this would now operate as a bar.
37 38 39
(1948) 15 EACA89. Salim Bin Karama (1 951)18 EACA 304. Loizeau (1956)23 EACA 566. Page 190 of 382
(h)
Pardon
The President wields the prerogative of mercy and may grant a free or conditional pardon to a person convicted, of an offence, under section 27 of the Constitution. Section 279(b) recognises the plea and. is a bar to further proceedings.
E.
PROCEDURE IF ACCUSED STANDS MUTE; INSANE, MUTE OF
MALICE DEAF AND/OR DUMB Section 280 of Criminal Procedure Code discusses the- basic procedure to follow when an accused refuses to plead, by reason of infirmity, unsoundness of mind or malice. But the section does not give the elaborate procedure. Such procedure was given in the case of Lelawan Leseroi40, a Supreme Court of Kenya decision. In this case, the record showed that when the appellant first appeared in court to answer charges of stealing cattle, the Magistrate recorded that he said it is not true. At the trial, a week later, the Magistrate recorded that the appellant was unable to hear or speak though he was said to be quite fluent when questioned at the police station. Thereafter, prosecution witnesses were called, of whom the appellant though given the opportunity did not crossexamine. Three of them said the appellant was able to speak. The chief of the area however said that the appellant was unable, to speak, and that they spoke to him by hand signs and he replied in the same way. The prosecution closed its case and the accused was given opportunity to conduct his defence but was not asked any questions. Allowing the Appeal, Sir John Ainley C.J. laid down an elaborate account of the procedure that ought to have been adopted, as follows:
40
(1964)EA 111 Supreme Court of Kenya decision; Sir John Ainley, C..I & Wicks). Page 191 of 382
"If an accused stands before the court dumb, and apparently without comprehension..., the court before proceeding' with the trial should consider whether there is reason to believe that the accused is of unsound mind. There are, of course, practical difficulties in deciding whether the accused is playing the fool or not. It may be quite obvious that he is playing the fool. If that is so the court is entitled, having entered a plea of 'not guilty', to proceed with the trial. In most cases, however, it will be wise to have the accused, examined by a doctor even if this entails considerable delay. A doctor, without much difficulty, will be able to ascertain whether the accused is deaf or not and though it will be more difficult, whether the accused, is rational. It may of course be possible, without medical evidence to1 say that the accused is deaf, but is of perfectly sound mind, in which case, as in a case where a doctor has said that the accused, is deaf but sane, inquiry will turn on whether the accused can be made to understand the proceedings. In such cases some such witness as the chief who was called in the present case, should be examined at the outset. If on hearing a witness of that kind the court finds that intelligence can be conveyed to, and received from, the accused by means of signs there is no reason, if the communication is adequate, why the accused should not be tried through the medium of sign language. It will be a question of degree in each case. The question in each case may be stated in this way taking into account the nature of the charge and the evidence likely to be adduced, are the means of communication available adequate to ensure that the accused will have a full and proper understanding of the allegation made against him and of what Ac prosecution witnesses are saying about him? Further, can the rights of the accused be adequately explained to him and can he avail himself of those rights? If in these respects the means of communication with the accused are adequate, the trial may proceed in the normal way the person chosen to communicate by signs with the accused being sworn in much the same way as an interpreter is sworn. Page 192 of 382
If however communication adequate for the purpose of the case cannot be established the court will make a finding under section 167 (of the Criminal Procedure Code) to the effect that the accused, though not insane, cannot be made to understand the proceeding's. The trial will then proceed and the provisions of section 167(1) (a) will be followed.
What emerges from the above is that the Trial Court shall consider the following: (i)
The question of the accuser’s sanity.
(ii)
If accused is considered sane, the question whether he is in fact deaf or dumb or both.
(iii)
If he is deaf or dumb or both, the question, whether he can by sign or otherwise be made to adequately understand the proceedings must next be considered, and provision, for a suitable 'interpreter’ must be made.
(iv)
If he is sane, section 162 must be followed.
(v)
If he, though, not insane, cannot be made to understand the proceedings, section 167 must be followed; that is, the High Court shall try the accused and if found not guilty, shall acquit him. If the court is, on the other hand, satisfied that the evidence would justify a conviction, shall order that the accused person be detained during the pleasure of the President.
(vi)
If he can, in one way or another, be made to understand the proceedings, with the aid of a 'sign interpreter' if necessary, such will be provided in the normal way.
For clarity the attitude of the Court of Appeal regarding a finding of a judge in any of the above-situations vis-à-vis an accused's right to appeal against it is
Page 193 of 382
germane. In the case of Livingston Amana41, the Kenyan Court of Appeal (Hancox, Nyarangi & Kwach J.A) dealt with this issue. In this case, the High Court Judge at Kakamega had found the accused guilty but insane. The appellant appealed against this finding. The State Counsel argued that under section 379 of the Criminal Procedure Code there is no right of Appeal against such a finding. Although the court dismissed the appeal holding that evidence showed the accused, was properly convicted and was insane, it dismissed, the Counsel's objection. They said.;
"In the experience this court has always entertained such appeals as key are orders to the prejudice of an appellant and on the material, on record, we dismiss the present one".
The court then complied with section 166(6); made a special report to the Minister for transmission to the President that he upon reading the same, may recommend that he be discharged or otherwise- dealt with.
F. PROCEDURE IF ACCUSED PLEADS GUILTY Through Criminal Law (Amendment) Act No. 5 of 2003 the procedure of admission
of guilt was amended. Section 25 (a) of the
Evidence Act Cap 80 states that a confession or admission of a fact tending to the proof of guilt made by an accused person is not admissible and shall not be proved as against such person unless it is made in court.
The court's duty in cases of Plea of guilty in murder was dealt with in the case of Tomasi Mufumu , the court said at Page 627 that: 41
Criminal Appeal No. 125/1989. Page 194 of 382
"It remains to say that it is very desirable that a trial judge, on being offered a plea which he construes as a plea of guilty in a murder charge, should not only satisfy himself that the plea is an unequivocal plea, but should satisfy himself also and on record that the accused understands the elements which constitute the offence of murder (R V Yonasani Egalu [ante]) and understand that the penalty is death. This should be done (and recorded) notwithstanding that the accused may be represented by an advocate."
In such a plea of guilt, the prosecutor usually outlines the facts which evidence is customarily given unsworn, unless the accused challenges its truth in which case it is given on oath42.
G. THE HEARING AND CONDUCT OF THE TRIAL At commencement of the trial, and subsequently, the judge must ensure that an accused is present in court (section 194). No evidence can be taken in the absence of an accused person43, section 99 of the Criminal Procedure Code gives the Magistrate power to dispense with the personal attendance of the accused. No similar provision exists in respect of the High Court and, ex facie, a Judge has no such power. A Court (High Court included) has power to proceed, with a trial where the accused fails to appear after an adjournment. But this is hardly exercisable in the High Court, firstly, because it does not apply in felonies44, and secondly, because cases exclusively triable by the High Court are only serious non-bailable offences where non-appearance does not therefore arise unless the court would want to proceed after the accused has escaped from
42 43 44
R vs- Grimsby Recorder (1951 )2 All E.R. 889, Alexius Afumu & Another V R (1953)26 KI..R 87, Narothanda Vithlani V R (1957) EA 343. Page 195 of 382
custody. Every accused person is entitled to be defended by an advocate of his choice (section 77(2)(d) of the Constitution
and section 193 of Criminal
Procedure Code). It is the accused person's responsibility to ensure that his advocate is present. But before commencement of the trial, the Judge should ensure that the accused has had reasonable opportunity to seek the services of a lawyer. The judge may allow an adjournment (which power he has as under section 283 of Criminal Procedure Code) to give an accused time to engage an advocate of his choice. If after such reasonable time the accused has not done so, the trial may proceed. Short adjournments are also granted in the course of the trial at the instance of the prosecution, the defence, the assessors or the Judge. Section 283(2) allows a Judge to admit an accused to bail during a remand occasioned by an adjournment caused by absence of witnesses or other reasonable cause. Every accused person committed, for trial in the High Court of Kenya must be tried with the aid of assessors (section 262), and in its criminal jurisdiction a High Court trial without assessors is a nullity45.
H.
CONDUCT OF THE CASE AND ORDER OF HEARING Assuming that a plea of not guilty is entered, the prosecution opens. The
Prosecutor usually gives a brief outline of the prosecution's case as indicated in the committal documents. He has a right of address granted under section 300 of the Criminal Procedure Code. The prosecution then calls the witnesses for the prosecution. The witnesses are examined and numbered as PW1, PW2. They give evidence on oath. The Judge should inform the accused that he will be given time to cross-examine, especially if he is not represented by an
45
R V Obau 15 KLR 107 and section 298 of Criminal Procedure Code (Cap 75) Page 196 of 382
advocate. He should also tell him that he will have the right at a later stage to give evidence on his own behalf and call witnesses. That is, it must be explained to him how the trial will be conducted. The prosecution witnesses shall be subject to cross-examination by the accused. Opportunity is sufficient, the accused need not actually cross-examine them. The prosecution may reexamine only on matters raised in cross-examination. In accordance with section 302, the prosecution shall not, without leave of court reasons for which shall be recorded, adduce evidence on a statement which was not presented at the committal proceedings, unless the accused or his advocate has received reasonable notice in writing of such intention. As to what notice is reasonable is a question of fact for the judge to decide. In such cases, a copy of a statement relating to the additional evidence shall be annexed to the. notice. Any statement made by an accused person at the committal proceedings may be adduced as evidence without further proof thereof. When the prosecuting counsel has called all his witnesses and adduced all other evidence, he informs court that his case is closed. After close of prosecutions' case, if the judge, considers that there is no sufficient evidence that the accused committed the offence, and after hearing any argument preferred by the prosecution of defence, he shall record a finding of 'not guilty' (section 306(1)). At any stage in the course of the prosecution's case, a question of law may arise. If this comes up, a trial within a trial may have to be conducted. This is an exception to the rule that assessors have to sit throughout the trial and hear all evidence. When there is an argument as to admissibility of some evidence, the practice is that the assessors are asked to retire. It is illustrated in the case of R v Mathenge s/o Muriemo46. The proper procedure stated in the case of Kinyori s/o Kiraditu v Regina47, that: If the defence is aware before the commencement of the trial that such an issue will arise, the prosecution should 46 47
(1938) 5 EACA 154. (1956) EACA 480 from 482. Page 197 of 382
then be informed of that fact. The latter will therefore, refrain from referring in the presence of the assessors to the statement concerned or even to the allegation that any such statement was made, unless and until it has been ruled admissible. When the stage is reached at which the issue must be tried the defence should mention, to the court that a point of law arises and submit that the assessors be asked to retire. It is important that, that should be done before any witness is allowed to testify in any respect which might suggest to the assessors that the accused had made an extra-judicial statement. For example, an interpreter who acted as such at the alleged making of the statement should not enter the witness box until after the assessors have retired. The assessors having left the court, the state, upon whom the burden rests of proving the statement to be admissible, will call its witnesses, followed, by any evidence or statement from the dock which the defence elects to tender or make. The Judge having then delivered his ruling, the assessors will return. If the statement has been held to be admissible, the state witnesses to whom it was made will then produce it and put it in in writing, or will testify as to what was said if it was oral. The defence will be entitled, and the Judge should make sure that the defence is aware of its right, again to cross-examine that state witness as to circumstances in which the statement was made and to have recalled for similar cross-examination the interpreter and other state witnesses who have given evidence on the issue in the absence of the assessors. Both in the absence and again in the presence of the assessors, the normal right to re-examine will arise out of any such cross-examination. When the time comes for the defence to present its case on the general issue, if the accused elects either to testify or to make a statement from the dock thereon, he will be entitled also to speak again on any questionable circumstances which he alleges attended the making of his extra-judicial statement and to affirm or reaffirm any repudiator retraction upon which he seeks to rely. Indeed, if the accused desires to be heard in his defence either in Page 198 of 382
the witness box or from the dock he will not be obliged to testify in chief or to speak, as the case may be, to anything more than the matters touching on the issue of admissibility; but, once he elects to testify, however much he then restricts his evidence-in-chief he will he liable for cross-examination not only to credit, but also at large upon everything in issue at the trial. The accused will also be entitled to recall and examine any witness of his who spoke to the issue in the assessors' absence, and to examine any other defence witnesses thereon.. The broad principle underlying that procedure is that the accused is entitled to present, not merely to the Judge but also to the assessors, the whole of his case relating to the alleged extra-judicial statement; for the Judges' ruling that it is admissible in evidence is not the end of the matter; it still assesses the value or weight of any admission or confession thereby disclosed and also the accused is still at liberty to try to persuade them that he has good reason to retract or repudiate his statement.
After the Prosecution closes its case the defence will. begin. The judge will inform the accused of his right to address court, whether personally or by his advocate. He shall, be informed of his right to give evidence on his own behalf, or to make an unsworn statement, and to call witnesses in his defence. The Judge will require the defence to state whether it intends to call any witnesses as to fact other than the accused person himself; and so informed, the Judge shall record the fact (section 306(2)). If the accused opts not to give evidence or make an unsworn statement, or to adduce evidence, the prosecution may sum up the case against the accused person. Should he opt to give evidence or make an unsworn statement, the court shall call upon him to enter upon his defence (section 306(3)). The accused or his advocate may then address the court. It is wrong for an advocate to inform court that the refusal of an accused
Page 199 of 382
to adopt a given option is against, his advice48. The accused may now give evidence on his own behalf. He may call his witnesses in the order in which he wishes, who are numbered PWI, PW2 etc. He or his advocate may examine the witnesses. The prosecution may cross-examine them. At the trial no alibi evidence can be adduced unless details thereof, and the names and addresses of any witnesses in support,thereof, were provided or given in writing to the court and the prosecution. It may only be allowed with leave of court reasons for which, shall be recorded (section 307(2)). Under section 308 the accused person shall be allowed to examine any witness not previously summoned to give evidence at the trial, if that witness is in attendance. Under section 309, whenever evidence has been given by the defence introducing new matter which the prosecution could not foresee, the prosecution may be allowed to call evidence in rebuttal. In Popat V R49, evidence in rebuttal was led by the prosecution after the accused had given evidence, but before all the defence witnesses had testified. The Court of Appeal held that,
"there may well be cases where it is in the interests of justice that some prosecution evidence should be led in rebuttal at the earliest opportunity. In any event, it was a matter of discretion for the trial court".
At the close of the defence, the parties may address the court. The respective rights of address by the prosecution and the defence may be confusing, and needs special emphasis. The issue was elucidated, by a strong bench of the East African Court of Appeal in Rex v Wamasuya s/o Bola50.
48 49 50
Oman V R (1956)23 EACA 580. (1950) 17 EACA 116 (1944) 11 EACA 56. Page 200 of 382
(Coram: Sheridan. Joseph (CJ-K), Norman Whitley (CJ-U) & Henry Webb (CJU). In the said case the appellant elected to give evidence but called no witnesses. After that, Crown Counsel claimed the right to address court. The court held that Crown Counsel was entitled, to sum up the case after the accused had given evidence and that then the advocate for the defence was entitled to address the court. It said that the effect of section 306(1) is that if, after hearing the evidence for the prosecution, the court considers that there is no evidence that the accused committed the offence, it shall hear the advocate for the prosecution then the advocate for defence, and shall then (if still of the same opinion) record a finding of not guilty. Section 306(2) deals with a situation where the court considers that prosecution evidence does disclose a case that calls for an answer, it shall inform the accused of his right:
(a) to give evidence (b) to make an unsworn statement (c) to call witnesses
and shall ask him if it is intended to exercise any of such rights. Section 306(3) states in part that if the accused person says that he intends to give evidence or make an unsworn statement or to adduce evidence, the court shall call upon him to enter upon his defence. Section 307(1) shows what is meant by the accused "entering upon his defence"; it says
"The accused person or his advocate may then open his case stating the facts or law on which he intends to rely and making such comments as he thinks necessary on the evidence for the prosecution. The accused person may then give evidence on his own behalf or make an unsworn statement and be or his advocate may examine his witnesses (if any), and after their Page 201 of 382
cross-examination and re-examination (if any) may sum up the case".
Section 306(2) is not, perhaps, quite so clear as it might be: its obscurity is, we think, due to the fact that it seeks to provide compendiously for two, or possibly three, different sets of circumstances. The first arises where, for example, the accused is content to accept the case for the prosecution as it now stands, but proposes to submit either that the facts proved do not establish the offence charged, or that the evidence for the prosecution has been shown by cross-examination to be unreliable, or that it is insufficient, say for lack of corroboration in a case in which the law requires corroboration. In that event, he will elect neither to give nor to call evidence, nor make a statement setting out his version of the facts. In those circumstances, the evidence being ex hypothesi finished, the sub-section says that the prosecutor must now sum up the case for the prosecution and then the accused, or his advocate, will enter upon which he intends to rely and making such comments as he thinks necessary on the evidence of the prosecution (307). The second set of circumstances arises when the accused, not accepting the version of the facts put forward by the prosecution, elects to give evidence himself but has no other evidence to call. In such a case, but for section 161, the procedure would have been that he, or his advocate, would open its case, he would give evidence and be cross-examined and re-examined, and his advocate would sum up his case (section 311). But section 161 says that giving of evidence by the accused person shall not give the prosecution (unless he is the Attorney-General or Solicitor-General in person) a right of reply. In our opinion the effect of this is that so far as regards the procedure governing the order of addresses; but only to that extent the case must be treated as if no evidence at all had been given. The procedure therefore will be that laid down by section 306 and 307: the court will call upon the accused to enter upon his defence (306(3)) i.e. his advocate will open his case Page 202 of 382
and the accused will give evidence and be cross-examined and re-examined. All that is altered is that now, by virtue of the last sentence of 306(3), the prosecutor will sum up the case for the prosecution and, finally, the advocate for the accused will sum up his case (307(1). In the third possible set of circumstances, when the accused, neither gives nor calls evidence but merely makes an unsworn statement the procedure will be the same save that, of course, the accused may not be cross-examined upon his statement. It is true that the code does not in terms provide for this eventuality, but if the fact of the accused, giving evidence does not deprive him of the last word, it is unreasonable to suppose that his making an unsworn statement (which is regarded as something less) would have- that effect. Similarly, the code fails to provide, expressly for the right of the prosecution to sum up when the accused elects to make an unsworn statement. Nevertheless the logical inference from section 306 is that the prosecution must have this right, for if the prosecution may sum up the case for the prosecution when accused elects not to exercise any of his rights; 'afortiori' he must have that right when the accused elects to avail himself of one of them and to make an unsworn statement, This is in accordance with the practice in England (See R vs Sherriff51 in which Darling J. held that the prosecution was entitled to sum all the evidence in the case after the prisoners had made unsworn statements from the dock, and that their counsel should then reply.
The correct procedure as summarized would be as follows;
A.
When the Court considers that there is no evidence that the accused committed the offence 306(1);
51
20 Cox Cr. C 334 Page 203 of 382
1. Prosecution opens 2. Evidence for prosecution 3. Prosecution sums up 4. Defence addresses
B.
When the Court Considers that there is evidence that the accused committed the offence 306(2);
1.
When an accused, elects to call witnesses and give evidence himself or make unsworn statement;
1. Prosecution opens 2. Evidence for prosecution 3. Defence, opens 4. Evidence or statement of accused 5. Evidence for defence 6. Defence sums up 7. Prosecution replies
II
Accused elects to call witnesses but not; to give evidence himself nor make an unsworn statement. (Procedure as in I but omitting 4)
Ill
Accused elects to give evidence or make an unsworn statement, but calls no witnesses 1. Prosecution opens 2. Evidence for prosecution 3. Defence opens 4. Evidence or statement of accused 5. Prosecution sums up 6. Defence replies Page 204 of 382
N/B: If Attorney-Genera] or Solicitor-General appear in person, 5 and 6 are reversed: Section 161. IV.
Accused elects neither to give evidence or make an. unsworn statement nor to call evidence
1. Prosecution opens 2. Evidence for prosecution 3. Prosecution sums up 4. Defence opens case N/B; If Attorney-General or Solicitor-General in person, 3 & 4 are reversed: Section 161. It will be noted, that the prosecutor has the last word in the second and fourth circumstances as above, but not in the first and third. In the case of Mbebi –v- R52, the prosecutor addressed the court at the close of the case notwithstanding that the defence did not call any witnesses. This was held by the Kenya Supreme Court to be contrary to section 161 and 310 of Cap 75. In R –v- Malakwen Arap Mute53, the Kenya Supreme Court held that:
"It is a mistake in procedure to allow the accused to give his evidence after he has called witnesses".
For the reason that as an accused person must be present in court during the whole of the hearing he should give his evidence first and not have the advantage, of listening to his own witnesses give evidence. This is the usual practice but it is submitted that the defence, should be given a discretion in such circumstances.
52 53
(1957)EA426. (1949) 23 (2) KLR 132 Page 205 of 382
I. SUMMING UP TO ASSESSORS In trials with the aid of assessors54, at the conclusion of the evidence and the address on behalf of the prosecution and the defence the judge may sum up to the assessors the evidence for the prosecution and the defence (section 322(1) Criminal Procedure Code). The Criminal Procedure Code uses the word "may" and therefore imposes no statutory obligation, on the Judge to do so; but this ought to be so. In Washington s/o Odinga -v- Regina55 the trial Judge did not sum up the evidence to the assessors or direct them on law. The court held that while there is no statutory obligation on the trial Judge to sum up the evidence to the assessors, it is a sound practice to do so except in the simplest of cases. It has been stated by Edwards C.J. in R v Bazilio Sentamu56 that in a trial with assessors all that the Judge may do is to sum up the evidence, and not bombard them with an elaborate lecture on common law but this view is not completely correct, for to be able to give a well reason opinion, the assessors would need a basic understanding of the relevant law. The better view is that furthered in Andrea s/o Kulinga v R57 to the effect that if a Judge chooses to sum up to the assessors, he ought to sum up both. the facts and the law in relation, to the facts. The court said:
"The opinions of assessors can be of great value and assistance to a trial Judge, but only if they fully understand the facts of the case before them in relation to the relevant law. If the law
54 55
56 57
(1957)EA426. The role of Assessors is discussed in detail in Chapter Twelve (infra). In 'this section the role of assessors is discussed only to the extent of giving clarify and completeness to the trial process in the High Court. (1954)EACA392. (1936.51)6 U.L.R 281. Page 206 of 382
is not explained and attention not drawn to salient facts of the case, the value of the assessors' opinions is correspondingly reduced”.
In the same case, the court held that failure to sum up is not necessarily fatal. A minor and non-material misdirection (in summing up) does not justify interference with conviction and is curable under section 382 of Criminal Procedure Code if it did not cause any prejudice to the accused: this was held in Mehar Singh Bensel V R58. In this case, the appellant, a surgeon, was convicted of manslaughter and appealed on grounds of alleged misdirection in. the summing up and the, irregular procedure of the trial Judge in formulating specific questions for the opinion of the assessors instead of taking their opinions on the case generally, which was contrary to [section 322] of Criminal Procedure Code and to natural justice. Also, in summing up, the Judge may direct assessors as to benefit of doubt being in favour of the accused, but an omission so to do is not fatal to a conviction - because the decision centres on the Judge and he must be presumed to know the relevant law59. However, a failure to direct the assessors as to any aspect of the defence has been held to be fatal to a conviction60 .
J. THE ROLE AND CONDUCT OF THE JUDGE & THE ASSESSORS Section 201 of the Criminal Procedure Code allows the Chief Justice to make rules prescribing the manner in which evidence shall be taken down in cases coming before the High Court. Such rules are to be found in The Criminal Procedure (Record of Evidence in the High Court) Rules61. These rules allow evidence to be taken as in Magistrates courts under sections 197, 198 and 199. 58 59 60 61
(1959)EA813. R vs Jack Jezelani (1947)14 EACA 70. Wafula s/o Waniamira v R (1957) EA 498. These rules were made pursuant to section 201 of Criminal Procedure Code Vide L.N. 344 of 1958 Page 207 of 382
The rules however provide that:
(i)
a judge of the High Court shall not be required to sign the evidence of each witness or to inform each witness that he is entitled to have this evidence read over to him;
(ii)
nothing therein shall derogate from the provisions of section 391 (which allows shorthand notes to be taken in trials before the High Court or Subordinate Courts).
In addition to proper recording, the judge must conduct himself properly at the trial and not be seen as partisan. In Lambert Houareau v R62, the trial judge put in some sixty eight (68) questions to the appellant and interrupted counsel during his examination-in-chief of the appellant. It was appealed, inter alia, that
(1)
the record of the trial was incomplete and did not contain all the evidence.
(2)
the judge took an undue part in the conduct of the case and, in consequence, the case for the appellant was not properly and fully put before the court.
The court held;
(i)
on the facts disclosed on the record, it was impossible for the court to say that: there had been a fair trial or that the appellant had a proper opportunity to put his defence to the court.
(ii)
if the course of a trial is such that the accused and his counsel are left
62
(1957)EA575. Page 208 of 382
with a reasonable feeling of grievance of this king, the trial has been less than satisfactory, and if the grievance is founded, on excessive interruptions and interventions by the court the rule that justice must be seen to be done has clearly not been observed.
For the undersstability of immense cross-examination of a defence witness from the bench, see also R v Cain63 and Jones v National Coal Board64. Further, and regarding conduct of a judge, Madan, Miller and Potter J.A had this to say;
"It is neither advisable for nor required of a trial Judge to prompt an accused person either to add to or to subtract from an unsworn statement made by him in court, in particular when the accused is represented by an advocate. The danger always is that the court, with the best of intentions and acting in the interest of the accused, by doing' so, may umwittingly become instrumental in leading the accused to making' an incriminating statement. The omission by the accused to refer to certain matters in his statement may be deliberate, and not necessarily an oversight65,
The actual nature and function of assessors in a High Court Criminal trial is not defined by the statute. In R v Gusambizi Wasonga66, the court observed that in the exercise of any functions of the assessors, the court is always to apply the test of what; is fair to an accused person, with regard to the cardinal principles of natural justice. It was here said dial the purpose of a judge to sit with 63 64 65 66
25 Cr. App.2 204 at 205, 1957)2 All E.R, 155 per Denning M.R. In Augustine Chebon A. Cherutich v R Cr. App No. 16 of 1982, (1948) 15 EACA65. Page 209 of 382
assessors is to consult with them in order to ascertain matters of local custom. Similar sentiments were expressed in Muhlikilikili Dhalamini & Others v R by Lord Atkin, he said:
"It must further be remembered that the provisions of giving the judge... the assistance of a native (read citizen) assessor cannot be regarded solely from the point of view of aid given to the judge. It operates, and no doubt it is intended to operate as a safeguard to natives (read citizens) accused of a crime and as a guarantee that their own customs and habits of life are not misunderstood67,
This emphasis on custom also features in the judgment of Bashyam Ayyangar J in King Emperor V Tirumal Reddi68. He said:
"... Assessors are analogous to expert witnesses... Thus it will be seen that provision was made ... for Europeans administering justice in foreign lands and therefore deficient in their knowledge of the custom and habits of the parties and witnesses... [to- have] the benefit of two or more respectable natives (read citizens) of the land as assessors possessing such knowledge... It will thus be appreciated that assessors opinion is really just expert opinion".
Customs no longer play the integral role that it used to play when we had native or African Courts. In any event, custom is hardly relevant to cases triable by the 67 68
(1942) A.C. 589. (1901 )ILR 24 Madras 523. Page 210 of 382
High Court, unless perhaps one brings the issue of witchcraft and claims grave and immediate provocation therefrom - in a charge, of murder. Yet even in such cases, such defence is hardly sustainable, Moreover, whether there is provocation or not would be a question of pure law for the Judge to rule on. Consequently, the view that assessors are mainly instrumental on questions of customs is at best archaic, and cannot justify having assessors in a criminal trial in the High Court. Their chief role then would be more to do with open justice and participation by the citizenry in the administration of justice. It is a salutary gesture to the adage of justice being done and being seen to be done. And in furtherance of their primary role; that they help the Judge arrive at justice, assessors are allowed to put questions to the witnesses through or with the permission of the Judge (section 174 of the Evidence Act). The assessors must be present throughout the trial. In Mohamedi &. Another v R69, the trial commenced with four assessors, and was adjourned to a date 9 months later. At the resumed hearing, only two of the original four assessors were present, and the trial proceeded with the two. In allowing the appeal, the court held that it was mandatory that a new trial be held if two or more of the assessors are absent. A trial conducted without assessors was declared a nullity in R v Abdulla Mali70. If one assessor is absent in the course of the trial, the trial may proceed with the other two. If, however, two or more are absent, a new trial must be conducted with the aid of fresh assessors (section 298(2)). In R v Assa Singh71, it was held that even if an assessor is absent merely for a day during which only evidence of a formal nature is given, he cannot resume and give his opinion on the case. Where an assessor is disqualified on grounds of personal interest, another must be selected to take his
69 70 71
(1973)EA 197. (1920-29)3. U.LR.51. See also R v Obau 15 K.L.K 107 & section 298 of Cap 75. (1937)4 EACA 41. Page 211 of 382
place. It was so held in Laurenti Busolo s/o Mukumba v R72', where it was said that:
"the words of section 298( 1) of the Criminal Procedure Code refer only to the physical absence of the assessor and cannot be extended to cases where, the assessor, though physically present and able to act is disqualified, from acting as an assessor by reason of special, circumstances such as personal interest".
K. JUDGEMENT AND SENTENCE For cases exclusively triable by the High Court, the death penalty is mandatory if the accused is found guilty. For that reason, evidence of previous conviction and/or mitigation is immaterial. As soon as it passes it's sentence - that the accused is sentenced to suffer death in a manner prescribed by law - if guilty, the court becomes 'functus officio'. But the court must, before rising inform the convict of the time within which he may appeal (section 330 of Criminal Procedure Code). Section 379 gives the basis upon which one may appeal.
The Criminal Procedure Code was amended by inserting an additional paragraph; victim impact statements which is defined as “a statement containing particulars of:-
(a)
in case of a primary victim any personal harm suffered by the victim as a direct result of the offence.
(b)
72
In the case of a family victim the impact of the primary
(1957)EA298. Page 212 of 382
victims death on members of the primary victims immediate family. Under Section 329 (c) of the Criminal Procedure Code a victim impact statement may be received and considered. if the Court considers it appropriate to do so at any time after it convicts, but before sentencing an offender. The court may also receive or consider a victim impact statement if the primary victim has died as a direct result of the offence from or given by a family victim.
However, the giving of a victim impact statement is not mandatory.
L. CONCLUSION Although it is clear that the substance of a judgment is fundamental, the form is important in lending credence to the substance of equal importance is the procedure leading to the delivery of the judgment which must be followed meticulously.
Page 213 of 382
CHAPTER TWELVE
ASSESSORS A. INTRODUCTION
The assessor system was retained after independence. The value of assessors was explained by Lord AA in Dhalamini –vs- King that; “... the duty of an assessor is not simply to aid, it operates and is no doubt intended to operate as a safeguard to natives accused of a crime and a guarantee to the native population that their own customs and habits were not misunderstood.”1
The assessor should occupy a central role in criminal justice, not only because what he says conforms more to the wishes of the community, but also because it is more acceptable to justice. The ambivalence pervading the assessor system has survived the rigours of independence. For example the legislature has unconsciously or perhaps intentionally left the actual role of an assessor in criminal trials undefined. The scantiness of the statutory provisions has left a large area of uncertainty which has been filled but only partly by the rulings of the courts over the year. In appreciating the procedural law as it relates to assessors, its propriety and place in the administration of criminal justice, various questions must be answered; viz:
(i)
Is the role played by the assessors adequate?
1
(1942)A.C. 583. Page 214 of 382
(ii)
If not do we abandon the whole system and replace it with the jury system?
iii)
If we are to retain the assessors, what role should they play in the criminal justice system and what reforms are necessary to facilitate this role, and
(iv)
Should the system be confined to the High Court or should it be extended to the subordinate Courts?
B. EVOLUTION OF THE ASSESSOR SYSTEM IN KENYA The initial stages of the evolution of the assessor system can be traced to the 1902 East African Order-in-Council. This order provided inter-alia that:
In all cases civil and criminal to which natives are parties every court, (a)
shall be guided by the native law so long as it is applicable and is not repugnant to justice and morality or inconsistent with any orders in council or ordinances or any regulation or rule made under any order in council or ordinance;
(b)
And shall decide all such cases according to substantial justice without undue regard to technicalities or procedure and without undue delay2."
The wording of this order left room for the Africans to participate in the administration of justice. The fact that the courts were to be guided by the native law meant that few competent Africans would be consulted to give their opinion on the matters in question.
Another line that can be followed in tracing this history is with British
2
East African Order in Council 1902 No. 31 Page 215 of 382
India3. The earliest [European] legislation which authorized European functionaries presiding in courts of sessions to constitute two or more respectable natives to assist them as assessors was Reg. VI of 1832 which applied only to Bengal. By the provisions of Act VIII of 1832, the system was extended to other places/parts of British Colonial Africa. The assessor system was introduced as a substitute for the more vigorous jury system. Following the failure of the jury system in the colonies of British West Africa, it was found necessary to introduce a system befitting the Africans (sic). The system had worked in British India and it was meticulously argued that there was no reason why the system could, not work among the natives of Africa. The 1897 Native Courts Regulation section 8 provided for the trial of an accused with the aid of assessors; the High Court could invite cooperation of native assessors with a consultative voice only for the purpose of fury information where required respecting native law and custom. This provision clearly indicates that appointment to sit and hear a case was purely discretionary. However, in 1907 following the inauguration of the Courts Ordinance, the following was enacted that;
"Except where otherwise expressly provided by law any person committed for trial to the High Council shall be tried by a Judge of the High Court sitting with not less than three assessors".
The word 'shall' according to the Interpretation of Statutes and General Provisions Act (Cap 2) means mandatory.
3
See King Emperor-vs- Trumal Reddi (1901) I.L.R 24 MADRAS 523. Page 216 of 382
This brief history forms the foundation of the system of assessors as we know it today.
C.
THE ASSESSOR SYSTEM AND THE JURY SYSTEM
In the eyes of the law an assessor is the epitome of the reasonable man, the 'man' in the street. This is only a restatement of a renowned colonialist E.W Park who said of assessors:
"... a person usually an expert in the subject matter under consideration who sits with the judge and assists him from his special knowledge.”4
This definition has been criticised but the critics stand corrected. The definition above does not literally mean that a person who serves as an assessor should be an expert in the strict meaning of the word. All it means is that the person who serves as an assessor should stand in such position as to know, not through severe intellectual exercise or by protracted thought, but by mere adaptation of the matter in question. It is for this reason that assessors are normally chosen from the ordinary people.
The role of the assessors should be seen from the perspective that they (assessors) ought to have their roles defined in very clear and straight forward terms. The English legal system has extolled the value of the jury system. Michael Zander5 quoted Lord Denning regarding the high esteem in which the jury is held in England;
4 5
A. E.W PARK in his treatise 'Sources of Nigerian Law' at page 8. Michael Zander; "A Matter of Justice: The Legal System in Ferment," Oxford, Oxford University Press, 1989 at p.210. Page 217 of 382
"... The Court of Appeal hardly ever interferes with verdict of a jury.”6
Zander has infact put it more lucidly that;
"The Jury system is strong because it has so many different virtues... The brief decision 'Guilty or Not Guilty' is also a way of reducing anxiety about the result of cases. It may be right or wrong but it inspires confidence in a way that a reasoned decision given by a judge cannot". "Over the years the jury has played a significant role in mitigating the harshness of the law and the system by its own form of equity and mercy7"
On the other hand, in other countries where the assessor system is used, Kenya included, they have stubbornly stuck to the colonial dogma that the opinion of the assessor is not binding on the judge which in effect has shut the mass participation in the administration of criminal justice. The present legislation was adopted from its colonial counterpart. The Kenyan 'independent' legislature has failed to consider the social-economic conditions under which the laws governing assessors were passed.
D. PROCEDURAL ASPECTS OF THE ASSESSOR SYSTEM The importance of the assessor in the discharge of justice cannot be overemphasized. The ends of justice shall only be conveniently arrived at if the assessors are taken seriously. This is infact recognized by the Criminal Procedure Code whose section 262 states that "all trials before the High Court 6 7
Ward -vs- James (1965)1 All ER 563 at 572 Michael Zander, Supra at 235. Page 218 of 382
shall be with the aid of assessors", the word “shall” make it compulsory for the High Court to sit with the aid of the assessors. A High Court's decision sitting without assessors will be reduced to a nullity. In Rex –vs- Yowasi8 it was held that a court sitting without assessors where they were required by law would be leaping the jurisdiction to try such cases. This was infact a restatement in the very words by the East African Court of Appeal in R -vs- Abdaka Mali9 and the court strongly reiterated their earlier statement that where a court sits without assessors where it should have done so, the trial is a nullity. The above is seemingly a very positive move towards the direction of recognising the central role of the assessors. However, this is watered down by section 322 of the Criminal Procedure Code which provides that the judge, in giving his verdict, shall not be bound to conform to the opinion of the assessors. This in effect means that the judge can ignore the opinion of the assessors.
Sir Henley Cousley, a prominent colonial judge in Ghana has argued that the ends of justice are adequately catered for in that although a judge is not bound to accept the opinions of the assessors, he has the duty to sum up to them10. With the greatest of respect, these sentiments betray the intentions of the learned judge. It is no stretch of imagination that since the official language of the Court is English, only a few will understand and likewise even fewer will qualify to serve as assessors. Even for those who can understand English they have an additional problem. The lawyers' language is unfamiliar to them and the legal jargon leaves them more mesmerized than informed. Why then should one expect a rational assessment from a set of facts that have not been understood? It can therefore be asserted that the present system caters for 'spectators' and not assessors as contemplated by its originators.
8 9 10
(1939)6 E.A.C.A 126. (1921) 3 U.L.R 51 The Receiver, (1954)14 West African Court of Appeal 501. Page 219 of 382
E. SELECTION OF ASSESSORS In Kenya, the law provides that all persons between the ages of twenty-one and sixty years are eligible to serve as assessors11. Unlike the jury system, eligibility does not provide for any literacy or property qualifications (under the jury one should own property). The once cherished notion that assessors should come from the same place as the accused has long been dispensed with and for good reason. Given that customary law has been hacked to near nothing by section 3(2) of the judicature Act, and that it has been replaced by English law, the need to have the assessor coming from the permanent domicile of the accused can safely be abandoned. But the Chief Justice has discretionary powers to make rules pertaining to areas within which a person may be summoned to serve as an assessor and he also has inherent power to regulate the selection and summoning of assessors12. The fact that assessors should be common people is amply demonstrated by the exclusion of certain categories of persons from serving as assessors. Section 266 excludes the following persons from serving as assessors;
(a)
the President and Members of the Cabinet,
(b)
the Speaker and Members of the National Assembly,
(c)
the Clerk of the National Assembly, and persons appointed to act as official reporters to the National Assembly,
(d)
persons actively discharging the duties of priests or ministers of their respective religions,
(e)
physicians, surgeons and apothecaries in active practice,
(f)
legal practitioners in active practice,
11
Section 265(9(1) Criminal Procedure Code (Cap 75). Section 265(2) Criminal Procedure Code (Cap 75).
12
Page 220 of 382
(g)
officers of the armed forces,
(h)
members of the police force,
(i)
persons exempted from personal appearance in court under the provisions of the Civil Procedure Act13,
(j)
persons disabled by mental or bodily infirmity,
(k)
other persons exempted by the Attorney-General from liability to serve as assessors.
Pursuant to section 266(K) above and via L. N. No.345 of 1962, an additional list of persons exempt from assessor service is as hereunder:
(a)
Permanent Secretaries.
(b)
Managing Director, Kenya Railways Corporation
(c)
Managing Director, Kenya Posts & Telecommunications
(d)
Officers engaged in the administration of justice including Magistrates, officers of the Judicial Department and of the Office of the AttorneyGeneral, the Principal Probation Officer and Probation officers.
(e)
Officers of the Prisons Department, the Chief Inspector of Approved Schools and officers on the staff of approved schools.
(f)
Dentists in active practice.
(g)
Consular offices de carriere and consular employees.
(h)
Mayors, Chairman of County Councils, town clerks to County councils.
The summoning of assessors is guided by sections 269 - 273 of the Criminal Procedure Code.
The law requires that the Registrar of the High Court, at least seven days before 13
Cap 21 Laws of Kenya (Civil Procedure Acts). Page 221 of 382
the day which may from time to time be fixed for the hearing or the holding of a session of the High Court, do send a letter to a Magistrate holding a subordinate court of first class having jurisdiction in the province or the district in which such sessions are to be held requesting him to summon as many persons as possible to the judge who is to preside over the session needed for trials with the aid of assessors at the said session14. The judge is to select three out of those summoned to serve as assessors as required by section 263 of the Criminal Procedure Code. The assessors are to be summoned in writing and their attendance required in the summons to be at a stated place and time 15. The High Court may for a reasonable cause excuse an assessor from attendance at any particular session and may at the conclusion of the trial direct that an assessor who served at such trial shall not be summoned to serve again as an assessor for a period of twelve months or for such longer period as the court deems fit16. The above shows that there is no limitation for the period in which a person may serve as an assessor. It is possible that one may continue service for as long as the court wishes. The risks inherent in such a provision need no emphasis. By continuing to serve as an assessor, a person ceases to be a common man. By adaptation and out of long stay in the court he becomes adequately showered with virtues similar to those of the judge. More serious is the fact that he becomes more susceptible to corruption.
It is noteworthy that if one who has been summoned to serve as an assessor fails to attend without reasonable cause, he is liable to a fine 'not exceeding four hundred shillings’17. Not all persons summoned to serve as assessors qualify to serve. There may be 14 15 16 17
Section 269 Criminal Procedure Code (Cap 75). Section 270 Criminal Procedure Code (Cap 75). Section 271 Criminal Procedure Code (Cap 75). Section 273 Criminal Procedure Code (Cap 75) Page 222 of 382
preliminary objections on the ground that an assessor knew the facts or that he is related to the accused or to the complainant. There is no express provision in the Criminal Procedure Code requiring that an accused be given a chance to object to any of the assessors from so serving but it was stated in Ndirangu –vsR18 that objection to a particular assessor on good grounds is clearly a sound practice. The appellant in this case was convicted of murder. Throughout the trial he chose to remain mute and took no part whatsoever in his trial. On appeal he argued that the wife of one of the assessors at his trial was the sister of the deceased's wife and he complained that this had prejudiced him. The court concerned itself with grounds on which the objection to an assessor is made. If an injustice will be occasioned by an assessor sitting with the judge, such a ground is feasible and he should be dismissed. The proper course to be taken when objection has been taken by an accused was discussed in the case of Andiazi –vs- R19. The trial judge should inquire into the allegation in a kind of trial within a trial. If he finds that the complaint is unfounded he may order the trial to proceed. If the complaint is valid he should adjourn the hearing to pave way for another assessor to be summoned. A yearly list is made which shows the names and addresses of assessors. Where a session which requires assessors is to begin, the assessors must always be there20. In Kenya past experience shows that assessors chosen for trial were of the same ethnic group as the accused. This rule has been relegated to the periphery except in cases of provocation where the assessor should come from the same ethnic group as the accused21. The court has the discretion to discharge any assessor who has been objected to or any assessor who admits that he is related to the accused or knows the facts or is in any way connected to the accused. 18 19 20 21
(1959)EA875. (1967)EA813. Section 262 Criminal Procedure Code (Cap 75). As per Ainley CJ in R -vs- Wilkin (1964) unreported. Page 223 of 382
Admittedly, the law on this subject is not adequate. But there should be penal provisions for those assessors who knowing the facts refuse to disclose so during or prior to the trial. Under section 265(2), the CJ is given a discretion to make rules regulating the area within which a person may be summoned to serve as an assessor and also power to regulate the selection of assessors. No such rules have been made so far. For that reason a judge's discretion in selection is absolutely unfettered, and although it must be exercised judiciously, failure to take into account the race of the accused cannot be said to be an improper exercise of that discretion. That was the ruling in the Republic -v- W. Y. Wilken22. In the said case, the accused was charged with murder of an African by confining him in a box with insufficient air until he could be handed over to the Police. Counsel for the accused objected to the Panel of Assessors submitting that the practice of selecting assessors of the same race as the accused should now extend to the accused. He submitted further that the judge should exercise his discretion in the accused person's favour as the court will always apply the test of what is fair to an accused person keeping in mind the principles of natural justice. The court observed in dismissing the objection that although the practice had been to try Asians with the aid of three Asian Assessors and Africans with the aid of three African assessors,
"all this has not conferred upon an accused of any race the right to be tried with the aid of assessors exclusively of his own race, nor has it, to my mind, established a principle that it is necessary just and essential that a man should be so tried. It would be wrong, I think that any such principle should be established... Certainly I think the Judge's powers of selection should not be
22
(1965)EA286 Page 224 of 382
governed or fettered by considerations of race.”23
It was thus ordered that the panel comprise two Europeans and one African as selected earlier.
Having summoned assessors and none having been disqualified under any of the foregoing grounds, the Judge shall select three from the list of those summoned in accordance with sections 263 and 297 of the Criminal Procedure Code.
The Remuneration of assessors is dealt with under the Criminal Procedure (Remuneration of Witnesses and Assessors) Rules enacted through Legal Notice No. 474 of 1963. For assessors who are public officers they may be paid such reasonable out of pocket expenses as he may have incurred other than those payable from departmental vote in accordance with the regulations obtaining at the time. For those who are not public officers, their reasonable travelling and out of pocket expenses as ordered by the Court will be paid.
F.
THE ASSESSOR IN COURT
The actual nature and extent of the functions of the assessor in criminal trials in Kenya is not adequately if at all, defined by the statute. However, courts have tried to fill in the gaps left by the legislature and in the Gusambizi Wesonga Case24 the court observed that in the exercise of any functions of assessors, the court is always to apply the test of what is fair to an accused person keeping in mind and considering the principles of natural justice.
23 24
Ibid at Pg. 288 (1948) F.A.CA 65. Page 225 of 382
The session should start with three assessors but the absence of one does not necessarily invalidate the trial. For example in Assah Singh -vs- R25 the appellant was tried for attempted arson and convicted by a judge sitting with three assessors. During the trial one of the assessors was absent for one day during which only evidence of a formal nature was taken, he then resumed attendance and was present for the remaining period and gave his opinions with the other assessors which was accepted. At the end of the hearing and within the ambit of section 322 the judge may sum up the evidence for the prosecution and for the defence and whereupon he will require each of the assessors to state his own opinion orally. The word "may" makes it discretionary on the judge to sum up the evidence yet it was infact well stated in Washington s/o Odindo -vs- R26 that it is very sound practice which is almost invariably followed by the judges except in very simple cases to sum up for the assessors. Going by the authority of Andrea Kulinga –vs- R27 the rule is that if a judge chooses to sum up to the assessors he must sum up both the facts and the law. The court further observed: "The opinion of the assessors can be of great value and assistance to a trial judge but only if they fully understand the facts of the case before them in relation to the relevant law. If the law is not explained and attention not drawn to the salient facts of the case, the value of the assessors’ opinion is correspondingly reduced".
Further, a positive misdirection to the assessors will lead to a conviction being quashed. This was settled in Wafula -vs- R28.
25 26 27 28
(1937) 4 E.A.C.A 41 (1954) 21 E.A.C.A. 392 (1958) EA 684 (1957) EA 498 Page 226 of 382
The statutory provision is that assessors are to give their opinions orally and individually. In practice such opinions should be given in open court. Since the credibility of the assessors' opinion depends on reasons behind it, it has been required that the assessors should give reason or reasons for their opinion. This was in the case of Paulo Lwevola -vs- R29 where it was said that the reasons for the opinion become even more relevant if the case goes on appeal. Although section 322(1) requires a judge to record the opinion of each assessor, the Court of Appeal in Francis Muzungu –vs- R30 held that the irregularity of a judge in failing to take the opinion of each assessor is not fatal unless it has occasioned a failure of justice.
It is desirable that the judge should record his reasons for disagreeing with the unanimous opinion of the assessors particularly where they have given good grounds for their opinions. This was stated by the East African Court of Appeal in Baland Singh -vs- R.31
Sometimes a discharge of one assessor during hearing on the ground of personal interest may render the trial a nullity. In Laurenti -vs- R32
the
appellant was convicted of murder by the Supreme Court of Kenya and he appealed against his conviction. During the trial it came to the notice of the court that one of the assessors had taken part in a search instituted by police for articles which might become real evidence at the trial and was present when a spear shaft and 'a panga' were found. The assessor concerned was thereupon discharged and the trial proceeded with the other two assessors. It was held that the absence of an assessor or disqualification due to personal interest or such other special circumstances annulled the trial. The trial was a nullity because of 29 30 31 32
(1943) 10 E.A.C.A. 63 (1958) E..A 192. (1954) 21 E.A.C.A 209 (1957) EA. 298 Page 227 of 382
proceeding with only two assessors, the one having been disqualified on account of personal interest. A retrial was ordered. It is not fatal if the assessors consult before giving their opinion. Section 322(4) allows for such consultations. This has been subjected to the scrutiny of the court in Abdalla Omar -vs- R33. In this case, it was stated that there is nothing wrong against the retirement of assessors for consultation. The court noted that the practice is frequent in East Africa. It followed its earlier decision in R -vsMungu Atosha34 in which it was held that the retirement of assessors is neither illegal nor irregular if after the retirement the judge obtains the individual opinion of each assessor and records it. In the Abdalla Case, the court stated: “
... we think that there is nothing wrong in principle against the
retirement of assessors for consultation. This is a frequent practice throughout the Eastern African territories in at least thre of which it has statutory sanction.”35
The opinion of the assessors should be taken on the general question of whether the accused is guilty or not guilty as charged. The desirability of obtaining such opinion was expressed in Selemani s/o Ussi -vs- R.36 The accused were tried and convicted for murder. The assessors gave their opinion and did not state nor were they asked to state specifically whether they considered the accused guilty or not guilty as charged. On appeal, though this point was not the basis of the appeal, the Court of Appeal noted that in addition to any other answers which may be given, each assessor should state specifically whether he considers the accused person to be guilty or not guilty on each count on which he is required
33 34 35 36
(1958) EA725. (1938) EACA 143. (1958) EA 725 at 728 para. E. (1963) E.A. 442. Page 228 of 382
to state his opinion. In Lamututu Mokalya –vs- R37 the opinion of the assessors was not taken on the general issue as to guilt or innocence of the accused. It was said that when the opinion of assessors is taken in the form of answers to specific questions they must also be asked to state their opinion on them as a whole and on the general issue as to the guilt or innocence of the accused. However, questions to assessors should be confined to matters on issues peculiarly within their knowledge and must be given an opportunity to express views on the case generally.38
Although it is required that assessors should sit throughout the trial, they must be absent during "a trial within a trial". The rationale behind this is that the assessors are common men and should only hear that which is strictly necessary and should avoid any circumstance that may tend to create any bias.
G. OPINION OF ASSESSORS After the summing up the Judge shall then require each of the assessors to state his opinion orally and shall record each opinion. The case of Mehar Singh Bansel39 is authority that while section 322 mandates the Judge to take the opinion of the assessors generally on the case as a whole, there is no objection to specific questions being put to the assessors either before or after a general opinion on the case has been obtained. If they so wish, the assessors may retire for the purpose of considering their opinions and there is nothing to prohibit them from consultation during such retirement.40 When the assessors give their opinion, it is desirable that they state their reasons.41 The Judge is not bound to
37 38 39 40 41
(1958) EA 706. Rajabu Jalum -vs- R (1965) E.A 365. (1959)EA813. Abdullahi All vR (1958) EA. R v Paulo Lwerola (1943)10 EACA 63. Page 229 of 382
accept their opinions42. Where the assessors' opinion is divided, the Judge decides the issue according to his own view, according each opinion due weight and explaining why he adopts a given view.
Section 322(1) does not mandate assessors to give their opinions in open court. All it does require is that such opinion be given orally and individually43. However, it is submitted that there is much to commend the practice of giving opinion in open court. In the Privy Council decision of Mahlikilili Dhalamini & Others, the assessors gave their opinions in chambers. It was held that assessors must give their opinions in open court: much as a Judge is required to 'give' his judgment and deemed required so to do in open court so should assessors "give their opinions'. By virtue of section 261 of Criminal Procedure Code which requires the practice of the High Court to be assimilated as nearly as possible to the Courts of Oyer and Terminer and General Gaol Delivery in England that should be the law in Kenya. If the opinion of assessors is recorded in the form of specific answers to specific questions in accordance with the decision in Mehar Singh Bansel, they must also be asked to state their opinion on the case as a whole and on the general issue as to guilt or innocence of the accused person44. And even after such opinion is taken, a judge has power to hear additional evidence before judgment; in such cases the opinions of the assessors can be taken again.45 After each assessor has stated his opinion, the Judge is required to give his judgment; but in so doing, he is not bound to conform to the opinions of the assessors. But in all cases where a trial Judge comes to a contrary finding on the facts to the opinions unanimously shared by the assessor, it is good practice for
42 43
44 45
Habib Kara Vesta v R (1943)1 EACA91. In Francis Juma Misingu. v R (1958) FA 192, it was said that the irregularity of not taking each opinion separately is curable unless it has occasioned a failure of justice. Washington s/o Odindo v R (1954) EACA 392. Mulaba Mugeni v R(1964)EA 518 Page 230 of 382
the Judge to state in his judgment his reasons for disagreeing with them46. This is all the more important where the assessors have given reasonable grounds for their opinions.47
H. ASSESSORS AS EXPERTS
That assessors' opinions are non-binding on the Judge begs the question. Are assessor's opinions (therefore) no less or more than expert opinion as has been argued?
In English law assessors imply expertise. The English Court of Appeal has power to appoint any persons with 'special expert knowledge' to act as an assessor where it appears to the court that such special knowledge is required 48. In the Kenyan and East African context, we have seen cases decided by Judges who have viewed assessors as no more than experts on matters of customs and habits:- thus their presence in a criminal trial. This, as pointed out earlier is a fallacious position because it was relevant in colonial days, was argued that opinion of assessors are not admissible 'per se' as they are no more than expert witnesses49. In R v Ndambere50 the court held that since an assessor talking on a custom speaks as an expert, he must be cross-examined otherwise an accused may be denied of the only opportunity to reassert his innocence. The contrary view to this is furthered by R v Mutwiwa51 which holds that since the opinion of an assessor on custom does not bind a Judge, there is no need for crossexamination or evidence in rebuttal.
46 47 48 49 50 51
R v Mwi'la (1948)15 EACA 128. Baland Singh v Reg (1954) EACA 209. See Douglas Brown 2nd Ed.(ante) at Chapter 19, Professor A. N. Allot in 20 M.L.R. Pg 250 furthers this position. (1947)14 EACA 85. (1935)2 EACA 66. Page 231 of 382
For all it was worth, the status of assessors as experts has waned. It was important in the pre-independence period when custom was an integral part of Criminal law, and when the view on custom as proffered by assessors almost always carried the day. Then, and for that reason, assessors' opinion as to a matter of custom would justifiably occasion friction. Not so now. The purpose of trial with assessors has in itself changed and their opinion on custom is not called now. The issue of expertise or otherwise does not arise, for what expertise is for in a treason or murder trial? Therefore, we cannot treat our assessors as experts as in England and the pre-independent Kenya.
1.
EVALUATION AND RECOMMENDATIONS
The role played by assessors ought to be a noble one of aiding the court. However, one sees from the cases decided with their help that the system is far below the expected standards. Very often the judges disregard the opinion of the assessors and proceed on the basis that the opinion of the assessors is not binding on them. The procedure of selecting the assessors is also haphazard. There is a gradual inclination that the concept of English type of justice is well entrenched here and that all the people are conversant with it. This is not the case. For example analysis of Paul Ekai -vs- R52 reveals the shortcomings. In this case, two of the assessors were of the same ethnic group as the accused while the third was an American. The presiding judge, Muli -J- found the accused guilty of murdering Joy Adamson. The Two Turkana Assessors found him not guilty while the American found him guilty. The judge would have well quoted Thacker -J- in the Ogeda Case53 where the learned judge in this rape case stated:
52 53
Crim. App No. 15 of 1981. (1941) 19 K.LR 25 Page 232 of 382
"Each of the assessors returned an opinion of not guilty and I suspect that the opinions are based not upon evidence they have heard but upon inter-tribal prejudices... I deplore their opinions
which
are
either
a
result
of
stupidity
or
pervasiveness."
The above entitlements cannot be viewed as utterances of a biased judge. They are part of a given socio-economic superstructure where one class lives under the control and influence of another class. This is the type of superstructure that Kenya inherited and it is the same that is jealously sought to be maintained. This system insists that the Africans' concepts are medieval and this has led to the content being slowly assimilated to the regrettable province of neocolonialism. The prejudices expressed above are not confined to Kenya alone. They occur and recur in other African Countries. A case in point in Uganda is Mutwalumbi Bukuli -vs-Busoga54 where while commenting on the opinion of the assessors, the learned judge without fear had this to say:
"The reason is not that they did not see the facts; but both assessors are not worthy the name of assessors as they think in religion than in Justice".
The contradiction underlying the assessor system is only a reflection of the inherent flaws in the entire system. Piecemeal reforms may not give the desired effects and an overhaul of the system with various reforms should be worked out. This will probably be formulated to accommodate some of the following points. 54
(1964) EA 713 Page 233 of 382
J. A CASE FOR REFORM
1)
The system is characterized by the "give and take" practice. For instance the requirement that all trials before the High Court shall be with the aid of assessors is very welcome. However, when the same statute provides that their opinions are not binding, their practiced role is devalued. This "give and take" philosophy renders the workings of the system not only a mere sham but a sickening illusion.
2)
The time for which one can serve as an assessor should be stipulated and well limited so that the person is an actual assessor. Where one person has served as an assessor for many sessions, he no longer represents the reasonable man in the 'omnibus', but is now a semi-professional or even a professional in the law and practice and well equipped with the 'virtues inherent in the bench’.
3)
That Magistrates also sit with assessors because this is where most cases are handled.
4)
There should be a statutory requirement that the assessors should be men (and women!) of some formal learning so that they are not confused and bewildered, by the lawyers' language.
5) The legislature should reform the present legislation so that the role of assessors is clearly redefined taking into account the Kenyan situation both social, economic, and political as contradistinguished from the colonial experience when legislation was adopted. In a nutshell the system should be overhauled to give it practical relevance and currency. Page 234 of 382
There is a bill in Parliament which proposes to amend the Criminal Procedure Code so as to abolish the sytem of trial with the aid of assessors in the High Court in order to ensure speedy, efficient, cost effective and fair trial in accordance with the present day conditions in Kenya.
Page 235 of 382
CHAPTER THIRTEEN
PROCEDURE IN CASES OF INSANITY
A. INTRODUCTION
The rules regarding the procedure in cases of insanity cannot be discussed exhaustively without reference to the English background. Indeed, the McNaughten rules which have become part of the criminal law lexicon have their genesis in English Law Criminal Jurisprudence.
The word 'insanity' was formerly a part of scientific nomenclature but today the word is employed principally as a term of legal significance. So used it denotes those conditions of mental disorder or defects which modify certain of the legal relationships, rights and obligations of the afflicted person. The legal relations, rights, privileges and obligations of persons assume the existence of a degree of mental capacity sufficient to enable the person to manage his conduct and affairs in the ordinary contingencies of life. When such capacity is lacking by reason of insanity, the law relieves the insane person of certain obligations and responsibilities both in criminal and civil law. Thus there is no single test of insanity and therefore reference must always be made to the particular purpose for which the inquiry is made. This explains the fact that even in respect of the same rule, legal authority is sometimes sharply divided. Due to the centrality of insanity with regard to criminal responsibility, the Criminal Procedure Code provides the procedure to be followed when insanity is in issue. Insanity ought to be understood in two facets. The first one is when it is alleged as a defence, that is, the person was insane at the time of the act which now constitutes the offence. The second is what has been termed in other jurisdictions as procedural insanity, that is, where the person, though sane at the time of the act, no longer Page 236 of 382
enjoys the same degree of sanity to such an extent as to render him incapable of understanding the charge and or making his defence. The two facets are not always separable. At times, a person's insanity persists all the way from commission of the crime to the time of the trial. With the above in mind, it is necessary to mention in passing the strength of the issue of insanity as understood from our laws before delving into the substantive discussion.
Section 77(1) of the Constitution requires that every person accused of a criminal offence be afforded a fair hearing. It further provides that the person be made to understand the charge1. The Criminal Procedure Code at section 207(1) requires that the charge be read and explained to the accused so that he can be able to make his defence. As understood from our statutes a fair hearing embodies a clear understanding of the proceedings. If the accused is insane, he cannot be said to understand the proceedings or the trial, and this contravention of the Constitution would annul any trial of this nature.
It is against this background that the procedure in conducting this trial where insanity is an issue must be predicated.
B. PROCEDURE IN CASE OF LUNACY OR OTHER INCAPACITY OF THE ACCUSED PERSON
The procedure to be adopted when the issue of insanity arises in the course of a criminal trial is provided by the Criminal Procedure Code under sections 162 – 167. The code requires that when in the course of a trial or committal proceedings the court finds that an accused person is of unsound mind thereby incapacitated
1
Constitution section 77(2) (b) 1998 (1992) Text. Page 237 of 382
from making his defence, it shall inquire into the fact of unsoundness of the accused's mind2. Should it come to the conclusion that he is of unsound mind, it has to postpone further proceedings. Bail may be taken, but on condition that there is enough security. However, if the offence is one for which bail may not be given or there is insufficient security for the insane, the court is to order that he be detained in safe-custody and make a report thereof to the Minister for consideration by the President. Once such a report is made, the President upon considering it may order that the accused be detained in a mental hospital or any other place he deems suitable. The court is to issue a warrant to that effect and such a warrant is enough authority for the detention of the accused until the President makes a further order in the matter. However, the court which found him incapable of making his defence may recall him as provided by the Criminal Procedure Code3. It is not only under section 162 that a person may be detained. Section 280 (of the Criminal Procedure Code) provides that if an accused person, having been arraigned upon an information stands mute of malice, the court will enter a plea of not guilty and thereupon proceed to determine whether his mind is sound or otherwise. If found to be of sound mind the case should continue but if his mind is unsound and he/she is consequently incapable of making his defence, the trial is to be postponed and the accused detained in safe custody and a report forwarded to the President for consideration.
The custody in which the accused person is to be detained must be a mental hospital and his condition must be monitored by a medical officer in charge. When such an officer is of the opinion that the accused is in such an improved state of mind as to be able to make his defence, he is required to forward a
2 3
Section 162(1) Criminal Procedure Code (Cap 75) Section 162(3) Criminal Procedure Code (Cap.75) Page 238 of 382
certificate to that effect to the Attorney-General4. This is done for the purpose of enabling the court which had made a finding of the unsoundness of mind to be advised whether the Republic wishes to continue with proceedings against that person or not5. If the State wishes to continue with the proceedings the person is brought before the court in which case section 164 applies as discussed below. It must however be noted that if the State does not wish to continue with the proceedings against the accused, the court is to make an order to the effect that the accused person be discharged in respect of those proceedings. This discharge is not to operate as a bar to any subsequent proceedings against him on account of the same facts.
C.
RESUMPTION OF PROCEEDINGS
After the postponement of a trial the court may resume such trial if it is proved to the satisfaction of the court that the accused is capable of making his defence. The certificate forwarded to the Attorney-General under section 163 may be tendered in evidence to show the accused's state of mind, but it must be signed by the medical officer.6
The defence of lunacy may be adduced at a trial. If the defence is adduced at the time of the committal proceedings and the accused appears to be of sound mind at that time, the court, notwithstanding the fact that it is alleged that the accused was insane at the time the act which is now charged was committed, shall proceed with the proceedings and commit him for trial.7 What this means is that lunacy at the time when the offence was allegedly committed is no bar to the continuance of the committal proceedings provided that the person is sane at the 4 5 6 7
Section 163(1) Criminal Procedure Code (Cap.75). Section 163(2) Criminal Procedure Code (Cap.75). Section 164 Criminal Procedure Code (Cap 75). Section 165 Criminal Procedure Code (Cap 75). Page 239 of 382
time of the committal proceedings.
In like terms, if the defence is adduced at the trial to the effect that although the accused person is presently sane he was insane at the time when the act charged was committed, the court is by virtue of section 166 (Criminal Procedure Code) supposed to make a special finding that he is 'guilty but insane'. That is done only when and if the evidence so adduced would have warranted a conviction but for the insanity. This special finding of guilty but insane forms another topic of discussion later.
The procedure to be followed once such a finding has been made is also outlined in the Criminal Procedure Code, but it is important before going into it to consider how courts have exercised their role in not only interpreting but also applying the law with regard to the special finding. A case in point is R -vsSaidi Kabila Kiunga.8 The accused was charged with unlawful wounding contrary to section 228 of the Tanzanian Penal Code and was found guilty but insane so as not to be responsible for his actions. The accused said he did not know anything to the effect that he committed the said offence and said he was out of his senses. On revision, it was ruled that the evidence regarding the accused's insanity did no more than raise a doubt as to his sanity at the time of the act, but it fell short of establishing a margin of profitability on the side of insanity. Further, it was held that when a person is insane but found to have committed the offence, a special finding that is neither a conviction nor an acquittal is passed; guilty but insane. However, the finding of the lower court was set aside on account of various irregularities in the evidence. Spry -J- said inter alia that the accused;
8
(1963) EA 1 Page 240 of 382
“... must show, on all evidence, that insanity is more likely than sanity, though it may be ever so little likely. Merely to raise a reasonable doubt might still leave the balance tilted on the side of sanity.9"
The burden of proof is on the defence since the law presumes sanity of the accused until the contrary is proved.
The issue of insanity as relates to fitness to plead has also received judicial attention. The case of Kaplolwa s/o Tarino -vs- R10 as discussed below is germane as it gives insight into the procedural law of fitness to plead and at the same time clothes it with substantive legal considerations. In this case the appellant was charged with murder before the Supreme Court of Kenya. When arraigned, the question of his fitness to plead was considered and medical evidence was called showing that due to senility and hardening of the arteries of the brain, the appellant at times appeared to be wanting, but would be capable of understanding the nature of the charge in his more lucid moments. The trial judge found that the appellant was fit to plead and subsequently in his judgment, held that a cautionary statement made by the appellant was given months before the trial confirmed the finding that the accused was fit to plead had been correct. The trial judge convicted the accused of murder and sentenced him to death. On appeal, the question of the appellant's fitness to plead was considered. The Court of Appeal at Nairobi presided over by Sir Kenneth O'Connor, Briggs and Forbes JA made the following ruling:
i)
that since the cautionary statement relied on by the trial judge was made more than five months before the trial, it afforded little, if any, evidence of the appellant's mental condition at the time of the trial;
9 10
Ibid at p.2 para (1957) EA 553. Page 241 of 382
ii)
that the point for determination for the trial judge was not whether the appellant was sufficiently sane to appreciate the charge, but whether at the trial he was of unsound mind and consequently incapable of making his defence; and
iii)
that since there was nothing in the evidence to show that the appellant at the time of his trial was enjoying one of his more lucid moments, and since the trial judge did not consider whether he was capable of making his defence the conviction must be set aside.
The above case is important for two main reasons. First, it shows that it matters not that the accused person was sane when he committed the offence if the contentious issue is fitness to plead. What is important is his mental state at the time he is on trial. Insanity at the time of committing the offence is of little significance in answering questions of fitness to plead. The second point that can be drawn from the case is that the sanity required for one to be considered fit to plead goes further than that of merely being able to understand the charge. The sanity must go beyond this and be sufficient to enable him to make his defence. If he is of such insanity as to render him incapable of making his defence, a conviction based on such a trial must be quashed on appeal.
Another case in which the procedural requirements as relates to insanity have been considered is R -vs- Anyelwisye Undule11. The Magistrate, in this case, after the hearing of medical evidence concluded that the accused was fit to stand trial. At the end of the prosecution case the Magistrate decided that the
11
(1965) E.A. 451. Page 242 of 382
accused was unfit to make his defence because of unsoundness of mind. He found that the accused committed the offence as charged but that he was guilty but insane. He ordered the case to be reported to the President and remanded the accused in custody as a criminal lunatic. On revision, it was held inter-alia that the Magistrate having found that the accused was unfit to make his defence after pleading due to mental disturbance should have postponed further proceedings. This particular aspect may be taken to indicate the Kenyan position; which position is given by section 162 of the Criminal Procedure Code.
Other jurisdictions have also considered the question of fitness to plead when the issue of soundness of mind is not agreed upon. Sometimes, the question of fitness to plead may be raised and determined as a preliminary issue. The English case of R -vs- Beynon12 focuses on the issue. B was charged on an indictment for murder. On his arraignment and before he pleaded, counsel for the Crown applied that the issue of fitness to plead to trial be dealt with as a preliminary issue. Counsel for B objected to the empanelling of a jury to try that issue submitting that unless the law compelled the court to deal with the issue of insanity, natural justice required that the general issue should be tried first. It was held (NOT following R –v- Roberts13 ) that the law had always been that an insane person could not be tried and if the court is aware of the fact that there was a preliminary issue whether the person charged was insane, so that he was unfit to be tried, it was the duty of the court to see that the issue was tried before the general issue even though no application was made by the prosecution or defence.
12 13
(1957) 2 WLR 956. (1954) Crim. Law Reports 20. The Case of R v Robert had dealt with the issue of earlier albeit differently. Page 243 of 382
Another case which ought to be considered is R –vs- Podola.14 P was convicted of capital murder. At the trial the preliminary issue was raised as to Podola's fitness to plead, and on this issue P relied solely on an hysterical amnesia preventing him from remembering events during the whole of the material period. The trial of the preliminary issue was dealt with at two stages. In the first stage the jury was required to answer the specific question whether P was then and at the material times suffering from a genuine loss of memory; the jury found that he was not. In the second stage the jury was required to find whether P was insane so that he could not be tried and the jury found by direction, that he was fit to stand his trial. He was then tried and convicted of murder. The case was referred to the Court of Criminal Appeal on the question whether the onus of proof of unfitness to plead was on the defence or the prosecution. The court started by saying that an appellate court had jurisdiction to hear an appeal from a convicted person against his conviction on the ground that the hearing of the prelimilitary issue was open to objection for error of law so that he should never have been tried upon the substantive charge at all. The Court of Criminal Appeal further held that in all cases where the preliminary issue as to the accused's insanity was raised the jury should be directed to find whether upon the whole of the evidence they were satisfied that he was insane so that he could not be tried upon the indictment. Where the issue was raised by the defence, it was for the defence to satisfy the jury of the accused's insanity, but the onus of proof, as in other cases where the onus of proof was on the defence would be discharged if the jury were satisfied on the balance of probabilities. These principles echoes those in the known cases of R -vs-Juston15 and the Rivett’s.16 The court went further to note that unfitness to plead will include those persons, although not insane in the strict sense are by reason of some physical or mental
14 15 16
(1959)3 All. ER 418. (1945) 6Cox385. (1950) 34 Cr. App. Rep. 87. Page 244 of 382
condition, not able to follow the proceedings at the trial and so cannot make a proper defence in those proceedings. The court approved of the test to be applied as propounded by case of R –vs- Pritchard17, that the jury should be directed to find whether the prisoner was of sufficient intellect to comprehend the course of proceedings on the trial so as to make a proper defence.
The issue of fitness to plead may be raised by either the defence, the prosecution or by the court itself. The principle that "he who asserts must prove" appears to underlie the court's decision in the above (Podola) case. If the prosecution asserts that the accused is unfit to plead, the onus is on them. In such a case, would they have to satisfy the strict criminal law standard of proving beyond reasonable doubt or would it be enough for them (as it is for the prisoner where, he asserts his unfitness) to prove their case on a balance of probabilities? At the trial, Edmund Davies J. thought that the strict criminal standard was appropriate and it is respectfully submitted here that this is correct. If the issue has been raised by the court, the onus falls on the prosecution.
D.
REFUSAL TO PLEAD INSANITY
Sometimes the defendant may refuse to raise and/or plead the defence of insanity. Although the Criminal Procedure Code is not clear on what procedure to be adopted in such situations, one may propose to observe how other jurisdictions have dealt with such an issue. In R -vs- Hollingsworth,18 the issue was at hand. H pleaded guilty of threatening to murder and demanding money with menaces and was sentenced to five years and three years imprisonment for each offence. H was 41 years of age and previously of good character. Since 1952, he had spent a considerable time in a mental hospital as a certified mental 17 18
(1836) 7 C&P 303. Court of Criminal Appeal (1956). Page 245 of 382
patient. He had absconded from the hospital when he committed the offences charged. Upon conviction he appealed to the Court of Criminal Appeal against the sentence. Lord Goddard -J, Ormerod and Donovan JJ held while dismissing the appeal, that as H refused to enter a plea of insanity, the only course was to send him to prison for a considerable period. It is noteworthy that in criminal law a fine line has to be drawn between the right to freedom and liberty of the individual and the right to the protection of the public. The above case raises the same point as R -vs- Barnett19, namely, what is to be done when there is evidence pointing to insanity of the defendant who refuses to plead insanity? How is the protection of other people to be ensured? It was held that imprisonment would most ably cater for that.
E. INSANITY AND THE PROSECUTION
One of the most pertinent questions asked on this subject is whether the prosecution should be allowed to raise the issue of insanity; when the insanity is not to prove unfitness to plead, but as a defence i.e. the accused was insane at the time of the commission of the act constituting the offence charged. It has been held as early as 1958 in the Bastian Case20 that the prosecution may allege insanity. Samuels H.A. in his article21 supported this position and submitted that the proposition that the prosecution may not allege the insanity of the accused was no longer the law. However, this was prior to the Price Case22. In this case, Lawton J ruled that it was the law. Although the prosecution may not be precluded in certain cases from leading evidence which may have the effect of tending to establish insanity, the main submission is that 19 20 21 22
(1956) Cr. L. Rev. 560. (As reported therein). (1958)1 W.L.R. 413; (1958)1 All E.R 568. See Samuel H.A: (1960) Criminal Law Review at 453. (1962) 3 W. L. R. 1308; (1962)3 All E.R 957 Page 246 of 382
as the law stands at the moment, Price is right and Bastian is wrong. The relevant authorities for the above contention being Oliver Smith23 and Casey24. In Oliver Smith, the appellant had been convicted of murder. He had confessed to the killing of a woman with whom he had been living with. At his trial, he set up a defence of insanity which he sought to establish by cross-examination of the prosecution witness and by direct evidence of his family and personal history. At the close of the defence case, the prosecution called the prison doctor to rebut the suggestion of insanity. His complaint on appeal, was a misdirection as to his defence. The appeal was dismissed. After the dismissal, counsel for the crown with regard to tendering evidence of a prisoner's sanity. The Lord Chief justice who presided over the court said:
"The question came up seven or eight years ago when a practice arose of the crown calling prison doctors to prove insanity. All the judges met and resolved that it was not proper for the crown to call evidence of insanity, but that any evidence in the possession of the Crown should be placed at the disposal of the prisoner's counsel to be used by him if he thought fit".
The Casey Case followed Oliver Smith and gave an approval of the above passage by the Lord Chief Justice. However, in Casey Case the court mentioned that the rule is that it is for the defence to call witnesses in relation to the issue of insanity.
However, the issue of whether or not the prosecution is competent to raise the issue of insanity is not settled and various writers and judicial contentions
23 24
(1910) Cr. App. Rep. 19 (1947) 32 Cr. App. Rep. 91 Page 247 of 382
indicate a disagreement. In the Kemp Case25 no objection was taken to the prosecution leading evidence as to the mental condition of the accused. The defence itself led medical evidence which agreed with that of the prosecution that the accused was suffering from a mental illness. There was finding by the court of insanity within the McNaughten Rule26. It can however be submitted that Kemp is not decisive as to the contention that the prosecution can raise the issue of insanity. It has been suggested that the interpretation to be placed on the judgment of Devlin in this case is to permit the Crown to raise the issue of insanity27.
In the Bastian Case
28
, B was charged with the murder of his two sons and
pleaded diminished responsibility. If his plea was successful, then he would not be liable to be convicted of murder. Donovan -J- ruled that as the defence had put in issue the state of the prisoner's mind by raising a defence of diminished responsibility, and, as the prosecution believed that they had evidence that he was insane at the time, the court could not stop the prosecution from crossexamining the defence witnesses and calling evidence to invite the jury to return a verdict of guilty but insane. In Nott29, the defence was also of insanity and the prosecution was given leave by Elwes -J-, after the defence case had closed, to call rebutting evidence to show that the accused was not insane although such evidence might have tended to establish that he was suffering from diminished responsibility. Similar views regarding the subject were expressed by Lord Denning in Bratty
25 26 27 28 29
(1957) 1QB 399. See below for discussion of McNaghten Rule. See Edwards J.H, 21 M.L.R 375 in note 50 at P.386. (1958) 1 W.L.R. 413. (1959) Crim L.R. 365. Page 248 of 382
–vs- Attorney General for Northern Ireland30. He thought that Devlin was quite right in putting the question of insanity before the jury and even though it had not been raised by the defence. He added that:
"... it is open to the prosecution to show what his true state of mind was. The old notion that only the defence can raise a defence of insanity is now gone. The prosecution are entitled to raise it and it is their duty to do so rather than allow a dangerous person to be at large… so it has been held in England that where a man sets up a defence of diminished responsibility, the prosecution are entitled to show that he was insane".
Thus in the Bratty Case, the Lord Chancellor observed that:
"One must not lose sight of the overriding principle laid down by the House in Woolmington’s case... that it is for the prosecution to prove every element of the offence charged. One of the elements is the accused's state of mind.
Normally the presumption of mental capacity is sufficient to prove that he acted consciously and voluntarily and the prosecution need go no further.”31
It is submitted that all what happens in a criminal trial where the defence raises automatism or diminished responsibility is that the presumption of mental capacity is displaced and the Crown becomes entitled to lead evidence as to the 30 31
(1961) 3 WLR 965 See 46 Cr. App Ref I at p.14 Page 249 of 382
condition of the prisoner's mind. This is borne out by the decision in R –vsSmith.32
However, recent judicial pronouncements do not favour the notion that the prosecution may raise the issue of insanity even if it has not been alleged by five defence. In Dixon33 and Morris34 which were decided before Bratty, Jones -J- refused to put insanity to the jury unless it was raised by the defence. In R vs- Duke35 the Lord CJ took the view that the right of the prosecution to raise the issue of insanity was still open to doubt and referred to the conflict of practice among judges. In Price36, which was decided later, Lawton -J- considered the comments of Lord Denning in Bratty as well as those of the Lord CJ in Duke and concluded as Jones -J- had in Dixon and Morri that the issue of insanity can only he put to the jury if it has been raised by the defence. In Mitchell37, Elwes -J- followed the decision in Price. It can therefore be argued that Lord Denning’s view does not represent the law as it now stands. Lawton -J- infact quipped:
"Prosecutors prosecute... A trial in England is not an inquisition... If insanity is a defence, it seems to me [that] it is for the defendant and his advisors to put it forward38".
The prosecutor's duty is to lay before the court the whole of the facts which compose his case and to do so fairly having regard to the fact the he is a
32 33 34 35 36 37 38
8 Cr. App, R 72 at 75. (1961)3 All E.R 460; (1961) 1 W.L.R. 337. (1961)2 W.L.R. 986 (1961)3 All E.R 737; (1961)3 W.L.R 1194. (1962)3 All E.R 957. Noted at the end of the Crim. App. Report of Price, 47 Cr. App. R. 21 at p.26. (1962)3 W.L.R. 1308atP.1312. Page 250 of 382
Minister of Justice.39. However,
"there's no rule or principle of practice.... that the prosecution should discharge both functions of prosecution and defence.”40
To allow the prosecution to raise the issue of insanity would be inconsistent with certain rules of practice established in a criminal trial. For instance, it is the practice for the prosecution to open its case in the sense of stating to the court the facts he intends to prove. This practice is to enable the court to know in advance the facts if proved on which the prosecution rely on for a conviction. To allow the prosecution to open a case of insanity would be to assimilate, in this respect, his functions with those of defence counsel, that is to say, ‘TO OPEN A CASE FOR AN ACQUITTAL!’
Insanity is a defence and it seems incongruous to suggest that a prosecutor can raise a defence. Thus the prosecution can only lead evidence which is relevant to the charge. One of the elements of every charge, as Lord Kilmuir pointed out in Bratty is the mental CAPACITY of the accused. To lead evidence of mental INCAPACITY, it is submitted, would therefore be inadmissible on the ground of irrelevance. Therefore, "evidence as to the condition of the prisoner's mind should be called, if required, in reply and not as part of the case for the Crown.”41
The rule as discussed herein has been the subject of some criticism. First is that to disallow the prosecution the right to raise the issue of insanity would in some
39 40 41
See R -vs- Puddick 4 F & F 498 at P.499 R -vs- Bryant & Dickson, 31 Cr. App. Rep 146 As per Lord Alverston C-J delivering the judgment of the Criminal Court of Appeal in Smith, 8 Cr. App. R 72 at 75. Page 251 of 382
cases be shutting out the truth because it is detrimental to the accused 42. This may be true that the present position arises out of the character and role of the prosecutor in a criminal trial. His duty is not to try to shut out any legal evidence which would be important to the interests of the accused person but it is not for him to decide what the interests of the accused are. It may not be in his interests to raise the issue of insanity. "Indeed, in many cases, it is not, for the end results of a successful defence of insanity is detention in Broadmoor.43
F.
THE POSITION IN KENYA
The Criminal Procedure Code is not categorical on this issue. There have been no reported decisions touching the issue fully. However, what is clear is that it is still as unsettled as in other jurisdictions. The case of Mandi s/o Ngoda44 focuses on the mootness. In this case the accused was charged with murder and at the opening of the trial his counsel intimated that the accused was prepared to plead guilty to a charge of manslaughter. The prosecution, however, declined to accept this plea on the ground that it proposed to establish that the accused was insane when the alleged offence was committed. Murphy -J- held inter-alia that it was questionable whether, even if it is permissible for the prosecution to raise the issue of insanity in the course of a trial, it was proper for the case to be presented at the outset as one in which the only verdict asked for was that of guilty but insane. He further observed that the court was entitled to treat the issue of insanity as an alternative defence and to invite the assessors to consider it on balance of probabilities. The judge revisited the English cases of Price and Bratty and drew their attention to the fact the matter is not finally settled whether the prosecution can lead evidence of insanity if it is not in reply to such other allegations put up by the defence as would warrant the move to be taken 42 43
44
See Samuels, (1960) Crim L. Rev at 460. See Berthan Macauley, Insanity and the Prosecution, (1963) Criminal Law Revie'w, 817 at P.828. 0963)EA153. Page 252 of 382
to rebutt it.
The issue therefore is still in dire need of authoritative judicial re-statement. There is no doubt that this issue is torn apart between those who assert that the prosecution may allege insanity and their opposers who see this as a usurpation of the defence. This disparity is rested on two opposing principles which are best illustrated by considering the case Durham -vs- US45. In this American case, the accused was convicted of house breaking. The only defence asserted at the trial was that Durham was of unsound mind at the time of the alleged offence. One of the grounds of warranting the conviction to be reversed was that the rules governing the burden of proof on the defence of insanity were not properly applied by the trial court. The court's argument was that courts commonly recognize a prima facie presumption of the legal sanity of the accused. This has the effect of making it unnecessary for the prosecution to establish the sanity of the accused. It was argued that the defendant himself carries the burden of coming forward with evidence on the issue of legal insanity. Courts however differ on the ultimate burden of proof or risk of nonpersuasion. It devolves in accordance with one of the two general rules. One rule allocates the ultimate burden of proof to the prosecution; the other rule assigns this burden to the defence. The strength of the presumption of sanity varies depending upon which of the above rules is followed and also varies according to the general view of the presumptions adhered to by a particular jurisdiction. Most courts for example in the United States, treat insanity as an affirmative defence with the risk of non-persuasion being on the defendant. English courts follow this rule although there is some indication that if the issue of insanity goes to mens rea, the prosecution must then prove sanity beyond a
45
214 F 2d 862; 45 A.L.R 2d 1430 (Annotated) 1954 . Page 253 of 382
reasonable doubt as an integral element of its case46.
Much said, one thing which is clear is that if the prosecution is in control of some material evidence, it should not be precluded from tendering it for purposes of just administration of the law. The case of R -vs- Dickie47 sums up the recommendation that one would give. This case establishes various aspects of insanity. It is noted that in certain exceptional circumstances, the judge can of his own volition raise an issue of insanity and leave the issue to the jury to decide. It also establishes that the prosecution has a positive duty to prove, if it can, all the allegations which it makes on the indictment. It further establishes that the prosecution has the power, if the issue of insanity is raised by the defence, to rebutt by its own evidence the attempt by the defence to establish insanity. It further has the obligation, if it has the evidence in its possession of insanity which will assist the defence to establish that the defendant was in that condition when the crime was committed, to make that evidence available to the defence in good time so that the defence may in its discretion make proper use of it.48
G.
INSANITY AS A DEFENCE: THE VERDICT OF 'GUILTY BUT INSANE' –vs- NOT GUILTY ON ACCOUNT OF INSANITY
In Kenya, like many other areas, a person who commits an offence but was insane at the time receives a special verdict of 'guilty but insane'. The Criminal Procedure Code is clear on the issue and a similar provision has been judicially
46
47 48
SeeKadish H.S., Criminal Law and its Processes (Toronto, Little Brown & Co. Second Edition, 1969) Pages 56-58. (1984) 3 All E.R. 173 This is the author’s recommendation. Page 254 of 382
considered in the case of R -vs- Magata s/o Kachehakana49. The accused was charged with killing his father. It was proved and admitted that the accused killed his father because he believed that he (his father) was Satan and had bewitched him. There was no apparent motive for the killing other than the belief of the accused that his father had bewitched him. It was held that when the accused killed his father he did not know what he was doing and that he did not know that he ought not to have done the act. The accused was therefore guilty of the act charged but insane at the time. A special finding of 'guilty but insane' was given.
H.
INSANITY: EVOLUTION
The defence of insanity has its roots in the 15th century and the first recognised case in which it was pleaded was Snow –vs- Beverly50, where it was held that the act of a mad man should not be imputed to him because he has no capacity to form the necessary menses. In that era, a successful plea of insanity was followed by an absolute acquittal. However, in the early 19th Century various attempts to assassinate the Monarch were made and in each case insanity was pleaded. Henceforth, a defence of insanity was closely scrutinized, emphasis being laid on the element of mensrea or guilty mind. Those who were found not guilty by reason of insanity were henceforth to be confined at the Monarch's pleasure. The main argument in such trials centered on the defect of reason and the knowledge of right and wrong. It seems from the earlier cases that once a person was certified insane, the guilty concept had no application to him. However, the 'guilty but insane' verdict was later introduced.
As understood today, the insanity defence refers to that branch of the concept of insanity which defines the extent to which men accused of crime may be 49 50
(1957)EA330. 4 Co Rep. 125 b; Ib ruling cases 708 (1604). Page 255 of 382
relieved of criminal responsibility by virtue of mental disease. The defence is derived from the rules of the judges formulated as a result of the McNaughten51 acquittal on grounds of insanity after the murder of Sir Robert Peel's Secretary in 1843. The acquittal of McNaughten on grounds of insanity raised dissatisfaction among the ruling circles in Britain. A review of the defence which was then erratic and ambiguous was requested. The rules as the opinions of the judges came to be known, were adopted in judicial practice and codified in other jurisdictions. They form the law on insanity. In Kenya, like in many other jurisdictions, the defence is cast in the language of the McNaughten rule which asks in substance, whether the defendant knew what he was doing when he committed the offence. These formulations have been received in the criminal law as part of a tradition which makes the notion of 'blame' central to criminal responsibility and which tries to define a class of persons who fall outside the boundaries of blame.
I.
GUILTY BUT INSANE OR NOT GUILTY ON ACCOUNT OF INSANITY?
The notion of blame is traditionally central in criminal liability. Although the tradition is an old one and is shared by most legal systems, it has not brought with it a consistently clear idea of how it should be applied. In its beginning, for example, it meant little more than the search for the person who had caused the injury and hardly at all did it concern itself with the person's state of mind. As man moved closer to the centre of the historical stage, the concept of purpose became the touchstone of criminal liability.
Only the evil man, the one with intentionto cause harm, came into consideration. It became necessary to account for those who could not think like other men and who could therefore not be blamed. These are the insane. Infact, 51
10 Clark and Finelly, 200 (1843) Page 256 of 382
in the 17th Century Coke included among the insane;
"... the idiot, the lunatic, and the person who by sickness, grief or other accident, wholly loseth his memory and understanding; and the lunatique that hath sometime his understanding and sometime not...52"
The law assumes for most situations that all men have the necessary qualities to make expected responses unless it is demonstrated otherwise. This assumption is reflected by the legal presumption that all men are sane53 and that they intended the natural and probable consequences of their acts. If therefore an individual's acts mark him as a criminal, it is ordinarily inferred that he intended to commit crime or was insufficiently attentive to the objective circumstances and therefore either reckless or grossly negligent. These presumptions may endow the defendant with characteristics which are not his at all.
J. INSANITY AS ABSENCE OF MENS-REA The heart of the insanity plea rests in mental disease (or derangement) such that the person is not blamable. To say that a person committed a certain act but was suffering from a mental disease such that he cannot be blamed is very much like saying in more specifically legal terms that his mental disease precluded mensrea, the 'guilty mind’54. In the United States of America, a person who commits or omits to do an act which would have otherwise constituted an offence but for his insanity is innocent on account of insanity. The 'Free-Will' theory as applied to criminal responsibility presumes that a man is endowed with free will if he is able to direct his actions. An insane person suffers from impairment of the 52 53 54
Goldstein A. S. The Insanity Defence, London, Yale University Press, 1967 at P. 10.. Section 11 Cap 63. The Penal Code. Fingarette H; The meaning of Criminal Insanity (Los Angeles, University of California Press.) 1972 Chapter Three. Page 257 of 382
exercise of free will and objective reasoning. It is therefore believed that he is incapable of criminal intent. Pursuant to this theory, the Alabama Supreme Court in 1818 came up with the "irresistible impulse test". Thus if one is not acting out of his free-will by reason of insanity, the defence goes a long way into negating mens-rea. Another formulation was the Durham Rules, a judicial pronouncement in the case of Durham -vs- U.S.55 The Durham Test, as it has come to be known states:
"... an accused person is not criminally responsible if his unlawful act was the product of mental disease or mental defect".
However, this rule was criticised by lawyers and judges for, among other reasons, its generality. The phrase "product of” was too general and the test died a natural death. A panel of discussion of the U.S Annual Judicial Conference 56 discussed at length the defence of insanity. Joseph Weintraub CJ (N.Y Supreme Court) argued that insanity should have nothing to do with the adjudication of guilt but rather should bear upon the disposition of the offender after conviction. However, Professor Herbert Wechsler disagreed with the above view that insanity has no relevance to guilt. He gave an example that if an elderly man is taken to hospital in an advanced arteriosclerotic state, and while in hospital experiences a tantrum, a delusion, a delusional phase, and knocks over a lamp with the result that the attendant is killed, it would be wrong to convict the man of homicide, and his condition regarded as relevant only on the question of
55 56
214 F2d 862; 45 A.L.R 2d 1430 (Annotated), 1954. Second Source of the proceedings available from: Kadish M.S., 'Criminal Law and its processes (Toronto, Little Brown 81 Co, 2nd Ed, 1969)at pages 584-586. Page 258 of 382
what to do with him. He noted that that was why the criterion of criminal responsibility as affected by disease or a defect parallels the traditional mensrea rules requiring a determination of blameworthiness in the ordinary moral sense, in the sense of working morality, not in the sense of man's responsibility for his nature or his nurture but in the sense that the afflictive sanctions of the law will not be visited on anyone unless he does something which is the product of a choice; unless in the traditional jurisprudential terms he performs a judicial act. This argument is sound. It requires that those not sane be treated as incapable of committing any offence which requires mens-rea because the state of their mental faculty does not favour them with the capability of forming a criminal intent. Understood in context, what the above discussion points to is that first, the element of criminal intent, mens-rea, is central when considering the issue of criminal responsibility. Secondly, it is clear that the said intent cannot be formed by one who cannot control his mind, the insane. If this analogy is correct, and it is, then an insane person has no mens-rea, or is not capable of forming one. Further, if this assertion is true, then by necessary implication, an insane person cannot be guilty of an offence which requires mens-rea. It is therefore submitted that the verdict of 'guilty but insane' seriously requires a consideration with a view to amending it to adopt the American style of 'not guilty on account of insanity'. Kenya has styled her verdict to the tune of the British Act57, which Act requires that if the insane defendant is found to have committed the offence, the finding be that of guilty but insane. This is much like saying that a person who is not capable of being guilty is guilty. This is a clear case for reform.
The verdict as we have seen in many other jurisdictions is NOT GUILTY BY
57
See Criminal Procedure (Lunatics) Act: Section 2 thereof, Page 259 of 382
REASON OF INSANITY. It is quite clear why this is so keeping in mind the essential elements of an offence. However, in Kenya the verdict still remains GUILTY BUT INSANE. It is truism that Kenya, much like many other African countries, is still melting from the ice of colonialism and in the process trying to reform her laws to conform to her social and economic conditions. The law regarding insanity needs reform not only to conform to Kenya's socio-economic realities, but also to echo the universally accepted norms in so far as criminal responsibility is concerned.
K. PROCEDURE AFTER FINDING OF GUILTY AND SANITY
The procedure to be followed once a finding of 'guilty but insane' has been passed is as outlined in the Criminal Procedure Code under section 166. The court is to make a report of the order to the President and in the meanwhile the accused is kept in safe custody. The President will then order where such person is to be detained normally in a mental hospital, prison or any other place the President deems fit. The officer in-charge of the place where such person is detained shall make a report in writing to the Minister for consideration by the President who may order that the person be discharged or otherwise dealt with58. At other times a person may not be insane but he is altogether not able to understand the proceedings. If this happens in respect of cases that are triable by a subordinate court, the court is to proceed and hear the evidence. If at the close of the prosecution's case the court finds that there is no case to answer as provided for under Criminal Procedure Code (section 210), the accused person should be discharged. On the other hand if a prima facie case has been made out against him the court should order the accused to be detained at President's
58
Section 166(S) Criminal Procedure Code (Cap 75). Page 260 of 382
Pleasure. The subordinate court's order is however not final because the High Court must confirm every such order59. If the inability to understand arises in a committal proceeding, he is to be committed to the High Court for trial if there is enough evidence to warrant a committal. The subordinate court may then either remand or grant him bail depending on the circumstances of each case. The High Court upon his being committed shall then try him and if at the end of the trial no evidence is led as would justify a conviction, the accused should be acquitted and discharged otherwise he is detained at President's pleasure 60. In all cases where such orders of detention at President's pleasure are made, the said orders must bear the signature of the presiding judge together with notes of evidence taken at the trial61.
L. AN EVALUATION OF THE PROCEDURE Section 166 lays down the procedure to be followed where a person is found to be insane. It provides that such a person will be remanded in custody and report made to the President who will detain him at a place he considers most suitable. The court which has had the opportunity of seeing, hearing and assessing the person has no discretion as regards confinement. The matter is taken out of its hands. In some jurisdictions in the United States62, commitment to a mental hospital is subject to an exercise of discretion by the courts. It is upon the court to determine whether the insanity is of such a nature as to warrant confinement. This is done in what is called a civil commitment proceeding/hearing. In this way, anybody who was insane at the time of committing the act but is no longer insane need not be committed. Those whose insanity arises from 'intoxication' benefit from this process.
59 60 61
62
Section 167(1) (a) Criminal procedure Code (Cap 75). Section 167(1) (b) (ii) Criminal procedure Code (Cap 75). Section 167(4) Criminal procedure Code (Cap 75).
States of Arkansas, Memphis, Connecticut and Carolina. Page 261 of 382
The issue of compulsory confinement is a controversial one bearing in mind the notion of personal liberty. Various reasons have been advanced as to its necessity. When a crime is committed, especially murder, there is public outcry against it and confinement becomes vital to allow public outcry to dissipate 63. If the defendant is found unable to conform, it is predictable that he might not conform in the future and therefore his condition needs treatment. Further, they should be detained for some time for their own safety and that of the society. It is for such reasons that the Criminal Procedure Code provides for confinement. Various considerations arise with regard to confinement. In Kenya the proof required of the accused in insanity cases (i.e. to prove insanity) is merely to demonstrate on a balance of probabilities the probability of that which he asserts. This reveals the fact that at the end of the day, it is only a reasonable doubt which remains in the court's mind as to the insanity, yet the commitment to a mental hospital is almost inevitable. Fallacious enough, there seems to be a presumption that although the accused's defence is that he was insane when he committed the offence, the insanity is continuous. There is a contradiction in terms because there are statutory provisions as to the procedure where one pleads insanity at the trial. Therefore, the fact that the trial even took place at all undermines the presumption of continuity of the insanity. Indeed, the definition, provided by the Penal Code (Cap 63) is germane. Section 12 provides, "A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is through any disease affecting his mind incapable of understanding what he is doing or of knowing that he ought not to do the act or make the omission...".
Turning to the confinement itself various aspects requiring consideration have 63
Goldstein, "The Insanity Defence", London, Yale University Press, 1967 at P.44. Page 262 of 382
arisen. Whereas one agrees that confinement is necessary to a certain extent various legal questions inevitably arise.
The Constitution of Kenya at section 72(1) (h) provides that a person may be confined for reason of unsoundness of mind, addiction to drug or alcohol. It does not provide otherwise and this may warrant the implication of the three minimal conditions above. If the first condition is closely evaluated, it can be seen that it is hardly observed as medical evidence in insanity cases is given no priorities and moreover it is not binding upon the court. Therefore a verdict of insanity is not evidence of any medical certification. The second condition suffers an even greater blow in that confinement is compulsory here (in Kenya). In jurisdictions where it is discretionary the matter is given some consideration during the civil commitment hearing. The length of the confinement is significant to the issue of liberty. In Kenya, the Criminal Procedure Code provides for the periodical reports to be made once one has been confined in a mental hospital by order as above. The first report in respect of the history, condition and circumstances of the person so detained is to be made three years after such an order64 has been made, and thereafter at a two year interval. The three year period is too long. Considering that confinement is also extended to those whose insanity arises out of drunkenness, the period is unrealistically long owing to the fact that one cannot obtain a release prior to the expiration of three years even though he may be perfectly sane.
This aspect of confinement seems to have a punitive edge and not just treatment. The persons so confined are regarded as criminals. This is given strength by the fact that those who are confined after court orders are confined together with other mental patients who have not been through the court
64
Section 166(2) Criminal Procedure Code (Cap 75). Page 263 of 382
process. Both classes are supposedly mental patients. However, their treatment is remarkably different. For example the Mental Treatment Act section 3065 thereof provides that a person in charge of mental hospital may by order in writing, order the discharge of any person detained in a mental hospital provided that an order will not be made in respect of persons detained under the Criminal Procedure Code. This means that the "acquittees" of the court are still criminals and treated as such. It is finally submitted that if a person pleads insanity and the defence is well established, he should be acquitted. The question of detention in a mental institution should only be for the purposes of treatment, but not holding him there as a criminal even after his mental condition has been demonstrably found to be no longer wanting.
65
Cap.248 Laws of Kenya. Page 264 of 382
CHAPTER FOURTEEN
JUDGEMENT A. INTRODUCTION Judgment means the adjudication by the court that the defendant is guilty or not guilty. A judgment merely stating the penalty would not be valid 1. It must contain adjudication by the court that the defendant is guilty or not guilty. According to a writer on judgments’2, a judgment of conviction may be said to consist of two parts:
i)
The facts judicially ascertained together with the manner of ascertaining them, entered on record,
ii)
The recorded declaration of the court pronouncing the legal consequences of the facts thus judicially ascertained.
Both these parts are equally necessary in the entry of a judgment.
B. DELIVERY The mode of delivering judgment is provided at Section 168 of the Criminal Procedure Code. It provides that the judgment is to be pronounced in open court. However, other jurisdictions with similar statutory provisions have held as valid a judgment and sentence entered by the court in chambers during a recess in the presence of court officials3. Similarly a sentence rendered in a room other than the courtroom because of an emergency was held valid in Reed -vs- State4.
1 2 3 4
Ellis-vs-State (1930) A.L.R 783. Freemen, "Judgments" (5th Ed. 1925) 99 O'Neal -vs- State 35 Ga. App. 665 (1926).147 Ind. 41 (1896). Page 265 of 382
The Criminal Procedure Code further requires that the judgment be explained and that the pronouncement be made either immediately after determination of the trial or at some subsequent time. However, notice must be given to the parties and their advocates if the judgment is to be delivered at some subsequent time. If the defence or prosecution requests that the judgment be read out in whole, the Magistrate is required to comply therewith5. If the accused person is in custody, it is required that he be brought before the court. In the event that he is not in custody, he is to attend to hear judgment delivered. However, this may not be necessary where his personal attendance has been dispensed with during the trial. To this is added a further qualification for his attendance not to be required that the sentence must be one of fine only or he is acquitted. It should not be lost to sight that a judgment is not invalidated by reason only that a party or his advocate were absent either on the day or place notified for delivery thereof. An omission to serve or defect in serving on the parties or their advocates is not fatal to the judgment6. This must, however, not be read in isolation. One must have in mind the spirit of Section 382 of the Criminal Procedure Code. This section provides that a sentence, order or other finding passed by a court of competent jurisdiction shall not be altered on appeal on account of error, omission or irregularity in the judgment unless the error or omission has occasioned a failure of justice. In determining whether such an anomaly has occasioned injustice the court is required to consider whether the objection could and should have been raised at an earlier state in the proceedings7. In delivering judgment and sentence, the Magistrate or presiding Judge must be clear and to the point. This will ensure that ambiguity is not created. In cases of
5 6 7
Proviso to section 168(1) Criminal Procedure Code (Cap 75). Section 168(3) Criminal Procedure Code (Cap 75). Proviso to section 382 Criminal Procedure Code (Cap.75). Page 266 of 382
an ambiguity, Sir Udo Udoma C.J in Eneriko Lutalo –vs- R8 considered the consequences. The facts here were that the appellants were charged jointly on two counts of robbery with violence and were found guilty and convicted. They were sentenced to five years imprisonment each with fourteen strokes of the cane with an approved instrument on each count. The incidents in respect of which they were charged took place at the same time but as two persons were attacked, two separate counts were brought. Both appellants appealed against the conviction and sentence. Their appeals against conviction were dismissed as without merit. As to sentence, counsel for the respondent submitted that it was ambiguous and bad in law and the case should be remitted for re-sentencing. Sir Udo held that the sentence was neither bad 'ab initio' nor incurable but it was ambiguous and the High Court had ample power to clarify it on looking at the proceedings to ascertain the Magistrate's intention. Sir Udo was of the opinion that if the sentence passed on the appellants was legal, then the ambiguity according to him was simply a question of construction. He noted in his ruling that;
Although the order is capable of a number of meanings, in an attempt to make sense out of it, it is the duty of this court [High Court] to give the best possible construction to the order9.
This was not the first time that the question of ambiguity in passing sentence was considered in East Africa. In the English case of Re Castings10 the Divisional court established the principle that;
8 9 10
(1966)EA328 Ibid at 330 para. G. (1958)42 Cr. App. Rep. 132. Page 267 of 382
Provided that the court of Criminal Appeal can clearly see what was the intention of the judge in passing sentence, the question of exact words used is immaterial.
However, this must not be taken as ousting the spirit of the law that exactitude and clarity of a judgment do exemplify the normative basis of law.
C.
FORM AND CONTENT
In most legal aspects, the form in which the particular issue is presented is given a lot of emphasis. Thus Section 169 of the Criminal Procedure Code provides inter alia that a judgment must be written by or under the direction of the presiding officer of the court. It must not only be written in the language of court but it must also include the requirements stated therein. These are that the judgment must contain the point or points for determination, the decision thereon and the reasons for that decision. With this duly done, the presiding officer is required to sign it in open court at the time of pronouncing it. If the judgment is one of conviction, it shall specify the offence of which, and the section, of the Penal Code or other law under which the accused is sentenced11. Section 169(3) provides for acquittal cases in which case the judgment shall state the offence of which the accused is acquitted and shall direct that he be set at liberty. The accused person is allowed to ask for a copy of the judgment and may further ask for a translation in his own language, if practicable, and is to be given the copy without charge by virtue of Section 179 of the Criminal Procedure Code. The point or points for determination must cover the essential ingredients of the offence charged. Failure to comply with these requirements is an irregularity which will entitle
11
Section 169(2) Criminal Procedure Code (Cap.75). Page 268 of 382
and oblige the Court of Appeal to examine the facts of the case with a view to determining whether there has been a failure at justice within the meaning of section 382 of the Criminal Procedure Code. Findings of fact should be based on the credibility of witnesses especially in cases where the witnesses are accomplices. A trial court must also direct itself on the nature of the evidence adduced. In the case of evidence of children of tender age the court must be mindful that their evidence should be corroborated before a conviction can be had except where in a case involving a sexual offence, the only evidence is that if a child of tender years who is the alleged victim of the offence (the case shall receive the accused person if, for reason to be recorded in the proceedings, the court is satisfied that the child is telling the truth. (See Sec. 124 evidence Act) amendment.12. A judgment is defective if there are no findings on any discrepancies in the evidence, but a trial is not a nullity simply because there is a defect in the judgment. In the judgment, the usual practice is to enter up judgment and sentence separately on each count on which the defendant has been convicted, and not on the whole indictment. This implies that if on appeal the conviction on one or more counts is quashed, the judgment on good conviction on the other counts may stand13.
C. MINOR AND COGNATE OFFENCES
Minor and Cognate offences are dealt with at Section 179 of the Criminal Procedure Code. It provides that a person charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and the combination is proved, but the remaining particulars are 12
13
See Bwonwong'a M. Procedures in Criminal Law in Kenya (East African Educational Publishers Nairobi 1994) Chapter 18. Orlirld L.B, Crimiridl Procedure From Arrest to Appeal (New York, N.Y. University Press, 1947) Chapter IX. Page 269 of 382
not proved, may be convicted of the minor offence although he was not charged with it. This section was considered judicially in the case of Robert Ndecho and Ogonyo Luora -vs- R14. The appellants were tried with others on an information charging them with the murder of a police constable. The appellants were convicted of wilfully obstructing the police in due execution of their duty or of persons acting in their aid. Before noting the court's judgment, it is important to focus on section 179(2) of the Criminal Procedure Code which provides as follows:
'When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence and the combination is proved but the remaining particulars are not proved, he may be convicted of the minor offence although he was not charged with it'. In light of the above provision, the court held that where an accused person is charged with an offence he may be convicted of a minor offence although not charged with it, if that minor offence is of a cognate character, that is to say, of the same genus or species. The court went further to explain more on section 179(2). Nihill, Newnham and Smith JJA were of the view that the wording of section 179(2) Is permissive only and when the offence is murder a court should exercise its discretion most warily before convicting a person [accused] charged with any alternative offence, although cognate, other than manslaughter. The test to be applied, noted the judges, when exercising such discretion is whether the accused person can reasonably be said to have had a fair opportunity for making his defence to the alternative.
14
(1951)18 E.A.C.A 171, See also the case of Rv Koigi Wamwere & Others Criminal Case No. 1278 of 1994 (unreported) where the accused were charged with the of fence of Robbery with Violence and convicted for Robbery. Page 270 of 382
Further case law15 analyses a problem that before a conviction for a minor offence can be substituted for a major offence charged, the circumstances embodied in the major charge must necessarily, and according to the definition of the offence imputed by that charge, constitute the minor offence also However, this was a dissenting view by Briggs JA. Nonetheless, what is clear from this case (Wachira s/o Njenga –vs- R)16 is that where there are alternative counts and a conviction is recorded on one, a verdict should not be given on the other. Further it emerges clearly that before a conviction for a minor offence can be substituted for a major offence charged, the form of the charge must necessarily give the accused notice of all the allegations going to constitute the minor offence; it not being a question whether the form of the charge in a particular case, in fact, gives the accused notice of such allegations. The Tanzanian High Court has considered section 181 of the Tanzanian Criminal Procedure Code which is in pari materia with the Kenyan Criminal Procedure Code section 179. This was in the case of Ali Mohammed Hassani Mpanda –vs- R17. In this case, the issues that were being determined included the court's power to substitute a conviction of a minor offence and whether minor offence must be cognate to the major offence charged. The facts of the case were that the appellant together with others was charged with obstructing police officers in the due execution of their duty contrary to section 243(b) of the Tanzanian Penal Code. The Magistrate found the appellant not guilty of the offence charged but convicted him of the minor offence of assault occasioning actual bodily harm contrary to section 241 of the aforesaid Code. On appeal it was considered whether the Magistrate had power to substitute a conviction of the lesser offence and whether that offence must be cognate with the major offence charged. Spry -J- held that section 181 can only be applied where the
15 16 17
Wachira s/o Njenga -vs- R (1954)21 E.A.C.A 398. Ibid (1963)EA294. Page 271 of 382
minor offence is arrived at by a process of subtraction from the major charge, and where the circumstances embodied in the major charge necessarily and according to the definition of the offence imputed by that charge constitute the minor offence also and further where the major charge gave the accused notice of all the circumstances going to constitute the minor offence of which the accused is to be convicted. He further held that an essential constituent of the minor offence of assault occasioning actual bodily harm is not an essential constituent of the major offence of obstructing a police officer in due execution of his duty and that the charge as drawn did not give the appellant notice of all that constituted the offence of which he was convicted since it contained no allegation of assault; hence section 181 of the Criminal Procedure Code (Tanzania) was not applicable and the conviction under section 243(b) of assault occasioning actual bodily harm was set aside.
E. ORDERS ON JUDGMENT Once judgment has been entered in compliance with the provisions of the Criminal Procedure Code, Section 170 entitles the accused person upon application to a copy of the judgment or when he so desires a translation in his own language. Such a copy shall be given to him without undue delay and free of charge.
F. CONCLUSION The writing of a judgment is of fundamental significance. Failure to comply with the rules for writing a judgment may be fatal to the judgment. In the case of Ratilal shah –vs- the Republic18, where a trial Magistrate at the time of delivering the judgment stated that reasons would be given later the Supreme Court refused to look at the reasons written by the presiding Magistrate after the
18
(1958) EA pg.3 (HCK) Page 272 of 382
trial. The upshot of this as viewed against the background of the provisions of Section 168 of the Criminal Procedure Code relating to mode of delivery of judgments and section 169 relating to contents of judgment underscore the significance
of
this
Stage
of
CHAPTER FIFTEEN SENTENCES A. INTRODUCTION Sentencing is central in the administration of criminal justice. It is the process/stage in the criminal procedure at which a court of law of competent jurisdiction makes an order after convicting the accused, as to the specific penalty to be meted out to such criminal. The severity of a sentence depends on the circumstance of each case. Regard is usually had to the nature of the crime, the criminal and the purpose of the sentence. There are various schools which regard criminals in various perspectives. One extreme view is that criminals do not respect the rights and dignity of others and therefore should not themselves be accorded any such treatment of dignity and respect. They recommend that criminals should be punished so that society can be protected. On the other extreme is the view that criminals are victims of social, political, economic and psychological forces in society. Therefore, they recommend that sentencing should have the goal of salvaging and rehabilitating the criminals and should therefore be treated with compassion and understanding1.
It is against this
background that the principles pertaining to sentencing will be discussed.
Various theories have been propounded to explain criminal behaviour based on the notion that it is only after one understands what causes 1
Smith A.B & Berling L; Treating Criminal Offenders: Issues and Problems. PP 1-2 (1974); HL Packer. The Limits of Criminal Sanction. P.3 (1963). Page 273 of 382
trial.
criminal behaviour that appropriate remedy, by way of sentence, can be offered. However, for a judgment and verdict to be competent, it must not only be arrived at via the correct avenue, and indeed be correct, but the sentence imposed must serve to remedy the wrong in the most appropriate way while not losing track of human dignity and respect.
Although this treatise is not one in Penology a brief examination of the historical development of sentencing and punishment is germane to the proper appreciation of sentencing under Kenyan Law.
B.
HISTORICAL DEVELOPMENT OF SENTENCING AND PUNISHMENT The earliest form of punishment was based on the need for
retribution. In the earlier times, this was the dominant approach and rested on the idea that a criminal was responsible for the harm he has done and that it was right for him to be punished for he ought to receive his just 'payment'. The punishments were therefore often inhuman, degrading and at times excessive. They included whipping, branding, banishment, mutilation of limbs, emasculation etc. At other times, expiation of guilt by money payment was done2. The historical movement of punishment and sentencing is best illustrated by Glasser's six R's: revenge, rejection, repression, restraint, rehabilitation and reintegration3. Society's attitude towards punishment is gradually changing and has known change from the period when retribution was the overriding principle to 'modern' theory of punishment to rehabilitate and reintegrate the criminal back to the society.
2 3
Bloch H.A & Gies G; "Man Crime and Society PP 56-69. Glasser D; Social Controls. P. 55 1971. Page 274 of 382
Late in the 18th Century, penologists reacted sharply to the arbitrary administration of criminal justice and to the cruelties of some of the punishments prescribed. They suggested the adoption of a national approach while contending that administration of criminal justice must not be arbitrary but should be based on principles that guarantee the equality of everyone before the law. Therefore, punishment for a crime did not have to be unnecessarily cruel or capricious. The views of these penologists were a catalyst for the new impetus of criminal sentence, namely the prison. Among those intellectuals were lawyers such as Beccaria and Bentham. Beccaria was of the view that punishment should be proportionate to the seriousness of the crime4. Bentham5 shared in Beccaria's view. He saw man as a rational being endowed with free will, whose utility of an act is measured by its efficacy in producing happiness or reducing pain/suffering for everyone. He, therefore, saw that the punishment should he based on the principle that the pain for violating the law should be slightly more than the pleasure derived from the crime. Further 19th Century developments and those of the 20th Century have seen the incarceration policy being de-emphasised. Social scientists focus the attention on the complex social factors that shape a person's behaviour. These include economic, political and other social factors. Other criminologists stress that criminal behaviour is caused by personal factors such as physical, genetic and other biological characteristics of the offenders, and that these factors are most central in the offender's criminal behaviour. Modern psychology has revealed that factors such as poor impulse control, emotional instability and weak super-ego etc may result in criminal behaviour. To this extent, the criminal is thus not a wilful, rational being endowed with free will, but one acting from uncontrolled irrational 4 5
Beccaria C; Essay on Crimes and Punishment. (1953). Bentham J; An Introduction to Principles of Morals and Legislation. Chapters 12,13&14 1948 Page 275 of 382
impulses6. From the foregoing, criminality is regarded as the result of one form or another of abnormality in the individual in which the criminal has no control. On the other hand, it is seen as arising out of the socio-economic and political environment in which the offender lives and has a free will in them.
Owing to this distinction, the penal policy has been influenced in the following manner:
'those who believe in the free-will of the offender maintain that he should be accountable for his behaviour, while the opposite view holds that the best remedy is to re-educate the criminal with a view to reintegrating him back to society'.
However, despite the numerous scientific findings, criminal law largely relies on the "free-will" doctrine and treatment begins only after sentence has been imposed. If there is a conflict between the court's duty to protect the public and reform, it is probably reform that will have to give way7. Lord Devlin has clarified the position further that: “When the period has been fixed as justice demands, the law authorizes and indeed encourages the penologists to use it for the work of reformation... The sentence must not be longer than is justified by the gravity of the crime and must
6
7
Freud S; A General Introduction to Psycho-Analysis, (Joan Riviere tr. 1935 first published in 1920). Smith J C & Hogan B; Criminal Law. (London Butterworths 8th Edition 1996) PP 4-15. Page 276 of 382
not fall below the least that justice demands... The penologists' objective is to send the prisoner back into the world changed for the better. When these objectives clash, it is just sentence which must prevail8.
With the above analysis, the issues pertaining to sentencing can now be discussed.
C. OBJECTIVES OF SENTENCING
Sentencing is the specification of the punishment or criminal sanction which is to be imposed upon a convict for the crime committed. To this specification, two important questions must be determined;
(1)
What objects are to be achieved by it?
(2)
What measure or measures are most appropriate to achieve the desired objective?
'... There are two and only two ultimate purposes to be served by criminal punishments: the deserved infliction of suffering on evildoers and the prevention of crime... the institution of criminal punishment draws substance from both these ultimate purposes9'.
These ultimate purposes, and punishment, are justified by the utilitarian theory (deterrence, incapacitation and rehabilitation) according to which punishment is seen as the vehicle via which certain socially desirable
8
9
Devlin .P, The Judge' 1979 (at 29-30) Ct of Justice Robbert Jackson in Gregg Cartage and Storage Co -vs- United States at 79-80. Packer H.L, Limits of the Criminal Sanction, Supra Note 1. Page 277 of 382
consequences of deterrence, incapacitation and rehabilitation of offender are achieved. Talking of deterrence, one clearly sees two facets of it; on one hand general deterrence and special or individual deterrence on the other. General deterrence is probably most directly linked to Bentham's ideas, since the general population will be dissuaded from criminal behaviour, observing that punishment will necessarily follow commission of a crime and that pain will be greater than the benefits stemming from the illegal act10. In specific or individual deterrence, the goal is to deter the criminal from committing further crimes. This is accomplished by subjecting him to an unpleasant experience that he will not wish to endure again11. Incapacitation has the object of preventing crime by physically restraining the offenders themselves. The 'prison' system is the most common/typical mode of achieving that end. In modern times, the most persuasive justification for any criminal sanction is not so much retribution but reformation and rehabilitation. However, modern retributivism contends that punishment for those who break the criminal law is justified since it restores the balance which the offence has disturbed and ensures obedience to the law12. Hence, in this view, punishment is justified not merely because it is deserved but also because it contributes towards crime control13. Although the goals and justifications for punishment may appear to be discrete concepts, pursuit of one objective may well conflict with pursuit of another. For example, the goals of general and special, deterrence are incompatible. The level of punishment necessary to deter others may be inconsistent with the needs of 10 11 12 13
Cole G. F, The American System of Criminal Justice P.387 1975. W. Fave W & Scott A, Criminal Law P.22 (1972). Sir R. Cross &Ashworth A, The English Sentencing System PP. 120-165(3ed. 1981). C. J. Emmins, A Practical Approach to Sentencing. Page 278 of 382
an individual offender. In the same manner, if the object is prevention, imprisonment may be justified for both a trivial and a serious offence. The objectives do overlap quite a great deal and whereas imprisonment may be justified in terms of its meritorious goal of incapacitation, it has its objectives as retribution, deterrence and rehabilitation of the offenders. It is therefore difficult for a court to determine a sentence that accommodates one or more of these objectives as applied to a particular case.
D. THE AVAILABLE SENTENCES Section 24 of the Penal Code (Cap 63) provides the following punishments for the offence against the Code; Death, imprisonment for life, detention under Detention Camps Act, fine forfeiture, compensation, security for the peace and good behaviour, any other punishment provided by the Penal Code or any other Act.
i) Capital Punishment It is the mandatory penalty for murder, treason, robbery with violence or attempted robbery with violence. It can only be imposed upon an adult (over 18 years of age). If a youthful offender is convicted of an offence carrying a mandatory death penalty, he is detained at the President's pleasure. It cannot also be imposed upon a pregnant woman, who in the event of a like conviction will instead get a life imprisonment. However, the President may exercise his prerogative of mercy as vested upon him by the Constitution14 to pardon any such person(s) convicted of a capital offence.
14
See Constitution of Kenya sections 28 - 29 1998 (1992) Text. Page 279 of 382
In R v Susan Akoth15 Justice K. H. Rawal ruled that child offenders even though charged with the offence of murder are not punishable by sentence of death.
ii) Imprisonment This is the most popular punishment and entails the actual physical restraint of a person in custody. For most offenses only the maximum custodial period is given. This gives the court wide discretion to decide what custodial period, if any, will be given. A sentence of imprisonment may be accompanied by hard labour. Generally, a sentence of imprisonment shall not be imposed on a first offender except where the offence is particularly grave, aggravated or wide-spread in a particular area16. It has been held in the Kitika Case17 that a crime committed as a result of domestic feud will not necessarily attract a term in prison because it has been argued that since the parties are closely related, imprisoning the offender may also in effect punish the complainant.17(a)
iii) Detention in Detention Camps Detention Camps Act (Cap 91) provides that a person who is convicted of an offence that would adequately be punished by a fine or imprisonment for not more than six months, may instead be sentenced to detention in a detention camp for any period upto six months. Detention Camps are also needed to detain offenders who have been convicted of offences for which the prescribed punishment is only a fine or fine and imprisonment and the
15 16 17
17(a)
High Court of Kenya Criminal Case No. 236 of 2003 (ureported). Supreme Court of Kenya Circular to Magistrates No. 13 of 1956, 29 (K.L.R)205. See Kitika s/o Tintilia (1968) H.C.D No. 65, also See *Soma s/o Jundu (1969) H.C.D. No. 151. Ibid and see also Soma s/o Jundu (1969) H.C.D. No. 151. Page 280 of 382
offender fails to pay the fine the court may order that in default of payment the offender undergoes a detention. Detention camps were once very popular as providing an alternative to imprisonment for petty offenders for whom other penalties were unsuitable. But because of the introduction of an alternative in the form and nature of extra-mural penal employment, the number of detainees in detention camps has declined, and it is hoped that the number will decline even further.
v) Fines A limitation upon fining is provided by the various maxims imposed by the provisions of the Penal Code or any other statute. The amount of fine should be realistic. Fines are preferred to orders of imprisonment. A sentence for imprisonment without the option of a fine, even though it is allowed by the statute, should be exercised with great caution. Thus, in the case of Chander Kanta Sethi –vs R18, imprisonment without the option of a fine was imposed on the sole consideration that the accused should not be allowed to buy her way out. On its appeal, the Supreme Court of Kenya held inter alia that the Magistrate was not correct in holding that if a fine was imposed, the offender was being allowed to buy her way out of the consequences of the act for which she had been convicted. As per Rudd Ag CJ,
... We do not consider that this is a proper way of deciding the nature of the sentence which should be imposed... we consider it irrelevant that any fine that might have been imposed would be paid by the appellant's husband or
18
(1962)EA523. Page 281 of 382
relations...19
Imposition of a fine is to be preferred irrespective of accidentals earning capacity. The case of Mita –vs- R20 focuses on the point. In this case the appellant, an air-hostess, bit the complainant on the chin. She pleaded guilty to causing actual bodily harm. The Magistrate sentenced her to two months' imprisonment although she was a first offender and was contrite. In doing so, he commented that he did not think a fine would serve any purpose as the appellant appeared to be earning a lot of money. On appeal against the sentence, Madan -J- held that irrespective of an accused person's earning capacity it is not wrong to impose a fine unless the circumstance of the case precludes the imposition of such punishment;
... the contrary cannot be correct otherwise every well-paid accused person, irrespective of the nature of the offence would be sent to prisons by the courts without the option of a fine21 The fine must however bear a reasonable relation to the accuser’s ability to pay22. The Tanzanian High Court has held that before making the order imposing a fine, the court should make some inquiries as to the financial standing of the offender, his property and income23. This would seem a very welcome attitude to be adopted by our courts. Courts have held that the fine should not he excessive. Thus in the case of Mohamed -vs- R24, it
19 20 21 22 23 24
Ibid at 527. (1969)EA598. Ibid at 599. Mohamed Juma -vs- R I T.L..R, 257. R -vs- Bishom s/o Mwango 2 T.L..R, 31. (1969)EA287. Page 282 of 382
was held that a fine twice the value of property under litigation was excessive and the fine was reduced to the corresponding value of the chattel. It is, however, unlawful for a person to be sentenced to imprisonment in addition to a fine unless tthe statute so authorizes. This was given judicial consideration in Ahmed Hirsi Mohammed –vs- R25. The appellant was convicted under section 3(1) of the Miraa Prohibition (Scheduled Areas) Ordinance, 1951 (as amended by Ordinance No. 11 of 1957) and sentenced to six months' imprisonment and to pay a fine of Shs. 100/= or six (more) months' imprisonment in default of payment. The maximum penalty for a contravention of section 3(1) of the Ordinance as amended was a fine of Sh.2,000/- or imprisonment for a term not exceeding twelve months. Sinclair CJ and MacDuff -J- held that the appellant should not have been sentenced to both imprisonment and a fine. They, however, quashed the order of fine against the appellant but upheld the imprisonment sentence.
vi) Forfeiture Courts have power to order the forfeiture of any property which has been used in connection with the commission of a crime. If the property cannot be found or cannot be forfeited for whatever reason, the court will assess the value of the property which ought to have been forfeited and order such sum to he forfeited. This can be done in addition to or in lieu of any other punishment which may be imposed for the offence.
vii) Compensation Section 31 of the Penal Code empowers the court to order a convict to compensate any person injured by his offence, either in addition to or in
25
(1958)EA63. Page 283 of 382
lieu of any other penalty. A question for consideration at this point is whether one is liable to imprisonment in default of making good the order of compensation. The case of R -vs- Lokidilio s/o Laitogou26, though tangential, is germane. The resident Magistrate at Rumuruti convicted the accused of killing an animal with intent to steal it and passed a sentence of eighteen months' imprisonment and also ordered the accused to pay Shs. 250/= compensation in default of which the accused was to serve a further three months imprisonment. The record was then transmitted to the Supreme Court for confirmation. It was held inter-alia that there is no authority in Criminal Procedure Code for ordering imprisonment in default of payment of compensation at the same time as the order for payment of compensation is made and accordingly the order for imprisonment in default of distress was at that stage illegal. It was further held that where an order is made the court should first inquire whether distress and sale of the accused's property would be ruinous to the accused or his family; and secondly whether the accused is entirely without property on which distress could be levied. If either of these questions is decided in the affirmative or if there is any other good and sufficient reason for not selling the accused's property, the court has a discretionary power under section 335 of Criminal Procedure Code to commit the accused to prison. If, however, the inquiry shows that the accused has property or may have property on which distress can be levied, the proper course is to issue a warrant of distress under section 331. If the officer to whom execution of the warrant is entrusted reports that there is no (or no sufficient) property upon which to distrain, the court may in its discretion commit the accused to prison. Under the provisions of section 175 of the Criminal Procedure Code,
26
Confirmation Case No. 344 of 1958; Reported in (1958) EA 138. Page 284 of 382
compensation can he awarded only out of a fine imposed. However, a heavy fine should not be imposed merely to create a compensation fund 27. When a fine has been imposed or compensation order made under section 31 (Cap 63), or an order as to payment of costs of prosecution made under section 32 (Cap 63), the court may direct that in default of payment, the offender be imprisoned for a maximum period ranging from fourteen days to twelve months depending on the amount in question (see section 28 of Cap 63). However, under section 336 of the Criminal Procedure Code, execution of sentence of imprisonment in default of a fine can be suspended for upto thirty days. Further, no commitment for non-payment of a fine shall be imposed which is longer than six months, unless the law under which the conviction has taken place allows a longer custodial period28.
viii) Security for Good Behaviour A convicted person may be bonded over on his own recognisance to keep the peace and be of good behaviour for such period as the court thinks fit. This can be done either in addition to or in lieu of any other punishment to which the offender may be liable29.
ix) Absolute and Conditional Discharge Section 35 of the Penal Code provides that if the court is of the opinion that it is inexpedient to inflict punishment and that a probation order is not appropriate, it may absolutely or conditionally discharge an offender. When the discharge is conditional, the condition to which the offender is subject is that of not committing any further offences during the period of
27 28 29
Ahmed Mohamed -vs-R (1959) EA 1087. See section 342 of Criminal Procedure Code (Cap 75). Section 43 of Criminal Procedure Code (Cap 75). Page 285 of 382
discharge. The period of conditional discharge can be upto a maximum of twelve months. Should an offender be convicted of an offence committed during the currency of a conditional discharge he is liable to be sentenced for the offence in respect of which he was discharged.
x) Probation Probation has been described as a combination of both 'treatment and punishment' in the context of community based corrections. Offenders receive counselling and guidance in an attempt to bring them back to acceptable social life by positively adjusting them. In Kenya, probation is governed by the Probation of Offenders Act (Cap 64). Section 4 of the said Act specifies that where a court is of the opinion that it is expedient to release the offender on probation, it may convict the offender and make a probation order. The High Court can also make an order of probation in lieu of sentencing an offender to any punishment. In various instances the probation officer's report will be required before sentencing. Thus in Kabeni –vs- R30, the appellant pleaded guilty to a charge of attempted suicide and was sentenced to six months imprisonment. In allowing the appeal against sentence, Trevelyan -Jnoted:
It would have been far better had the Magistrate realized that an accused such as the appellant in this case needs sympathy and help rather than punishment. What useful purpose can a period of six months' imprisonment serve in circumstances such as we have here? A probation officer's report should be obtained as a matter of course
30
(1970)EA503. Page 286 of 382
before a person convicted of such an offence is dealt with31.
The Courts must have regard to the offender's age, character, antecedents, home surroundings, health or mental conditions of the offender or the nature of the offence, and any extenuating circumstances in which the offence was committed. The offender may be required to enter into a recognisance with or without sureties.
xi) Extra-Mural Penal Employment. Extra-mural penal employment is provided for by the Prison's Act32 and can be ordered by a court in case of a convicted person sentenced to imprisonment for not more than six months or sentenced to prison for nonpayment of a fine, compensation or costs or sentenced to detention. The offender works for half a day and is provided with food while at work but he is not paid.
xiii) Settlements Courts are vested with power to promote reconciliation and encourage and facilitate settlement in minor criminal cases on terms of payment or compensation or other terms33. This view was given judicial cognisance in Samuel Kurai -vs- R34. The Honourable Judges of Appeal while, allowing the appeal, authoritatively and unanimously held that the trial and first appellate courts erred in their interpretation of section 176, by letting the appellant serve an imprisonment sentence at a time when there was already an amicable reconciliation between the appellant and the complainant. The
31 32 33 34
Ibid at Para. G Cap 90 laws of Kenya. Promotion of reconciliation, section 176 Criminal Procedure Code. Criminal Appeal No. 14 of 1990. Page 287 of 382
High Court thought that the offence, under section 251 of the Penal Code35, should not be treated with leniency. The Court of Appeal was of the view that was not the issue, for consideration. The fact of the matter is that under section 176 of the Criminal Procedure Code a court may promote reconciliation and encourage and facilitate reconciliation in circumstances which are expressly stated in the provision of law.
This is a usual power vested in the Kenyan Courts. The drawback is that these settlement provisions have been sparingly used in Kenya, perhaps because the particular offences on which, the courts should apply them are not specifically stated. In some cases the courts remarked that the express mention, of common, assault in the reconciliation section, implicitly rules out more serious forms of assault36. Until the Court of Appeal or the Act comes out authoritatively on which class or classes of offences the reconciliation provision should encompass, the trial courts will hesitate to offer this remedial measure. Regard must also be had on the role of this provision as a vehicle of encouraging voluntary settlement so that tiresome and expensive litigation can be avoided for many offences.
xiv) The Treatment of Juvenile Offenders
The Children Act Section 191 provides several options for the treatment of child offenders.
They include: -
35 36
Penal Code Cap. 63 Laws of Kenya. The section deals with Assault Causing Actual Body Harm. See R. vsSaidi Ibrahim (1960) EA 1058, Umbwa Mbenga & Another vs R(1969) HCD n.312. Page 288 of 382
(a)
Dischargig the offender under Section 35(1) of the Penal Code.
(b)
Discharging the offender on his entering into recognizance with or without sureties.
(c)
Commiting a fit person whether a relative or not or a charitable children’s institution willing to undertake his care.
(d)
If the child is above 10 years and under 15 years of age by ordering him to be sent to a rehabilitation school suitable to his needs and attainments.
(e)
By ordering the offender to pay a fine, compensation or costs or any or all of them .
(f)
In case of a child who has attained the age of 16 years, dealing with him in accordance with any Act which provides for establishment and regulation of Borstal Institutions.
(g)
By placing the offender uner care of a qualified counselor. Under Section 189 of the Childrens’ Act the words “conviction” and “sentence” shal not be used in relation to a child dealt with by the Children’s Cout and any reference in any written law to a person convicted, a conviction or a sentence shall, in the case of a child be construed as including a reference to a person found guilty of an offence, a finding of guilt or an order upon such a finding as the case may be.
xv) Suspended Sentence This mode of sentencing, is very typical of Tanzania and is best illustrated by the way Tanzanian courts have exercised it, under the Tanzanian Criminal Procedure Code37, a court, may in appropriate cases, suspend either or part of a prison sentence. A suspended sentence is one
37
Section 294(A) thereof. Page 289 of 382
which will not be brought into effect unless and until the offender is in breach of certain conditions set out by the court. If the offender breaches any of the conditions during the period, of suspension, he will be required to serve the sentence which was suspended38. This to some extent, is similar to conditional discharge of the Kenyan practice.
E. ALTERNATIVES TO IMPRISONMENT In the recent past, suggestions have been forwarded urging the adoption of non-custodial rather than custodial penal policy. The merits of a non-custodial sentence derive from both penological and economic considerations. Non-custodial, sentences are cheaper than custodial ones and are therefore preferred on economic grounds. Custodial sentences have no more reformative effects than non-custodial ones. Many people are of the conviction that imprisonment has several undesirable effects first, they argue that it damages mental as well as physical health of the prisoner and secondly, 'hardens' them due to contact with one another in an environment of offenders!, and hence recidivism increases with length, and frequency of custody39.
From the earlier discussion, its clear that a wide range of noncustodial sentences are available to courts. They include absolute and conditional discharge, probation, security for good behaviour, fines, extramural penal, employment, restitution, and settlements. To the above-list, one may add the option, of suspended sentences of imprisonment. They are only potentially custodial in nature, because with the knowledge that he (offender) is subject to a suspended sentence, he is likely to be deterred from breaching the conditions imposed by the court. For this therefore, the 38 39
Also see Slattery.B, A handbook of Sentencing, (1972) at 14041. Walker N. Sentencing, Theory, Law & Practice (1985) 159-69 pp. 241 Page 290 of 382
sentence remains a non-custodial one. However, the situation today is that imprisonment is the most popular mode of dealing with offenders despite the existence of such. a great wealth of alternatives to it. It is therefore suggested that the sentencing provisions of the Criminal Law be amended so as to plug the loopholes in the existing laws:
i)
Imprisonment to be imposed only as a sanction of last resort,
ii)
Imprisonment not to be imposed on minor offenses unless there are aggravating circumstances,
iii)
Imprisonment not to be imposed for first: offenders or for domestic crimes unless the offence be of a serious nature.
iv)
Use of imprisonment for non-payment of fines should be avoided as far as possible and instead, use of extra-mural penal employment should be encouraged.
v)
When non-custodial measures are used, they should be real alternatives to imprisonment, and not in addition, to it. It is only in serious crimes when. and where non-custodial sentences should be combined with imprisonment.
F. COMPENSATION: REVISITED The Kenyan Penal Code and Criminal Procedure Code provide for compensation but they are not adequate. As shown by the case of Muln'ndia –vs-R40, the East African Court of Appeal observed that the power to award compensation,
"... should only be used in the dearest, cases, as when a
40
(1966)EA425. Page 291 of 382
person has suffered a. comparatively minor physical, injury, or has been deprived of property, or whose property has suffered damage, and such deprivation or damage is of readily ascertainable and comparative small value”.
Further, courts are reluctant to make realistic use of the compensatory provisions contained in the Criminal Procedure Code. They have taken the view that fines should be calculated exclusively for the purposes of punishment and not then increased in size merely in order to allow them to be used for compensation purposes41. This is despite the fact that the compensatory fine has been provided specifically to avoid the necessity of subsequent civil proceedings. It is therefore thought: that. these lacunae should be removed and the provisions relating to compensation should be strengthened further to provide that:
1.
Offenders or third parties responsible for their behaviour should, as far as possible, make fair compensation to victims, their families or dependants.
2.
Where a community traditionally recognised the performance of personal services for the victim as adequate reparation or compensation. in kind rather than cash, the courts should still be able to make such orders.
3.
There, should be no limit to the amount of compensation tine court can order. This would leave scope for providing genuine compensation in serious cases. However, the court must assess the offender's capacity to pay.
41
See Mehar Singh-vs-R(1951)6U.I..R. 265. Page 292 of 382
4.
Whenever the evidence is insufficient to support a criminal charge, but establishes a civil wrong, the court should be able to order compensation.
G.
RESTITUTION Under section 177 of the Criminal Procedure Code the court is
empowered to restore property found on accused person to the person who appears to be entitled thereto, the statute confers this discretionary power in the following terms;
Where, upon the appreciation of a person charged with an offence, and property is taken from him., the court before which he is charged may order:
(a)
that the property or a part thereof be restored to the person who appears to the court to be entitled thereto and, if he be the person charged that it be restored either to him or to such other person as he may direct; or
(b)
that the property or a part thereof be applied. to the payment of any time or any costs or compensation directed to be paid by the person charged.
H.
COSTS Under Section 171 (1) of the Criminal Procedure Code
Kenyan law allows for compensaton in limited circumstances to a public or private prosecutor.
Section 171 (2) also allows for the compensation in Page 293 of 382
limited circumstances by a private prosecutor to the accused person who has been discharged or who has been acquitted if the prosecution for the offence was originally instituted on a summon or warrant issued by a court in application of a private prosecutor.
The provision to Section 171(2) sets the compensaton level to the levels of a maximum of Twenty Thousand Shillings in the High Court or Ten Thousand Shillings in the Case of a subordinate court.
This discretionary power is exercisable by a Judge of the High Court or a Magistrate of the subordinate court of the first and second class. The proviso to section 171(1) sets the compensation level to the paltry levels of a maximum of two thousand shillings in the High Court or five hundred shillings in the case of a subordinate court.
I. SENTENCING IN TRAFFIC CASES The Traffic Act Chapter 40.3 of the Laws of Kenya creates offences which invite sentences some of which have characters different from offences under the Penal Code. Some of the offences under the Traffic Act include careless driving which invites a fine for a first offender and the option of a fine and a custodial sentence if the accused has been previously convicted. Other offences are those of dangerous driving and causing death by dangerous driving which, carry optional sentences of fines, custodial sentences or disqualification from driving. Because traffic offences are not crimes 'sensu-strictu.' offenders are permitted to plead, guilty in writing in minor offences like overtaking or speeding. Page 294 of 382
J. YOUNG PERSONS AND SENTENCING It is important to note that a child cannot be sentenced to imprisonment or placed in a detention camp and no child shall be sentenced to death. In R v Susan Akoth42 a 12-year old was charged with murder and attempted murder by throwing the victims into a borehold. She was arrested and kept in custody for about 10 months awaiting to be arraigned in court.
Her advocate made an
application for bail to be granted as provided for in the children’s Act43, Child Offender Rules I the 5th Schedule.
The prosecution had not taken a hearing date for over twelve months
and the advocate for the accused made aother
application seeking an order discharging her from the pending murder trial and a dismissal of the said case on the gorund that the prosecution had failed to conduct the case within the prescribed statutory limitation period and also that the continued maintenance of the case was against the best interest of the child as provided in the Act.
Rule 12 (4) provides that where a case to which paragraph (3) of this rule applies is not completed within twelve months after the plea has been taken, the case shall be dismissed and the child shall not be liable to any further proceedings for the same offence. 42
HCCC No. 236 of 2003 (unreported).
43
Page 295 of 382
In Kaisa v R44 the appellant who was twelve years old was convicted of handling stolen property and was sentenced to seven years imprisonment. On appeal it was held that no one under the age of fourteen years can be imprisoned ; that no more than the minimum sentence should be imposed and that rehabilitation is the most important factor when sentencing anyone so young. The appeal succeeded and a committal to approved school substituted. Section 191 (g) of the Children’s Act lays down that in the case of a child who has attained the age of sixteen years, should be dealt with in accordance with any Act which provides for the establishment and regulation of Borstal Institutions. The High Court had infact ruled on this point in the case of Letoyiani and Another v R45 where Harris J ruled before a court convicts a youthful offender it must first consider whether he should be committed for training to a borstal institution.
K. SENTENCING IN KENYA The Kenyan bench has seen and witnessed diverse attitudes towards sentencing. While the modern bench would find no difficulty in agreeing that reformation and rehabilitation, are the most avowed policies to be pursued, it is not doubted that a section, of it would still be heard to demur to this policy. The concept of reformation is a modern recognition that punishment is not an end in itself; a movement from the classical, concept 44 45
(1975) EA 260 (1972) EA 50. Page 296 of 382
of retribution and deterrence to something more positive. This has been rendered necessary by the fact that problems of offenders are to a large extent linked with a type of psychological, complex not previously realized in the treatment of offenders. What views then, do members of the bench, hold on this aspect of reformation.7 A former Chief Justice, Mwendwa C-J, once said;
"For my part, I am of the persuasion that all things being equal, it is in the very nature of things that courts in Kenya should find themselves laying more emphasis on deterrence, and on the protection of the public than on retribution and reformation. This is in my view what is likely to produce best results in the fight against the criminal element46.
The Honourable CJ (as he then was) was en rapport with the commonly held presumption that deterrent sentences deter. This is not wholly without fault as can be remembered from the earlier discussion on deterrence. The CJ was not responsive to the ideals of reformation. The over-riding aim of reformation is the protection of society by serious and sustained attempts to prevent 'further relapses into crime. But coupled with this aim, there is another; the personal rehabilitation of the offender for his own sake, a point the C-J seemed to ignore. This aspect of personal rehabilitation was expressed in very realistic and plausible terms by Mr. A. K. Saikwa, Commissioner of Prisons (as he then was) that;
"There is now an urgent urge to explore new methods for the prevention of crime and the treatment of offenders
46
The Administration of Justice in Kenya, a talk to the students of A.H.l.T.I Kabete, 1970. Page 297 of 382
which would fairly reflect our society’s interest in protecting
itself
and
yet
would
provide
maximum
opportunity for the individual to turn away from a career of criminal In addition to ensuring secure custody of those who constitute a potential danger to community, our treatment of offenders should aim at discovering in each individual inmate his positive potentials and developing them as far as possible in the setting of a penal treatment towards his rehabilitation.47
The above exposition necessarily skirts the question: should practical considerations of justice lay greatest stress on retribution, deterrence, protection of the public or on reformation? Such a question does not admit of a certain answer vigorously deduced from established facts, and the answer is that a judge or Magistrate would find it impossible to reconcile the four factors. All the court can and needs to do is to weigh the four factors against each other in relation to the convict: himself, the facts of the case and the circumstances prevailing at the time. However, such an approach must lead to disparities between the sentences passed, in different courts and by same Magistrates for like offences. It is submitted that disparity in sentencing is most apparent in cases of intermediate gravity, for the more serious or the less serious case rarely bothers the court. It is the case in the middle where a court is most likely to hesitate. The courts have increasingly come to consider characteristics of the individual offender rather than the nature of his offence. The needs of the individual offender rather than his guilt would form the basis of the sentence passed. The emphasis here is on preventive and rehabilitative 47
An Approach to Penal Administration in E. Africa. East African Law Journal (1966) Vol.2, PP 25. Page 298 of 382
measures. But a warning is sounded that generalization here is dangerous. If on the scale, the offender's personal interest outweigh the demands of public policy of a deterrent sentence, then individualization. of sentence is desirable. On the other hand, in certain offences such as robbery and various shades of corruption in public offices the courts view the need for a deterrent sentence to outweigh other considerations. Therefore, under the general principle of individualization the important factors will be the age of the offender, his status, health and criminal record. The Jurisprudence in Nilsson -vs- R48 that an inquiry as to the character and background of the accused, is necessary before determination of sentence' is therefore sound.
L. CONCURRENT AND CONSECUTIVE SENTENCES The general rule is that where a person commits more than one offence at the same time and in the same transaction, concurrent sentences of imprisonment should be imposed R –vs- Sowedi Mukasa49, however, difficulties arise when we take this approach. Take for example the case of a prisoner, who while in the act of attempting to escape from lawful custody meets a prison warden just outside the prison grounds and hits him on the head with a stone. If the offender gets two years for the attempted escape and one year for assault, the concurrent sentence will be two years yet the assault has aggravated the whole, transaction. In R -vs- Nathani50 Newbold V-P held that 'in order that different acts should make up one transaction, it must be inherent in them that from the very beginning of the earliest act the other acts should either be in contemplation, or necessarily arise therefrom, as from the very nature of the transaction in view, from
48 49 50
(1970)EA599. (1946)13 E.A.C.A C.A. 97. (1965)EA777. Page 299 of 382
component parts of one whole. If, however, the facts establishing two counts are precisely the same and the accused is convicted on one of them, he cannot be punished on the other even if in law it constitutes another offence. In such cases ,therefore, it would be improper to award two sentences to be served concurrently or consecutively. In Seifu s/o Bakari –vs- R51, the appellant was convicted of attempted murder and on a second count of attempting to strike with an arrow with intent to cause actual bodily harm. The second count was in the nature of an alternative, both being founded upon the same act of the appellant, namely, the shooting of the arrow at the complainant. The appellant having been convicted of both counts was sentenced to six years’ imprisonment on the first count and to four years' imprisonment on the second, count, the sentence to run concurrently. On appeal, it was held that as both counts on which the appellant was convicted were founded upon the same act, the greater offence is the first count which included the lesser offence, in the second count, the sentence in respect of the second count contravened section 21 of the Tanganyika Penal Code, which section provided that a person shall not be punished twice for the same offence, and "offence" was defined in section 5 thereof as an act or omission punishable by law. But if the facts disclose two offences involving two separate acts, the accused may be charged with and convicted of and punished for both. In Surat Singh –vs- R52 two accused, persons were convicted of assault causing actual bodily harm of one man, assault causing such harm of a second person and the same for a third person. Each offence took place on the same day but at different times. They were a series of incidents connected with each other. The Supreme Court held that the sentence 51 52
(1960)EA339 (C.A). (1946)13 E.A.C.A 97. Page 300 of 382
should run concurrently, not consecutively. In a later case of Khalif –vsR53 the appellant was convicted of dangerous driving, failing to stop after an accident and another offence. The High Court said that in the circumstances of the case, the sentence of two months for failing to stop will be served concurrently with the sentence for dangerous driving. Concurrent sentences are exclusively awarded for related offences. In Musa s/o Dakar -vs- R54 it was stated clearly that it is the universal practice, in the absence of good reason to the contrary, to order sentences for the related offences of house-breaking and stealing to run concurrently with one another. This practice extends to similar combinations such as theft and fraudulent false accounting, store breaking and theft, and such like combinations. A sentence of imprisonment in default of payment of a fine cannot be made concurrent with any other sentence of imprisonment. In R –vsOfunya55, the Magistrate convicted the respondents of offences under two different Acts. Fines were imposed with prison sentences in default of payment, and ordered that if the respondents went to prison, sentences were to run concurrently. On review, the High Court ruled that the Magistrate's order was improper. What therefore emerges from the foregoing is that concurrent sentences should normally be awarded, not only for offences committed in the same transaction, but also for similar offences committed in a series of transactions. Therefore, except in rare circumstances, where offences are dealt with at a single trial, concurrent sentences should be awarded. This can be justified on the premise that the criteria for joinder of charges and those of concurrent sentences are almost the same.
53 54 55
(1973)EA3G4. (1968) H.C.D (Tanzania) No.239. (1970) EA 78. Page 301 of 382
How then, is the court to deal with an accused convicted of several offences committed in the same transaction, all of which deserve fines. Sadly, there is no clear and direct judicial or statutory authority on how to deal with such a problem. However, Slattery56 suggests that the best solution is for a court to decide on a total fine which is appropriate to the entire wrongful transaction and then to impose individual fines on each count, which total up to the amount decided on earlier. Whether to impose a term of imprisonment or a fine is a question whose primary consideration is the suitability of the sentence for the particular offender.
M.
ALTERATION OF SENTENCE AND COMMITTAL Having noted that a wrong sentence may be imposed by the court, it
is imperative to discuss the principles governing alteration of sentence upon appeal and allied concept of committal to superior court for sentence. Under section 354 (3) of the Criminal Procedure Code, the High Court has power to alter a sentence passed by a lower court. The principles upon which appeal courts will act in reviewing sentences were clearly pronounced in Ogalo s/o Owuora –vs- R57. In this case, it was well stated that the principles upon which an appellate court will act in exercising its jurisdiction to review sentences were firmly established. First, the court does not alter a sentence on the mere ground that if the members of the court had been trying the appellant they might have passed a somewhat different sentence, and it will not ordinarily interfere with the discretion exercised by a trial judge unless as was said in James – vs- R58, it is evident that the judge has acted upon some wrong principle or overlooked some material factor. 56
57 58
Slattery B: A handbook of sentencing, .with particular reference to Tanzania. Nairobi, (East African Literature Bureau.) 1972. (1954)21 E.A,C.A270, (1950)18 E.A.C.A 147. Page 302 of 382
Secondly, the trial criterion is that if the sentence is manifestly excessive in view of the circumstances of the case, the sentence will be disturbed. These principles are analogous to the English Rule of 'non-interference', that is, an appellate court would not interfere with the sentence of a lower court unless satisfied that the sentence was so severe as to amount to a miscarriage of justice. Thus, following the case of Ogalo-vs- R, Harris J in Nilsson –vs- R59said:
"Before an appeal against sentence can succeed this court must be satisfied that there exist to a sufficient extent circumstances entitling it to vary the order of the court below.60
The appeal court will only interfere with a sentence of the court below where and when it is evident that the court has;
(i) acted upon some wrong principles, or ii)
overlooked some material factor(s) or
iii)
where the sentence is manifestly excessive having regard to the
circumstances of the case.
The power of the higher court to review is an important safeguard against apparent injustice in Magistrate's courts, and a recognition of the principle that sentence should fit the crime as well as the offender himself.
N.
COMMITTALS Where a person aged eighteen and over is tried and convicted by a
59 60
See note 59 (Supra). Section 221 of Criminal Procedure Code (Cap 75). Page 303 of 382
subordinate court of an offence punishable by that court, then, if, on obtaining information as to his character and antecedents, the subordinate court is of the opinion, that they are such that greater punishment should be inflicted than it has power to inflict, the court can commit such person to the High Court for sentence. This concept must however be read in the light of the case of Aganyi -VS- R61, an appeal from the supreme court of Kenya, where the court of Appeal for Eastern Africa held that where a Magistrate convicts but commits the accused to the Supreme Court for sentence, any appeal against conviction lies to the Supreme Court and against sentence to the Court of Appeal. From this decision, it would appear that appeals against sentence under section 221 of the Criminal Procedure Code cannot be heard by the Court of Appeal until the appeal against conviction has been determined by the High Court, or time for appealing has expired without an appeal having been filed, or until the accused shows no intention of appealing against conviction. This provides a golden reminder that the system of appeals in Kenya is hierarchical. However, committals are not done haphazardly and [the] practice requires that information about the accused be obtained. Thus in Katungombuki -vs- R62 the appellant was convicted by an African Court of stock theft contrary to section 279 of the Penal Code. The court purporting to act under section 41A of the African Courts Ordinance 1951, ordered that the case should be transferred to the firstclass Magistrate for sentence, presumably on the grounds that the offence merited greater punishment than the lower court could impose. The Magistrate purporting to act under section 41A(2)(a) of the said Ordinance sentenced the appellant to one year imprisonment. On appeal, which was allowed, it was held inter alia that it is only when an African Court has information as to an offender's character 61 62
(1960) EA 66. (1962)EA682. Page 304 of 382
and antecedents and is of the opinion that greater punishment should be imposed than the court has power to impose that the African Court should commit an offender to a subordinate court of the first class. Therefore, one agrees with the decision of the East African Court of Appeal in Mdirango Juma –vs- R63 when dealing with the powers of a court that:
"The power to commit ... is only exercisable if the subordinate court is of the opinion that the character and antecedents' of the offender are such that greater punishment should be inflicted than the subordinate court itself could inflict; the criterion is not the gravity of the offence of which the offender stands convicted.64
It is required further that the court to which the offender has been committed should ask him to either deny or admit his previous convictions. This is rested upon the decision of Sachdeva –J- in Patrick Kanja Muguku –vs- R65, the appellant and two others had jointly been charged before the second class Magistrate at Kikuyu with bar-breaking thereby committing a felony contrary to section 306(a) of the Penal Code. The appellant was convicted and committed to the Senior Resident Magistrate for sentence. The S.R.M sentenced him to two years' imprisonment with five strokes. No inquiries were made regarding his previous convictions by among other things not giving the appellant a chance to deny or admit such previous convictions. The High Court quashed both the sentence and conviction and Sachdeva -J- noted in his ruling that;
63 64 65
(1953)20 E.A.C.A 190. Ibid at 191. Cr.app no.397 of 1983. Page 305 of 382
“... when a convict is committed to a higher court for sentence, it is incumbent upon that higher court to put his record to him again and ask him to deny or admit his previous convictions...”
Before passing a sentence a court of law will examine the accused antecedents and his/her mitigation among other factors.66
66
Asentencing court may be lenient to a convicted person on the ground that he is a first offender. Page 306 of 382
CHAPTER SIXTEEN
CONTEMPT OF COURT PROCEEDINGS
A. INTRODUCTION The law of contempt exists for the purpose of safeguarding the administration of justice. In Kenya the law applicable in contempt is the law for the time being applied by the High Court of justice in England courtesy of section 5(1) of the Judicature Act. In England, contempt is referred to as scandalising the court and is defined as:
"Any act done or writing published which is calculated to bring a court or a judge into contempt, or to lower his authority, or to interfere with the due course of justice or the lawful process of the court. Thus scurrilous abuse of a judge or court or attacks on the personal character of judge are punishable as contempt67.
Section 121 of the Penal Code Cap. 63 Laws of Kenya makes provision for offences relating to judicial proceedings and the punishment to be imposed but is silent as to whether they refer to contempt of court. However, section 121(3) states that the powers thereunder are additional to the power of the High Court to punish for contempt of court. It can be deduced from this that there are separate provisions on contempt of court. When a court "takes cognizance" of an offence under the provisions of section 121(1) of the Penal Code, the court should frame and record thesubstance of the charge, call upon the accused person to show cause
67
Halsbury's Laws of England Vol.7 4th Ed. pp.27. Page 307 of 382
why he should not be convicted upon that charge and give him a fair opportunity to reply. In every such case the record should show that this procedure has been followed and should contain an adequate role of the accused person's reply, if any, and the courts decision. This was held in the case Joseph Odhengo s/o Ogongo v R.68
B. CONTEMPT OF COURT IN CRIMINAL PROCEEDINGS
Contempt of court may be classified either as
a)
Criminal contempt consisting of words or acts obstructing or tending to obstruct or interfere with the administration of justice or
b)
Contempt in procedure otherwise known as civil contempt consisting of disobedience to the judgments, orders or other process of the court and involving a private injury.
C.
CRIMINAL CONTEMPT
Criminal contempt is punishable by imprisonment or a fine or by an order to give security for good behaviour. Any court has inherent jurisdiction to punish criminal contempt by summary process of committal. Summary process is arbitrary and unlimited and must be exercised with the greatest caution. There are certain qualities that are characteristic of contempt of court for instance privilege is not allowed, execution can be carried out by force, discharge from custody may be made conditional on payment of costs and sequestration is inapplicable.
68
(1954) 21 E.A.C.A. Page 308 of 382
D. CONTEMPT IN THE FACE OF THE COURT
The conduct amounting to contempt of court does not have any defined boundaries and it is not necessary that the incident takes place in a court of justice. Any word spoken or act done in the precincts of the court which obstructs or interferes with the due administration of justice or is calculated to do so amounts to contempt of court. It is also unnecessary that the act/word be done/published wholly or partly in a court room itself nor the contempt should be within the knowledge of the judicial officer dealing with the contempt; examples include: -
Assaults committed in court during proceedings either on the presiding officer or a witness giving evidence or counsel or any other officer of the court;
-
Insults to the court when sitting or insulting behaviour directed to the presiding officer
or counsel shown either by language or
manner; -
Interrupting court proceedings wilfully;
-
Contempt by witnesses by refusing to be sworn or after being sworn, refusing to answer questions or prevaricating or remaining in court after being ordered to go out;
-
Contempt by litigants or counsels in language or behaviour which is outrageous or scandalous or which is deliberately insulting to the court.
E. CRIMINAL CONTEMPT OUTSIDE COURT Criminal contempt refers to words spoken, published or acts done outside the court and intended or likely to interfere with or obstruct the fair Page 309 of 382
administration of justice. Some examples include: -
acts in abuse of the process of the court;
-
acts in breach of duty by persons officially connected with the court or its process;
-
Comments on the character of an accused intended to influence judges/Magistrates or prejudice a fair trial, for instance, publishing a criminal record of an accused before trial;
-
Comments on pending criminal proceedings which prejudges merits of the case or which imputes guilt or asserts innocence of a particular accused. Publication before trial of what purports to be the defence to be put forward by an accused may also amount to criminal contempt as was illustrated in the case of R –vs- Makali & 3 Others69. The accused were charged with contempt after reporting that the judgment delivered in the case reeked of state interference.
A court can order that no reports of a court proceedings be published until the proceedings have finally been determined. Any report made in defiance is punishable ascontempt of court even if it is fair and accurate.
F.
PURPOSE OF PUNISHMENT The punishment is inflicted not for the purpose of protecting either
the court as a whole or the individual judges/Magistrates of the court from repetition, of the attack, but for protecting the public, especially those who either voluntarily or by compulsion are subject to the jurisdiction of the court, from mischief they will incur if the authority of the tribunal is
69
Criminal App. No. 4 & 5 of 1994 -The accused were fined KShs. 500,OOO/- or in default imprisonment. See also the earlier case R v Wangari Muta Mathai & Others, Criminal Application No. 53 of 1981, High Court, Nairobi, (unreported). In this case the con'temnor having lost her appeal in a divorce case on the grounds of adultery gave an interview to a Viva magazine (now defunct) alleging that the court was corrupt or incompetent. Page 310 of 382
undermined or impaired. The power to punish for contempt is not and has never been a secret weapon of the courts. It is known or ought to be known by the public that courts do possess that power and in appropriate and necessary circumstances will exercise it. That power resides in the court and any judge of the court can exercise it unless a particular judge(s) of that court has done something which makes him unsuitable to act on the matter like being involved in efforts to bring prosecution or drafting and approving the charges. Criticism of the judges conduct or of the conduct of the court even if strongly worded is not contempt provided it is fair, temperate and made in good faith and is not directed to the personal character of the judge or to the impartiality of a judge or court. Lord Russell of Kiloween in the case of R vs Cray said:
"Judges and courts are alike open to criticism, and if reasonable argument or expostulation is offered against any judicial act as contrary to law or public good, no court could or would treat that as contempt of court.”70
The courts need to balance cases of contempt to maintain its authority with the right to freedom of speech.
G. PERSONS LIABLE The holder of the office of the President is exempted from compliance with the contempt of court law as per the provisions of section 14 of the Constitution which grants him immunity from criminal or civil 70
(1900)2QB36 Page 311 of 382
proceedings.
In all democracies, courts announce that they are prepared and do punish those who commit contempt of court no matter how high they are. An English Judge made this pronouncement;
"I wish to make it plain that in my opinion there is no more important duty which attaches to the Judges Division than that of looking after the members of His Majestys' subjects and their tights. I am speaking only for myself, but if any case is brought before me hereafter in which any person. I care not how high his position or how great his fame be found to have interfered with that right of one of His Majesty’s subjects, I think I should have no difficulty in putting in force with the assistance of the other members of this division the great powers of this Kings' Bench Division of imprisoning such a person for contempt of court.”71 Editors, newspaper proprietors, publishers are persons liable.72They have a defence by proving beyond reasonable doubt that he did not know or had no reason to suspect that the proceedings were pending or imminent. The distributor can also state that at the time of distribution he did not know that it contained any such matter and had no reason to suspect. Onus of proof is on the defendant. Interference with persons over whom the court exercises jurisdiction
71 72
Lord Devlin, Trial by Jury, (Steven and Sons 1956) P.48. In the case of R –vs- David Makali & 3 others the Publisher of 'The People', (a Kenyan weekly paper) - Independent media services was found guilty of contempt and fined a sum of KShs, 500,000/-. See note 3 (Supra). Page 312 of 382
is also treated as contempt. Examples include;
(i) Wards of Court No important step in the child's life without consent of court can be taken for instance marrying the ward. Such actions shall be treated as contempt.
(ii) Mental Disorders Acts in relation to persons suffering from mental disorders for instance in relation to their property without consent of court is treated as contempt.
H.
APPEAL FROM ORDER
The right of appeal lies at the instance of the defendant. As in other cases the proper procedure shall be followed in matters relating to criminal appeal. Notice of appeal must be served on a proper officer.
I. EXECUTION AND DISCHARGE An officer may after a notice, break upon an outer door to execute it. Privilege from arrest cannot be claimed when orders for contempt are being executed. A contemnor is supposed to be treated under special prison rules not to be put in association with convicted persons nor compelled to wear prison dress and should be allowed to send and receive letters subject to such conditions directed by the authority. He can be discharged either after the expiry of term for imprisonment or on payment of a fine or on orders given by the trial court.
Page 313 of 382
CHAPTER SEVENTEEN
APPEALS
A. INTRODUCTION After conviction and sentence the prisoner may appeal against the sentence or conviction or both. The right to appeal is a creature of the statute and is governed by the Criminal Procedure Code. However to properly appreciate the Kenyan position reference to the English history is germane. Prior to 1957 the right of appeal by an aggrieved party to a superior court was by way of case stated1. This method entailed an application by an aggrieved party to the trial court to state the case for the High Courts opinion. In the event that the trial court declined to state the case the aggrieved party would apply to the High Court for an order of mandamus compelling the trial court to state the case. Appeal by way of case stated delimited arguments to points of law to preclude the superior court in exercising this appellate jurisdiction from examining evidence de novo. Unlike the approach via 'case stated’ an appeal is a creature of the statute. Appeals may be divided into two broad categories, namely;
a)
Appeals from subordinate courts; and
b) Appeals from the High Court to the Court of Appeal.
B. APPEALS FROM SUBORDINATE COURTS
1
Orfield Lester, Criminal Procedure from Arrest to Appeal", (Connecticut Greenwood Press, 1973) (P.494). Page 314 of 382
The Criminal Procedure Code provides that a decision of a subordinate court of the first or second class may be appealed against to the High Court. However, if the decision is still upheld, whether wholly or partly, the aggrieved party with the leave of the High Court, may appeal to the High Court2. Such appeals to the High Court may be on matters of fact as well as of law.3 The relevant question here is what amounts to a matter of law and what amounts to a matter of fact. A judicial exposition of this issue may shed some light on it, and the case of The Attorney-General -vsMarakaru4 is helpful. The judicial significance of this case is what is meant by a question of fact and a question of law. Further it states what an erroneous decision in law is. It was said that a decision is erroneous in law if it is one to which no court could reasonably come to. This idea is however not res integra5 as it had infact received judicial consideration in the case of Bracegirdle –vs- Oxley6 where it was held that if justices come to a conclusion to which no reasonable bench of Magistrates could come to, the High Court may interfere because the position is then the same as if the justices had come to a decision of fact which there is no evidence to support. In this case , the issue of questions of law and fact were given elaborate judicial treatment by Denning J (As he then was) he said:
"The question whether a determination by a tribunal is a determination in point of fact or in point of law frequently occurs. On such a question there is one distinction that must always be kept in mind, namely, the distinction between
2 3 4 5 6
Section 347(1) Criminal Procedure Code (Cap 75). Section 347(2.) Criminal Procedure Code (Cap 75). (1960)EA, 484. Point not formally decided in any court of law. (1947)1 All E.R 126. Page 315 of 382
primary facts and conclusions from those facts. Primary facts are facts which are observed by the witness and proved by testimony; conclusions from those facts are inferences deduced by a process of reasoning from them. The determination of primary facts is always a question of fact. It is essentially a matter for the tribunal who sees the witness to assess their credibility and to decide the primary facts which depend on them. The conclusions from these facts are sometimes conclusions of law. In a case under the Road Traffic Act, the question whether a speed is dangerous is a question of degree and a conclusion on a question of degree is conclusion of fact. The court will only interfere if the conclusion cannot reasonably be drawn from the primary facts...7"
The court always has to ask the question whether the determination is one which could be reached by a reasonable tribunal applying its judicial mind. Thus, it was lucidly spelt out in the case of Edwards (Inspector of Taxes) -vs- Bairstow and Another8 that:
"... although an appellate court may allow an appeal from the commissioner's determination only if it is erroneous in law, yet, where a case stated shows on the fact of it no misconception of law, if it should appear to the appellate court that no person, if properly instructed in the law and acting judicially, could have reached that particular
7 8
Ibid at 130. (1953) 3 All E.R 48. Page 316 of 382
determination, the court may proceed on the assumption that a misconception of the law has been responsible for the determination".
The above helps to highlight some of the crucial points to be considered when inquiring whether a matter is one of fact or law. A finding that no court could have come to is an error of law.
C. COMPETENCE OF APPFAL UNDER S 348(A) Under section 348 (A) of the Criminal Procedure Code, 'when an accused person has been acquitted on a trial held by a subordinate court, or where an order refusing to admit a complaint or formal charge or an order dismissing a charge has been made by a subordinate court the AttorneyGeneral may appeal to the High Court from the acquittal or order on a matter of law. This section is relevant to the above discussion on questions of law and fact in that it deals with matters of law. Once this is understood, the issue will have been resolved because the remainder will be matters of fact. This section has been considered by the High Court of Kenya. In R vs- Wachira9 the respondent was charged with forging a vehicle licence and logbook and will) altering the licence. The prosecution case was that dates on those documents had been altered and the triplicate licence was produced. The Magistrate acquitted the respondent, holding that there was no case for him to answer. The appellant appealed and the High Court ruled that a finding that there is no case to answer is a finding of law from which an appeal lies. Whether the finding of no case to answer was a finding of law or fact was the contended issue, since an appeal lies under section 348(A) of Criminal Procedure Code by the Attorney-General only
9
(1975)EA262. Page 317 of 382
on a matter of law. It was noted by Hancox and Trevelyan JJ that it has been settled for long that sufficiency or otherwise of the evidence at the close of the prosecution case, as to require an accused to make his defence thereto, is a matter of law. The High Court also had occasion to consider the said section in the case of R -vs-kitdasa10. In this case the appellant appealed against the acquittal of the respondent contending that the Magistrate had not come to proper findings on the evidence before him and that by his failure he had erred in law, thereby giving a right of appeal. The High Court at Nairobi presided over by Hancox and Trevelyan JJ held that the Magistrate came to a conclusion on the evidence to which no court properly directing itself could have come and this was error in law. The case was therefore remitted to the Magistrate to prepare a fresh judgment without hearing further evidence. Their Lordships found no reason to depart from the rationale provided by the earlier case of R –vs- Mallo11, in. that if the subordinate court has clearly erred on law, it has thereby precluded itself from giving any or adequate-consideration to the rest of the evidence. In other words, having administered to itself an erroneous direction on the law, it is prevented from coming to a proper conclusion on the facts.
D.
LIMITATION OF TIME
Section 349 of the Criminal Procedure Code provides that;
"An appeal shall be entered within fourteen days of the date of the order or sentence appealed against.12
10 11 12
(1973)EA368. (1958)EA11. Chapter 75 of the Laws of Kenya Criminal Procedure Code. Page 318 of 382
The proviso to this section allows an appeal to be entertained even though it is time barred, if the appellant has good grounds or reason for the delay. One of the reasons is that of the appellant's or his advocate's inability to obtain, a copy of the judgment or order appealed against and a copy of the record, within a reasonable time of applying to the court there. The court in Haining and Others –vs- R13 had the occasion to comment on the issueafter having been sentenced to imprisonment by the High Court the applicants applied informally to the sentencing judge for leave to appeal, which leave he granted. On the appeal coming on for hearing, it was struck out as incompetent. The appellant thereafter made his application for leave, to appeal and to appeal out of time, submitting that the mistake of their advocates should not prejudice them. The respondent argued that leave should first have been sought from the High Court. Lutta J.A held that leave to appeal cannot be granted other than on a formal motion and that under the circumstances, sufficient reason had been shown for granting leave to appeal out of time. The application was allowed. However, the court pointed out that although there was sufficient reason for the appeal, the judge had improperly granted, leave to appeal as he had done so upon an informal motion. It is noteworthy that no appeal is allowed where an accused person, has been convicted on his own plea of guilty. However, an appeal, may be even in such cases but only to determine the legality of the sentence14.
E. SUMMARY REJECTION AND PRECISION OF THE APPEAL Section 352 of the Criminal Procedure Code allows for an appeal to
13 14
(1971)E.A421. Section 348 - In the case of David Mbewa Ndeda v Republic Criminal Appeal No. 1 of 1989 the Kenyan Court of Appeal composed of Justices of Appeal Gachuhi, Masime (Now deceased) and Omolo (then Ag. Judqe of Appeal) while confirming the statutory position stated that 'the plea mus'l have been unequivocal citing an earlier case of Mains vK (1973)EA 445 16. EA 380. Page 319 of 382
be summarily dismissed. There are various grounds on which such a dismissal may be ordered. A summary dismissal without the appellant or his advocate being heard. Arnold Pudo s/o Aranda –vs- R15 considered, the issue and the court' of Appeal's decision thereon forms the 'locus classicus' on it. The appellant was convicted by a Magistrate of shop breaking and theft and was sentenced to six years' imprisonment. The supreme court summarily rejected the appellant's appeal against conviction and sentence under section 352(2) of the Criminal Procedure Code, without the appellant
OK
his advocate being heard in support of it. On a
second appeal it was contended that the supreme court was not entitled to summarily reject an appeal under section 352(2) except where the grounds of appeal are that the conviction is against the weight of evidence, or that the sentence is excessive whereas in the instant case a ground of appeal was that "the Magistrate erred, both on a point of law and facts". It was held, in dismissing the appeal, that: Firstly, the ground of appeal, that "the Magistrate erred on both point of law and facts" was too vague to constitute such a ground of appeal as to take it (appeal) outside section 352(2) and in view of the mandatory requirements of section 350(2) of the Criminal Procedure Code, the supreme court quite properly ignored it as being no proper ground of appeal, at all and would have been within its rights to have struck it out. Secondly, it was held that since the remaining grounds of appeal, admittedly fell within, section 352(2), the Supreme Court had jurisdiction to dismiss the appeal summarily.
Section 352(2) empowers the court to reject an appeal summarily if, and only if, the appeal is brought on the ground "that the conviction was against the weight of evidence; or that the sentence is excessive."
15
(1960)E.A380. Page 320 of 382
Various other cases have dealt with the issue. The cases of Karioko s/o Gichohi –vs- R16; Lighton alia Magege –vs- R17 and Mulakh –vs- R18 were likewise concerned with the summary rejection of appeals under section 352(2) of the Criminal Procedure Code and in each case, the Court of Appeal in allowing the appeals held that a first appeal may be rejected summarily under the relevant section without the appellant, or it's advocate being given an opportunity of being heard, only if the memorandum of appeal contains no ground of appeal other than that the conviction is against the weight of evidence or that the sentence is excessive. In all the above three cases, the other grounds of appeal which took the appeal, outside the section providing for summary rejection of appeals were specific, the respect in which the trial court was alleged to have erred being stated with particularity. However, in the Pudo s/o Aranda case, it was otherwise. It was not only too vague to say that the Magistrate erred on point of law and of fact but it was inconsistent with the statutory requirement regarding particularity, and therefore the memorandum was too wanting in precision to constitute a proper ground of appeal so as to take it outside the section providing for summary rejection.
The Criminal Procedure Code requires that:
"Every petition of appeal shall... contain particulars of the matters of law or fact in regard to which the subordinate
16 17 18
(1950)17 E.A.C.A 141 (1951)18 E.A.C.A 309 (1954)21 E.A.C.A 383 Page 321 of 382
court appealed from is alleged, to have erred...19 "
Therefore, if the memorandum raises no specific question or point of law or fact, it will squarely fall within, summary rejection. Intact, courts deprecate the indiscriminate use of a form of memorandum in terms so general as to he valueless considered as grounds of appeal. It has been pointed out by the court of Appeal in Rutehendra s/o Mutemba –vs- R20 that;
"... such ... must be intelligently applied to the facts of the case as revealed by the evidence and not degenerate into drafting a stereotyped form of memorandum..."
This underscores the importance of clarity and relevance of the ground(s) of an appeal to the adduced evidence of the lower court from which the intended appeal is coming. Failure to observe this may seem an otherwise meritorious appeal being dismissed summarily. The case of Kuyate –vs- R21 has also discussed when summary procedure is applicable on appeal to the High Court. The court observed that an appeal can only be summarily dismissed if the court considers that the evidence before the lower court leaves no reasonable doubt as to the accused's guilt and that the appeal is frivolous or without substance. It is noteworthy that an improper dismissal of an appeal under the summary procedure is an appealable error of law. In Kamau –vs- R22 the appellant was convicted of robbery with violence, on the evidence of a 19 20 21 22
Section 350 Criminal Procedure Code (Cap. 75). (1953)20 E.A.C.A 276. (1967)E.A815. (1975)E.A139 Page 322 of 382
single identifying witness who saw him in the light of an electric bulb and identified him six weeks later. Another eye witness failed to identify him. There was no corroborative evidence. The appeal to the High Court was summarily rejected. On further appeal to the Court of Appeal it was held that whether a conviction on the identification of a single witness can be maintained is a question of mixed law and fact the appeal should not have been summarily dismissed, and the appeal, to the Court of Appeal was allowed.
F. SUMMARY ALLOWANCE OF APPEALS When an appeal is lodged against conviction a judge of the superior court will peruse the entire record including the grounds as set out in the Memorandum of Appeal. If upon perusal of the record the judge is of the opinion that the conviction cannot be supported then pursuant to section 352A of the Criminal Procedure Code, if the Attorney General has also informed the court in writing that he does not support the conviction, the judge may summarily allow the appeal.
G. ADMISSION OF ADDITIONAL EVIDENCE ON APPEAL The law prohibits the admission of new evidence on appeal. It is required that only the evidence which, was adduced at the trial should he entertained. However, the law recognizes that sometimes material evidence may not have been available at the time of the trial. In such cases, it has allowed new evidence to be produced in the court exercising appellate jurisdiction23. This is left to the discretion of the court. The discretion should however be exercised along well-defined guidelines and which guidelines must be those that are well settled. The said principles were laid
23
See section 358 Criminal Procedure Code (Cap 75). Page 323 of 382
down by the Court of Appeal for East Africa in the case of Elgood –vsR24. The appellant Doctor was charged in the supreme court of Seychelles with several counts of procuring for women drugs knowing that the drugs were intended to be used to procure miscarriages contrary to law. He was convicted upon medical evidence given, for the prosecution by three doctors and inferences drawn from a statement made to the police by the appellant himself. Medical evidence was also given for the defence by three doctors. There was considerable disagreement between medical witnesses, only one of whom had special qualifications in the particular field concerned, and that one had only limited specialist knowledge. On appeal the appellant applied to call additional evidence, which was not available in Seychelles, from a highly qualified and experienced specialist in obstetrics and gynaecology. This evidence was admitted, and it was to the effect that the treatment given by the appellant was perfectly legitimate therapeutic treatment which would not possibly lead to an abortion. The appeal was thus allowed and in its ruling, the court made the following observation, namely, the principles upon which additional evidence may be admitted:
1.
The principles upon which an appellate court in a criminal case will exercise its discretion in deciding whether or not to allow additional evidence to be called for the purposes of the appeal are;
a)
the evidence that is sought to be called must be evidence which was not available at the trial;
24
b)
it must be evidence relevant to the issues;
c)
it must be evidence which is credible in the sense that it is
(1968) E.A 274. Page 324 of 382
well capable of belief and d)
the court will, after considering that evidence, go on to consider whether there might have been a reasonable doubt in the mind's of the jury as to the guilt of the appellant if that evidence had been given together with the other evidence at the trial. (For this particular ruling, the English case of R -vsParks25 was applied).
2
That it is in very exceptional cases that the Court of Appeal will admit additional evidence, or permit it to be called.
3
An affidavit in support of an application, to admit additional evidence should have attached to it a proof of the additional evidence sought to be given.
The court applied these principles as earlier pronounced in the R –vsParks case26. In this case Parker, C-J noted:
"Those principles can be summarized in this way; First the evidence that is sought to call must be evidence which was not available at the trial. Secondly, and this goes without saying, it must be relevant to the issues. Thirdly, it must be evidence which is credible evidence in the sense that it is well capable of belief; it is not for this court to decide whether it is to be believed or not, but it must be evidence which is capable of belief. Fourthly, the court will after considering that evidence go on to consider whether there might have been a reasonable doubt in the minds of the jury as to the guilt of the appellant if that evidence had been 25
(1961)3 All E.R 633.
26
Supra. Page 325 of 382
given together with the other evidence at the trial".
As noted above it is in very exceptional circumstances that an appeal court will admit additional evidence. It will not take such further evidence for the purpose of filling in a gap in the prosecution case. The case of Sirasi –vs- R27 elucidates this. However, the appellate court may call for additional evidence to elucidate evidence already on record (Yakobo –vsR28). These are only guiding principles and there are no strict hard and fast rules as each case must depend on its own peculiar circumstances and conditions.29 An appeal court is likely to take and admit additional evidence in circumstances where there is a reasonable possibility that the additional evidence could afford ground for allowing an appeal. A person may be admitted to bail pending appeal as granted, by section 357 of the Criminal Procedure Code. The Criminal Procedure Code provides that appeals from subordinate courts shall be heard by two judges of the High Court, except when in any particular case the Chief-justice directs that the appeal be heard by one judge of the High Court. If the opinion of the court is equally divided, the appeal is to be reheard before three judges30.
H.
APPEALS FROM THE HIGH COURT Appeals from the High Court lie to the Court of Appeal. A party to
an appeal, from a subordinate court may appeal against a decision of the High Court in its appellate jurisdiction on a matter of law. The court of Appeal is not to hear an appeal on a matter of fact. Its noteworthy that severity of a sentence is a matter of fact and therefore an appeal does not 27 28 29 30
(1936)3 E.A.C.A. 40. See also Rule 29 of the Court of Appeal Rules. (1945)12 E.A.C.A. 60 Mohammed Hussein -vs- Price Controller (1943)10 E.A.C.A 72 Section 359 Criminal Procedure Code (Cap 75). Page 326 of 382
lie to the Court of Appeal.31 However, the Court of Appeal's jurisdiction to entertain an appeal from the High Court is subject to various other limitations. The Court of Appeal's jurisdiction is ousted with regard to a refusal by the High Court to admit an appeal out of time under section 349 The above decision by the High Court is final.32
I. CONSTITUTION OF THE COURT IN ITS APPELLATE JURISDICTION The Court of Appeal should be properly constituted so that a fair hearing is afforded to both the respondent(s) and the appellant(s). The importance of a proper constitution, of the court was understood in Fazal Tyabali and Another –vs- R33. The appellants who had been convicted by the Resident Magistrate at Mombasa appealed to the Supreme Court. The two judges who heard their appeals were unable to agree, and so under section 358 of the Criminal Procedure Code, the appeals were re-heard by three judges who dismissed the appeals. The appellants then appealed to the Court of Appeal on the sole ground that the court which re-heard the appeals was improperly constituted because it included one of the judges who had sat on the court which first heard their appeals, and it was argued that natural justice demanded that either both the judges who sat on the hearing of the appeal should so sit. The court held that it was not prepared to say that the decision, of the appellate court on the rehearing was invalid. Per Curiam it was noted by the court;
31 32 33
Section 361(l)(a) Criminal Procedure Code (Cap 75). Section 361(8) Criminal Procedure Code (Cap 75). (1959)E.A 29,, It is important to note that by parity of reasoning, this colonial position is true of the position in Kenya today as found under the present section 359(2) of the Criminal Procedure Code Chapter 75 of the Laws of Kenya. Page 327 of 382
".... we think that it may be better, for the sake of appearance,
where
this
is
possible
and
not
very
inconvenient, that both judges who first sat, or neither, should sit on the re-hearing pursuant to section 358..."
Section 359 of the Criminal Procedure Code provides that appeals from subordinate courts shall be heard by two judges of the High Court except where in any particular case the Chief-Justice shall direct that the appeal be heard by one judge of the High Court. It further provides that if on the hearing of an appeal the court is equally divided in opinion the appeal shall be re-heard before three judges. The law does not prescribe how the court which re-hears an appeal pursuant to section 359 is to be constituted, or which disqualifies either or both of the judges who sat on the first hearing. In the above case, the court of Appeal ruled that the question of natural justice notwithstanding, the fact that one of the judges who first heard the appeal sat on the rehearing of the appeal does NOT invalidate its decision. In delivering the court's judgment, Sir Kenneth O'Connor re-asserted Darling J’s view viz:
"... it is a great mistake to suppose that the trial judge would be inclined to set up his own view against the opinions of his brethren "or" to fight for his own hand34".
Whether Darling's -J view is plausible, is a matter that needs to stand and contest modern judicial sanctity in which questions of natural justice are being given their proper and imperative perspective, Therefore, if natural justice is to have any meaning, the two judges who sat on the first appeal
34
In R -vs- Bennett and Newton, 9 Cr. App. R 146. Page 328 of 382
should either sit again (both) so that there is "equal bias" other than tilting the "balance of bias" by having only one of the two to resit. It is however much better that both do not re-sit again. These are the strange imperatives which are required by natural justice which arguably ought to be central, in every trial or session in which the guilt of a person is determined.
]. APPEAL IN THE ABSENCE OF WRITTEN RECORDS Sometimes, the Court of Appeal may be confronted with an appeal where no written records of the lower court's decision are available. This is a difficulty which the Criminal Procedure Code has not focused sharply on but the courts have filled the lacunae. The course to be followed where no such records are available was given by the East African Court of Appeal inn Misana –vs- R35. The appellant, formerly a District Magistrate was convicted by a Resident Magistrate of theft. He appealed to the High Court and the judge, ordered that additional evidence be taken, the judge again considered the appeal, and made a note that judgment would be delivered later, the 6th of August 1966. That judgment was never delivered. On November 30, 1966, Platt J considered the matter and, since it appeared that on 6th August 1966 the Judge had "verbally" announced, that the appeal was dismissed and reasons would be given later, allowed the appellant to appeal to the court of Appeal. In February 1967, the Court of Appeal considered the papers and ordered that the proceedings before the trial Magistrate be copied to form part of the record. Subsequently the Court of Appeal in the absence of the appellant further considered, the appeal and ordered, a re-hearing before the High Court. The reasons for the re-hearing were given as that there being no written record of the decision of the High Court nor any reasons for the decision, the only proper cause
35
(1967)E.A334 Page 329 of 382
was to remit the matter to the High Court for the original, appeal to be reheard. This was in accordance with the principles behind the decisions in the two cases of Zaver –vs- R36 and Yosefu Muwonge and two others –vsUganda37 where the Court of Appeal ordered a re-hearing in cases where the record or an important part thereof had been lost.
K.
CONCLUSION From the above, it is clear that there are various principles upon
which the appellate court will allow or dismiss an appeal. The overriding principle is that if a failure or miscarriage of justice has been occasioned, then an appeal would, be allowed. A simple procedural error that is not of such. Great weight as to occasion a failure of justice cannot warrant the appeal being allowed. Thus, the Court of Appeal in Murimi -vs- R38 noted that it does not reverse a conviction on account of any error by the trial court unless the error has intact occasioned a failure of justice. It must however be understood that procedural propriety is very important and that the rules of procedure are framed to provide a fair trial. A breach of the procedural rules therefore raises a presumption that there has been an unfair trial ,However, trivial defects which have not occasioned a failure of, or miscarriage of justice will not be enough ground of appeal. There are commonly known grounds of appeal. These include:
i)
Defects in the Charge.
ii)
Wrongful admission of evidence.
iii)
Wrongful exclusion of evidence.
iv)
Absence of Corroboration.
36
(1952)19 E.A.C.A 244. Cr. App. No. 86 of 1965 (unreported).
37 38
(1967) E. A 542. Page 330 of 382
v)
Misdirection as to the law or procedure applicable to the case in question.
vi)
Inadequate interpretation: It should be noted here that a word has no absolute meaning. Its meaning is relative to the context. Thus in Shire39 the case depended on the interpretation, of the word meat under the Eldoret Municipal by-laws. The High Court held that the word meat includes meat: and offal of any animal intended for human consumption irrespective of whether it has first to be cooked or not.
vii)
Where there has been a miscarriage of justice due to an error of procedure.
viii) A decision which is unreasonable and cannot be supported having regard to the evidence adduced. ix)
An unlawful sentence.
These are some of the more common grounds of appeal, but the list is not closed. As the legal system develops, one would hope that more grounds will be continually added so that an aggrieved party has all the legal machinery at his service.
39
(1967)E.A39. Page 331 of 382
CHAPTER EIGHTEEN DIRECTIONS IN THE NATURE OF HABEAS CORPUS A.
INTRODUCTION Habeas Corpus applications in Kenya are made under section 389 of
the Criminal Procedure Code but a proper appreciation, of its dynamics demands a look at the English history. Habeas Corpus belongs to the province of prerogative writs whose history is traceably within the history of common law. The writ of habeas corpus is one of the most celebrated writs in the English law. There are various types of the writ as used in English, legal systems. For example, the writ of ‘habeas corpus ad subjiciendum’, which is commonly known as the writ of habeas corpus and is a prerogative process for securing the liberty of the subject by affording an effective means of in immediate release from unlawful or unjustifiable detention, whether in prison or private custody. By it the court, at the instance of a party aggrieved, commands the production of that subject, and inquire into the cause of imprisonment. If there is no legal justification for the detention, the party is ordered to be released. Release on habeas corpus is not an acquittal 1 and further the writ cannot be used as a means of appeal2. An other writ, 'habeas corpus adrespondendum may be issued by the court. The object of this writ is to bring up prisoners who are detained in custody under civil or criminal process before Magistrates or courts of record for trial or examination on any oilier charge. The Criminal Procedure Code has provided directions and given power to the High Court to issue directions of the nature of habeas corpus. The Criminal Procedure Code at section 389 has empowered the High
1
2
SaundersJohn, Words and phrases legally defined", 2nd Ed, London, Buttersworths,1969 Vol.2 pp.341. II Halsbury's Laws, 3rd ed. 24. Page 332 of 382
Court to issue the directions. There are various reasons which may necessitate the issuance of the directions as discussed below. The writ of 'habeas corpus' provides an efficacious means of testing the validity of a person's imprisonment or detention. Nominally sought by the crown, the remedy is in reality freely available to any prisoner and to any one acting on his behalf, without regard to nationality3. Thus an alien detained pending deportation can apply for 'habeas corpus' to question the validity of the deportation order for example by alleging that what is asserted, to be lawful deportation is in fact unlawful extradition at the request of a foreign government. This was in fact the situation in R -vsHome Secretary ex parte Soblen4.
B.
TERRITORIAL AMBIT OF HABEAS CORPUS The common law does not recognize, the effectiveness of judicial
process outside the territorial jurisdiction, of the court and it is only by statute that a court has power to exercise jurisdiction, over anyone found beyond its territorial limits. Habeas Corpus is one of the prerogative writs, and rather than raise an issue between two parties which is to be decided by a court having jurisdiction over them (both), it is supposed to issue on the part of the state so that it can have an account of any of its subjects who are imprisoned. The case of Witherley –vs- Witherley5 is in point. The writ is said to depend not on the ordinary jurisdiction of the court for its effectiveness, but upon the authority of the sovereign over the subjects. While this does not in itself make it possible to sue the writ to a foreign country, even where the respondent is a subject of the crown6, it does give
3 4 5 6
Wade, H.W.R, Administrative Law, 3rd ed, Oxford, Clarendon Press, 1971 (Chapter 4.) (1963)2 QB243. (1608)2 Rolle's Abridg. 69. R -vs- Pinckrey (1904)2 K.B 84 - Holding that the writ could not even be issued and allowed to lie until the respondent returned. Page 333 of 382
the writ an extraordinary territorial ambit7. At common law, all the prerogative writs had this broader ambit1 and were said to include all parts of the Queen's dominions8. Thus in England, the power to send the writ outside England was based on the common law. However, the 1862 Habeas Corpus Act greatly curtailed the power9.
C. HABEAS CORPUS UNDER KENYAN LAW In Kenya, section 389(1) confers the High Court with the power to entertain, applications for Habeas Corpus. It provides that; "The High Court may whenever it thinks fit direct”
a)
that any person within, the limits of Kenya be brought' up before the court to be dealt with according to law;
b)
that any person illegally or improperly detained in public or private custody within those limits be set at liberty;
c)
that any prisoner detained in a prison, situated within those limits be brought before the court to be there examined as a witness in any matter pending or to be inquired into that court;
d)
that any prisoner so detained be brought before a court martial or commissioners acting under the authority of a commission from the President for trial to be examined touching any matter pending' before the court martial or commissioners respectively;
e)
that any prisoner within those limits be removed, from one custody to another for the purpose of trial; and.
f)
8 9
that the body of a defendant within those limits be brought in on a De Smith S. A. "Judicial Review of Administrative Action" pp.'517 3rd ed. London. Stevens 1973. PP.514 Witherley-vs-Witherley (1608)2 Rolle's Abridg.69. Sharpe R.J "The Law of Habeas Corpus" (2nd ed, Oxford, Clarendon press, 1989) Chapter 8. Page 334 of 382
return of cepi corpus to a writ of attachment.
A pertinent question which has arisen is whether the procedure in. habeas corpus is criminal, or civil, The question is still moot but the decision in the case of Grace Ibingira and others –vs- R10 is instructive. Sir Charles Newbold, reading the judgment of the Court of Appeal observed as follows:
That "any application for the writ of habeas corpus ad subjuciendum and subsequent proceedings would normally be civil proceedings; being criminal only if, should the applicant not be released, the immediate result would be either his trial on a criminal charge or his return to prison to serve a sentence".
The question of habeas corpus, its procedure and application has been treated differently by the courts. While on the one hand the court has seen it as a civil matter, it has at other times regarded it as a criminal matter. The colonial day case of Probat Shah11 is germane in this regard. In the case the appellant applied to the Supreme Court" for directions in the nature of habeas corpus. The appellant had not been charged, nor was it intended that he would be charged with any criminal offence, and there was, thus, no conviction after trial so as to bring into existence the right of appeal either under section 360 or 37812 of the Criminal Procedure Code. The matter arose out of the arrest, and detention of the appellant under a deportation order. The court was treated to the dictum in Lall Khan –vs-
10 11 12
(1966)E.A445. (1955)22 E.A.C.A 381 Section 378 by Act No. 13 of 1967 - Criminal Procedure Code (Cap 75). Page 335 of 382
R that so far as Kenya is concerned, the issue of prerogative writs, is by section 389(1) of the Criminal Procedure Code allocated, to the exercise of the criminal jurisdiction and not the civil jurisdiction of the Supreme Court. It was contended that although the application to the Supreme Court was in form, a criminal proceeding, it was, in substance a civil proceeding. The East African Court of Appeal held that in Kenya, the Supreme Court has jurisdiction to entertain applications for prerogative writs on earlier its criminal or civil side, according to the nature of the proceeding. It further held that no appeal lay from a judgment refusing a prerogative, writ in a criminal, cause or matter. This position, prevails even in other jurisdictions. Viscount Simon L.C in Amand-vs- Home Secretary and Another13 said:
"If, however, the application for the writ of habeas corpus is refused and
the question arises whether an appeal lies
against such refusal, a distinction must be made. If the judgment of the High Court refusing the writ is in any criminal cause or matter, no appeal lies. If it is not, an appeal is competent ... it is the nature and. character of the proceedings in which habeas corpus is sought which provide the test. If the matter is one the direct outcome of which may he trial of the applicant and his possible, punishment for an alleged offence by a court claiming jurisdiction to do so the matter is criminal”.
13
(1943) A.C 147 at 155,156, Page 336 of 382
D. APPLICATION FOR HABEAS CORPUS UNDER KENYAN LAW The Chief Justice of the Republic of Kenya is empowered under section 389(2) to make rules to regulate the procedure in cases of Habeas Corpus. Acting pursuant to the Legislatures imprimatur vide LN.474/1963 rules known, as “Criminal Procedure (Directions in the Nature of Habeas Corpus) Rules’ were made, and now applications for Habeas Corpus are sought pursuant thereto. All applications are made 'ex parte1 in. the first instance14. If an application is not dismissed at the 'ex parte' stage the judge will order issue of summons15 directed to the person in whose custody the person alleged to be improperly detained is said to be requiring him to appear in person or by advocate at a prescribed place and time to show cause why the person so detained should not be forthwith released. Under rule 7 the summons issued under rule 3 must be accompanied by all affidavits lodged in support of the application. The note also requires that the summons and affidavits be forwarded, to the Attorney General. Rule 5 requires that replying affidavits should be in duplicate. One copy shall be served on the applicant. Rule 7 permits admission of a detained person to bail pending return of summons issued under rule 2. At the hearing of one application for habeas corpus the application shall begin and the party resisting the application shall he heard with the applicant being entitled to reply16.
14 15 16
See Rule 2 and the case of Phillip Ratemo v Republic Misc. Application No. 465 of 1955. Rule 3 Rule 9 Page 337 of 382
CHAPTER NINETEEN REVISIONS A.
INTRODUCTION Revision is a power bestowed upon a court to revise the records of
an inferior court Section 362 of the Criminal Procedure Code empowers the High Court to call for and examine the record of any Criminal proceedings before any subordinate court. This it does to satisfy itself as regards the correctness, legality or propriety of any finding, sentence or order recorded or passed, and also as to the regularity of any proceedings of any such subordinate court. A Subordinate Court of the first class is also empowered to call for and examine the record of any criminal proceedings of a subordinate court of a lower class than it and established, within its local limits of jurisdiction1. If the subordinate court finds that the sentence, order or finding of the lower court is illegal or improper, or that the proceedings were irregular, it is required that the record, with its (court's) remarks thereon be forwarded to the High Court2. The powers of the High Court when exercising its revisional jurisdiction are defined by the Criminal Procedure Code at section 364. It is provided that in the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or has otherwise, come to the knowledge of the High Court, it may, if in the case of a conviction exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358 (Criminal Procedure Code) and enhance the sentence. These powers of appeal are discussed later. But if it is in the case of any other order other than an order of acquittal, it may 1 2
Section 363(1) Criminal Procedure Code (Cap 75). Section 363(2) Criminal Procedure Code (Cap 75). Page 338 of 382
alter or reverse the order.3 The High Court cannot inflict a greater punishment for the offence which in the opinion of the High Court the accused has committed than might have been inflicted by the court which imposed the sentence4. Section 364(5) states that when an appeal lies from a finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. The High Court when exercising its powers of revision has a discretion to hear or not to hear the parties either personally or through their advocates. However, the court may hear any party either personally or by an advocate5. This is so considering the requirement of section 364(2) which states:
''No order under this section shall, be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence".
All proceedings before the High Court in the exercise of the revisional jurisdiction may be heard and any judgment or order thereon may be made or passed by one judge. But if and when the court: is composed of more than one judge and the court is equally divided in opinion, the sentence or order of the subordinate court shall he upheld6. Upon revision by the High Court, it shall certify its decision or order to the Court by which the sentence or order so revised was recorded or passed 3 4 5 6
Section 364(1) (a) (b) Criminal Procedure Code (Cap 75). Section 364(5) Criminal Procedure Code (Cap 75). Section 365 Criminal Procedure Code (Cap 75). Section 366 Criminal Procedure Code (Cap 75). Page 339 of 382
and that court is to make orders in conformity with the decision so certified and where it is necessary shall amend, the record to accord with the decision7. This is briefly the procedural requirements when a court either subordinate or the High Court has to exercise revisional powers. Having so described the procedure, it is necessary to examine how courts have exercised this jurisdiction and further how the procedure, as laid in the Criminal Procedure Code has been applied.
B. REVISION IN PRACTICE One of the questions which have arisen with regard to revision is whether it is competent for the court to revise its own order made on revision, that is, if the court has revised an order is it competent for it to purport to revise that ' revision' This particular problem received judicial consideration in the Ugandan case of Kiwala –vs Uganda8. It considered whether the High Court can revise its own order made on revision. The respondent, a public servant was convicted of stealing some l0,000/= by servant contrary to section 252 of the Ugandan Penal Code, by a Chief Magistrate, and was sentenced to a fine of 5,000/- or 18 months imprisonment in default. Before this sentence was imposed the respondent by his counsel indicated that he would pay back the money which he had stolen within seven days, and this influenced the Chief Magistrate in imposing the sentence which he did. The money was never infact paid back. In the course of a subsequent application for bail pending appeal to the High Court, the judge of his own motion reduced the sentence to six months on the ground that 18 months was illegal as an alternative to a Shs. 5,000/- fine. The D.P.P then made the present application for a revisional 7 8
Section 367 Criminal Procedure Code (Cap 75). (1967)EA758 Page 340 of 382
order to enhance the sentence. It was argued that a fine of Shs. 5,000/- or six months' imprisonment in default was so inadequate as to involve a miscarriage of justice. Sir Udo Udoma C-J, held that it was competent for the judge to correct the sentence Suo Motto on the bail application. The application was allowed and the original sentence set aside and a sentence of six years' imprisonment substituted. An appeal against this order was obliged, the appellant claiming that the C-j had no jurisdiction to make this order because the matter had already been dealt with on revision. The court of appeal for East Africa allowed the appeal and held inter-alia that:
(i)
the order of the judge reducing the sentence was not made on appeal and could only have been made in the exercise of his powers of revision under the Criminal Procedure Code;
(ii)
the C-J had no jurisdiction to proceed to a further revision of the sentence as the matter had already been revised.
The general rule on which the above rests is expressed by the maxim 'INTEREST REIPUBLICAE UT SIT FINIS LITIUM', that when an act is the subject of litigation and final judgment is entered by a competent court, that is the end of the matter except where there is statutory provision for further consideration of that judgment on appeal or on revision. But once that right has been exercised and the appeal or revision heard, then again the litigation, comes to an end unless there is again more statutory provision for further appeal or revision. The Criminal. Procedure Code only provides for one revision. No provision is made for further revision or for the High Court to revise its own order of revision. The court once it has exercised its powers of revision is "functus officio" and has no authority to revise its own orders. This is further spelt out by the case of R –vs- Sironga
Page 341 of 382
and Mindo9 in which Hamilton. C-j said;
"On the other hand the capacity in which the High Court passes an order confirming a sentence has to be considered, for if it has exercised its revisional powers, I am then in agreement with the argument that it is "functus officio" and cannot subsequently revise an order so made10".
In this case it was held that an order passed by the High Court in confirmation cannot be the subject of revision, and this would be even more clearly the reason when the first order was one passed in revision. This decision has been subjected to further judicial consideration without dissent. The subsequent cases of Suleman Ahmed –vs- R11 and Michael Meshaka –vs- R12 have not had the effect of changing that position and have only given it more weight. The two cases dealt with the question, as to when an order passed in confirmation became a revisional order and on the right of appeal to the High Court. The emanating judicial pronouncements indicate that a conviction or a sentence merely confirmed remains that of the subordinate court and an appeal lies to the High Court; but where a conviction or sentence has been altered this then becomes a revisional order of the High Court and no appeal lies to the High Court, Therefore, once the High Court has made a revisional order it cannot revise it again and only an appeal can be lodged to the Court of Appeal, if such provision has been provided. One therefore agrees with the East African Court of Appeal that:
9 10 11 12
(1918)7 K.L.R 148 (1918)7 K.L.R 148 at 149. (1922)9 E.A.LR. 19. (1962)EA81. Page 342 of 382
"... once a case has been revised by the High Court, that court becomes 'functus officio’ and that the revision is final unless there is an appeal to this court [court of Appeal]...13" In the case of Michael s/o Meshaka –vs- R14 the appellant had been convicted by a Magistrate of rape and sentenced to two years imprisonment and eight strokes. Two days later, and with a view to appealing, he applied for a copy of the judgment and about the same time the relevant papers were sent to the High Court for confirmation of sentence. The sentence came before a judge for confirmation before the time allowed for appeal had expired, despite which the judge revised the finding, altered the conviction to one of indecent assault, set aside, the sentence of corporal punishment and reduced the sentence to 18 months' imprisonment. Subsequently, the appellant having duly filed his appeal, when it came before the court for hearing the judge indicated that he would be disposed to allow the appeal on the merits but was unable to entertain it because of the order made in revision by the first judge. The appellant thereupon, appealed again challenging the decision of the High. Court that it had no jurisdiction to hear the appeal. The Court of Appeal in dismissing the appeal made- the following holdings;
(i)
the order of the first judge was a revisional order of the High Court and could not be considered to be still the order of the subordinate court made in conformity with a revisional order of the High Court;
(ii)
that as no right of appeal from an order of the High Court made either in revision or in confirmation is conferred by the Criminal
13 14
Kiwala -vs- Uganda (1967)EA 758 at 762 para.c (1962)EA81. Page 343 of 382
Procedure Code or any other enactment, no appeal lay and the High Court was right in holding that the appeal could not be entertained.
It would seem that the appellant's right of appeal was wasted through no fault of his in that the revision was done before the time within which an appeal can be lodged was over. This may occasion a failure of justice and one must draw attention to the case of Iobozi s/o Katabara -vR15. The court in this case stated that it; was a most undesirable practice that a revisional order enhancing a sentence should be made before the period of giving notice of appeal has ran out or where such notice has been given before the appeal has been heard and determined. In this case the sentence had been enhanced. The court noted;
"We are of the opinion, however, that, save in cases where justice requires that an obviously improper conviction or illegal sentence be at once quashed or rectified, revisional powers should not be exercised before inquiry has been made whether an appeal has been or is likely to be lodged.”16
The reason for this is that if revisional powers are exercised, before an actual or potential appeal is disposed of this may result in the accused losing his right of appeal to the High Court and even to the Court of Appeal.
15 16
(1956)23 E.A.C.A 583. Ibid at 585. Page 344 of 382
C.
EXTENT OF POWERS OF REVISION The extent to which a court may revise records has also been the
subject of judicial determination. Although no iron clad rule has as yet been made, the various decisions shed some light on the point. The Kenyan case of Nathan Godfrey Odhiambo Obiro -vs- R17 is relevant. The appellant was convicted of forging and altering contrary to section 352 and 356 of the Penal Code, and was given, an absolute discharge under section 35 of the Penal Code. The Supreme Court called for the proceeding's under section 362 of the Criminal Procedure Code and the case was listed for argument whether the sentence or final order should be altered under thepowers of revision vested in the court. It was submitted for the appellant that an order of absolute discharge under section 35 is not a sentence and that there was no power in revision to set aside an order such as that. The Crown submitted that an order of absolute, discharge is technically a sentence in as much as it is a definite judgment pronounced in criminal proceedings. The Supreme Court of Kenya made the following findings;
(i)
an order of absolute discharge under section 35 of the Penal Code is technically a sentence and may be enhanced in revision under the powers contained in section 364(1) of the Criminal Procedure Code;
(ii)
even if the absolute discharge were not technically a sentence it would be an "other order" and could be altered in revision under section 364(1) of the Criminal Procedure Code.
This shows that so long as a finding, sentence or order falls within the contemplation of section 364 of the Criminal Procedure Code the High Court has jurisdiction to act upon it on revision, other factors is remaining
17
(1962)EA650. Page 345 of 382
constant. The issue of whether it is competent for a court to revise an acquittal has been considered. In the Tanzanian case of R –vs- Telenga18 revision of an acquittal was in issue. The accused pleaded not guilty to an offence of corruption under the Corruption Ordinance. Providence of the prosecution and defence was taken and the Magistrate then realized that consent had not been obtained in writing from the Attorney-General as required by section 14 of the aforesaid Ordinance. The prosecution then made an application to withdraw the charge, and since the defence had already been taken, the relevant provisions of the Criminal Procedure Code under which the application was made, made it a requirement that the accused be acquitted. The court in granting the application acquitted the accused. The D.P.P asked for a revision by the High Court to set aside the whole proceedings including the acquittal. Platt -J- held that the Criminal Procedure Code (Tanzania) at section 329(4), whose equivalent provisions are section 364(1) of Cap 75 precludes the High Court from considering the revision of proceedings which result in an acquittal. As seen from above, the court does not enjoy jurisdiction to revise proceedings culminating in an acquittal. However, a finding of ‘autrefois acquit’ is treated differently. In the case of Semuyaga -vs- Uganda19, it was held that a finding of autrefois acquit is a final finding but subject to revision. The High Court's revisional jurisdiction has also been considered with regard to a person being charged under an Act not yet in force. The relevant case is R -vs- Indo Parsad Dave20 The accused was charged and convicted, of his own plea of guilty of inter-alia failing to keep a poison's
18 19 20
(1967)EA407. (1975)EA186 (1963)E.A65. Page 346 of 382
book and failing to display a certificate of registration as a pharmacist contrary to section 29 and 219 respectively of the Pharmacy and Poisons Ordinance (Tanzania). This ordinance was enacted on the 11th of November 1959 and it repealed the Poisons and Pharmacy Act, but did not come to force until the 1st of November 1962. The particulars of the Charge alleged that both the offences had been committed before September 1962, when the repealed Act (read Ordinance) was in force. In revision, the question was whether the court should allow the convictions to stand but alter the charges under section 29 and section 219 of the new ordinance to charges under the corresponding sections of the repealed Ordinance, namely section 21 and section 5 respectively. Sir Ralph Windham CJ held that the provisions of the Criminal Procedure Code regarding revision are wide enough, to enable the court, acting on appeal or in revision, to do what the court of trial ought to have done, and accordingly the court had power to alter the charges and conviction under the appropriate section in repealed ordinance, which was in force when the offence was committed, provided, that the offence was in every respect the same under the old and new sections and provided that no failure of justice would result from the alteration21. The relevant sections of the Tanzanian Criminal Procedure Code being equally worded with the Kenyan Criminal Procedure Code, the above can be taken as offering a judicial interpretation of statutory provisions which vest the courts with revisional powers. The issue of revision when the relevant Act is not in force has also received judicial consideration in other jurisdictions. Two English cases of Meek -vs- Powell22 and R –vs Tuttle23 focus on the point. In the case of Meek -vs- Powell, the position was the reverse of the
21 22 23
See section 382 Criminal Procedure Code (Cap 75). (1952)1 K.B 164; (1952)1 All E.R W. (1929)AII E.Kep, 107 Page 347 of 382
case considered above24. The accused was charged under a section of an Act no longer in force when his offences were committed, instead of under the corresponding section of the Act which had replaced it. It was held that since the trial court had not made the necessary alteration, in the indictment before conviction, it was too late to ask the Court of Criminal Appeal to alter it, notwithstanding that no prejudice would, have resulted to the accused and the conviction was accordingly quashed. In R -vsTuttle, the position was exactly like that in R -vs- Indo Dave the accused having been charged under a section of an Act which, although it had been enacted, had not yet been brought into force when the offence, was committed. The trial judge before conviction altered the indictment to one under the corresponding and almost identical section under the Act which was still in force when the offence was committed, and which was repealed and substantially re-enacted by the new Act. It was held on appeal that the alteration was properly made by the trial court. The powers of the High Court when exercising its revision jurisdiction allows it to alter a sentence. This was observed in Juma Keshallila –vs- R25. The appellant was convicted of stealing by a Magistrate who under the powers conferred by section 305(1) of the Tanzanian Criminal Procedure Code ordered that the appellant be released upon entering a bond to appear and receive sentence- at any time within three years if called upon and in the meantime to be of good behaviour. In revision, the High Court set aside the order of the Magistrate and substituted, a sentence of one year's imprisonment. The appellant appealed on the ground that the High Court had no power to substitute a sentence of imprisonment for an order made by the Magistrate under section 305(1) of the aforesaid code, which provides that: 24 25
R -vs- Indo Dave (1963)EA. 65. (1963)EA184. Page 348 of 382
"... if it appears to the court before which the offender is convicted that... it is expedient to release the offender on probation, the court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond... to appear and receive sentence when called upon..."
The East African Court of Appeal held that firstly an order made under section 305(1) does not amount to a sentence and that in revision the High Court has power to substitute a sentence of imprisonment for a probation order to come up for sentence if called upon.
D.
REVISIONAL JURISDICTION WHEN RIGHT OF APPEAL EXISTS AND IS NOT EXERCISED Under the Criminal Procedure Code it is clearly provided that;
"When an appeal lies from a finding, sentence or order, and no appeal is brought, no proceeding' by way of revision shall be entertained at the instance of the party who could have appealed26"
The above provision was judicially considered by the East African court of Appeal in R -vs- Ajit Singh s/o Vir Singh27 The accused was tried for theft of timber contrary to the Penal Code and at the end of the prosecution case the Magistrate held that there was no case to answer. The
26 27
Section 364(5) Criminal Procedure Code (Cap 75). (1957)EA 822, Page 349 of 382
accused, was acquitted and was awarded Shs. 500/- as compensation as the Magistrate regarded it "frivolous in the extreme for him to have been recharged". About a month, earlier the accused, had been charged with an exactly similar charge-but it was withdrawn. The present case was brought before the Supreme Court by way at revision at the instance of the Attorney-General., to review the finding that the charge was frivolous. Edmunds -J- before whom this case originally came adjourned it for consideration before a full bench. At the subsequent hearing, counsel for the accused took preliminary point that section 364(5) of the Criminal Procedure Code, precluded the court from exercising revisional jurisdiction because the matter was brought to the notice of the court by a party who had a right of appeal against the Magistrate's decision byway of case stated. The Crown made two arguments; Firstly that on the facts, this was not a frivolous or vexatious prosecution and that the question whether it was or was not, was one of fact, and that an appeal by way of case stated did not lie. Secondly, that, if an appeal did originally lie, the time for preferring an appeal had expired when the crown requested the court to exercise its powers of revision and that sub-section (5) of section 364 is not designed to exclude the power to entertain a revision in such circumstances. In setting aside the order of compensation., Rudd Ag C-J, Connell and Murphy J made, the following ruling, that:
(h)
Sub-section (5) of section 364 (Criminal Procedure Code) is not intended to preclude the supreme court from considering the correctness of a finding, sentence or order merely because the facts of the matter have been brought to its notice by a party who has or who has had a right of appeal and is not intended to derogate from the wide powers conferred by sections 362 and 364. Page 350 of 382
(ii)
the supreme court can, in its own discretion, act 'suo motto' even where the matter has been brought to its notice by an aggrieved party who had a right of appeal.
At other times, an appeal may have been lodged but it is subsequently withdrawn. This does not deny the High Court competence to exercise its revisional jurisdiction if it considers that the order or sentence is illegal. This was considered in Uganda -vs- Polasi28. In this case the accused was sentenced to an illegal term of imprisonment He filed an appeal but withdrew it and it was thereby deemed to have been dismissed. The sentence was subject to confirmation and had not been confirmed. The High Court held that it had power to revise the illegal sentence. Dickson J- noted that an abandoned appeal may be restored in a proper case on application by an appellant. He observed that in this case the appellant had not applied and a pertinent question to be asked, was whether the court can of its motion restore an abandoned appeal. He took the view that inasmuch as an abandoned criminal appeal may be re-stored where, the court is 'functus officio', the High court can of its own motion, in the exercise of its revisional powers under the Criminal Procedure Code, where there is a fundamental illegality make a revisional order without an accused applying, in the case where an appeal had been previously dismissed by the mere operation of the law. The court noted:
"The case has come to this court's notice in the exercise of its functions. The accused, it would seem, was unaware of
28
(1970)EA638. Page 351 of 382
the illegality of the sentence... Once this state of affairs has come to the notice of the High Court, what must it do when it is enjoined to exercise general powers of supervision and control over the Magistrates’ courts, coupled with the specific powers of revision, under... the Criminal Procedure Code? The court is clothed with authority to correct errors... Here the accused is sentence to undergo imprisonment for seven years, a sentence which exceeds the legal limits by five years and, accordingly, there's a gross illegality. In these circumstances, the clear duty of this court, notwithstanding the fact that the accused has abandoned his appeal, is to invoke... the Criminal Procedure Code and cure the illegality. I would hold that in the circumstances of this case, even if this court is functus officio, it has jurisdiction under its revisional powers to correct the formidable error of the trial Magistrate which has already occasioned an injustice29'".
This echoed a passage from the speech of Lord Morris in S (An infant) By Parsons (His next Friend) -vs- Recorder of Manchester30 that;
"If, before the court has completed its task in regard to the case, an application to withdraw the plea is made and if its made for reasons which the court deems valid and which perhaps it had previously had no opportunity of considering is the court powerless to accede to it? It would be
29 30
Ibid at 640. (1970)2 W.L.R 21 Page 352 of 382
lamentable if that were so".
Dickson -J- further observed that it would be lamentable in the circumstances of the case Uganda -vs- Polasi if the court in the absence of an application by the accused to withdraw his notice of abandonment of his appeal, could not reduce the sentence to its legal, limits by the exercise of its revisional powers. From the above, it is clear that sub-section (5) of section 364 of the Criminal Procedure Code does not work to limit the powers of the High Court in exercise of its revision al jurisdiction if the order or the sentence is manifestly illegal. The interpretation of the court with regard to the above is a welcome one because it has insisted that substantive justice should not be sacrificed for mere technicalities.
E. A FINDING OF AUTREFOIS ACQUIT AND REVISION The Criminal Procedure Code at section 364(1) (b) provides that in the case of a proceeding in a subordinate court the record of which has been called for or which, has been reported for orders, or which otherwise comes to its knowledge, the High Court may in the case of any other order other than an order of acquittal, alter or reverse the sentence', This clearly throws an order of acquittal out of revision.. The issue at hand is whether a plea or a finding of autrefois acquit' operates in like mariner with an order of acquittal. This has been settled in the case of Semuyaga –vs- Uganda31 by the Court of Appeal for East Africa. The case considered whether an order of 'autrefois acquit' is subject to revision. The appellant was charged with offenses before a Magistrate, and contended that he had been acquitted of the charges that had been acquitted of the charges the previous 31
(1975)E.A 186. Page 353 of 382
day. The Magistrate upheld the submission, and the state applied to the High Court for a revision of the order which was granted on the ground that the offences charged were not based on the same facts. On further appeal, the appellant contended that the revision application was out of time. The state contended that the application for revision made by it in the High Court had been incompetent as being a challenge to an interlocutory ruling in the course of a trial. The appellate court held that the finding of 'autrefois acquit’ was a final order from which revision lay and therefore the finding of the High Court was correct. The appeal was thus dismissed. This case shows that an order of 'autrefois acquit' is a final order or finding and it is subject to revision. It is not to be understood as meaning 'acquit'. The finding that a person had been acquitted of a certain offence charged does not mean the same thing as the acquittal itself.
F.
EFFECT OF REVISION OF A CIVIL CASE UPON A CRIMINAL CASE BASED ON THE SAME FACTS The issue which has arisen with regard to the review of conviction
and sentence in criminal and civil cases concerning the same persons and based on the same facts is whether different. Findings in subsequent findings of the civil proceedings can affect the results of a criminal case. There is no clear statutory provision in the Criminal Procedure Code on the issue but one may invoke the Evidence Act32 that since the standard of proof in a civil case33 is on a balance of probabilities and that in a criminal trial is beyond reasonable doubt, it is unlikely that the civil findings will greatly affect the outcome of the criminal trial. This issue was considered
32 33
Cap. 80 Laws of Kenya Save in matrimonial causes where divorce is sought the standard required is higher than in other civil concerns. Page 354 of 382
in P.S. Fernandes –vs- R34. The applicant was convicted in the Magistrate's court on a charge of assaulting the complainant and causing him bodily harm and was bound over for one year in the sum of Shs. 100/-. He applied for leave to appeal out of time and application was dismissed. He applied after a lapse, of four months by way of revision, to have his conviction set aside. During the intervening period the complainant sued the applicant for damages in the Resident Magistrate's Court but before another Magistrate, and in this case each of the parties told substantially the same story as in the criminal case. The Magistrate believed the applicant and found that the complainant not merely rushed at the applicant immediately before the latter caught hold of him, but he actually pushed the applicant, so that if there was any assault it was in self-defence against an assault by the complainant and accordingly dismissed, the action. One of the points raised by the applicant in his application for revision, was that in view of the findings of the Magistrate in the civil proceedings, the findings and conviction of the Magistrate in the criminal case ought to be reversed and set aside because a reasonable doubt on credibility had arisen, ex, posto facto' by the judgment in the subsequent civil case. Windham C-J held that first when the court is acting in revision, it is not confined to the question whether the judgment or sentence in the criminal court' was correct when made, but may consider also the broader question whether it ought subsequently to be set aside even if correct when made. The second point made by the learned C-J is that the court could not accept the applicant's proposition on credibility as, quite apart from the resulting uncertainty and confusion, the decision of the court on such a question would depend upon an assessment of the capacities and experience of the two Magistrates themselves which it would be impossible and wholly
34
(1957)EA212, Page 355 of 382
improper to attempt. The court dismissed the application for revision.
Page 356 of 382
CHAPTER TWENTY RETRIAL A. INTRODUCTION Although, new trials were granted in civil cases as early as the fourteenth century, they were not granted in criminal cases until the latter half of the seventeen the century. Although there were two cases in 1660 allowing a new trial upon the application of the prosecution, the developing concept of double jeopardy prevented the rule from taking hold. In 1673, a new trial was granted after a conviction of perjury. Since then the defendant may apply for a new trial. The grounds for new trial were broad in scope, covering errors in the admission or exclusion of evidence, improper instructions, a verdict against the weight of the evidence, or the furtherance of the ends of justice, However, no new trial could be granted in felony cases. The function of a motion for a new trial is to call to the attention of the trial court some error which was committed upon the trial or to some newly discovered evidence which was not obtainable at the trial. By means of such a motion it is possible for the trial court to correct errors without subjecting the defendant to the expense, delay and inconvenience of an appeal.
B. ORDERS FOR RETRIAL When a case has been tried and 'duly' determined by a competent court, a higher court than that which tried the case may order that the matter be tried again. The High Court in its exercise of revisional powers, or appeal, may order that a case be remitted to the lower court for a retrial. A re-trial is a finished trial, a proceeding in which the guilt or innocence of the accused is determined. Accordingly, in the case of AG -vs- Kelly Page 357 of 382
(No.2)1, where a retrial had been ordered and the jury disagreed, it was held that there had not been a retrial. A question has arisen as to whether to order a retrial is a matter of practice or of procedure. The Privy Council in the case of Ross -vs- R2, was of the view that it was both. The discretion of the court to order a retrial is one that ought to be exercised with great care. This exercise is not done randomly but is grounded on well formulated principles as developed by the courts. There are several factors to be considered when the court is deciding whether or not to order a retrial. These factors have been spelt out in the case of Fatehali Manji –vs- R3 The appellant was charged with the theft of a selfstarter. The prosecution alleged that it was stolen from a vehicle at Arusha on June 6th 1965, and that the appellant had it in his possession eight days later when it was resold, The appellant's defence was that he had purchased the self-starter from a shop in Nairobi on June 10th 1965 and he produced a receipt. The prosecution led hearsay evidence without leave that the shop did not exist. The Magistrate called, a police officer from Nairobi whose evidence he accepted, to testify that the shop did not exist. The appellant was convicted. On appeal to the High Court, leave, was given to adduce additional evidence to establish the existence of the shop. Eventually the prosecution conceded that the police officer was in error and the judge ordered a retrial, being influenced by the inadmissible evidence. On further appeal to the Court of Appeal, the question to be decided was whether the order for retrial was justified or not. The Court of Appeal at Nairobi presided over by Sir Clement de Lestang, Ag. President, Spry Ag V-P and Law J.A held that:
1 2 3
(1938) Ireland Reports (I.R) 109. (1938) Ireland Reports (I.R) 109. (1966)E,A343. Page 358 of 382
(i)
In general a retrial will be ordered when the original trial was illegal or defective. It was further observed, that each case must depend on its own facts and circumstances and an order for retrial should only be made where the interests of justice require it.
(ii)
the original trial was neither illegal nor defective and in the circumstances of the case it would he unfair to require the appellant to stand a new trial.
The court went further and restated the other conditions such as that a retrial will not be warranted merely because of insufficiency of evidence. It is to be noted that a retrial will not be ordered, if by so doing an. Injustice will be caused or occasioned. What however, is "an injustice" has not been judicially determined. However, a clue as to what would, amount to an. injustice is offered by the above case in which. Sir Clement stated:
"Applying those principles to the present case, it is clear that the original trial was neither illegal nor defective. We think that had the learned Magistrate not been misled regarding" the existence of the shop in question he would, in all probability, have acquitted the appellant and a new trial may deprive the appellant of that chance of acquittal. Moreover, in a new trial the prosecution would be able to lead evidence which it had not led at the original trial and take a stand different from that which, it took at the trial. In all these circumstances we are of the view that to require the appellant to stand trial again would be unfair4".
4
Ibid at 344-345. Page 359 of 382
The 'locus classicus' on the subject of retrial and the conditions to be considered, is Muyimbo –vs- R5. It focused on "when a retrial may be ordered".
Before discussing the conditions, it is necessary to outline, briefly, the facts. One of the appellants jointly charged with two others was represented. He had been in custody since May 1968 and the police were aware that an advocate had been instructed in June 1968. On 5th September 1968, the hearing of the case was fixed for 10 th September 1968, at Masaka some eighty miles from Kampala where the advocate practised. The advocate was informed that the case was fixed for hearing by telephone only on the morning of the hearing. He was engaged in the High Court in Kampala. The Magistrate was not told that the advocate had been informed just that morning that the case was fixed for hearing. The Magistrate accordingly allowed the trial to proceed. The appellant appealed on the ground that he had been denied the right to legal representation given to him by the Constitution. Russel -J- held that the appellant had been deprived of his right to legal representation. He further ruled that this was a fundamental defect which had the result of nullifying the trial. The case of Galos and Another –vs- R6 was followed. Russell J. therefore ordered a retrial as the trial of the appellant had been defective. He followed the case of Ahmed ali Dharamasi Sumar –vs- R7. Russel -Jfurther gave the conditions which are needed for a retrial to be ordered. He said:
5 6 7
(1969)LA433 (1944) AC 149 (1964)EA481 Page 360 of 382
"In general a retrial will be ordered only where the original trial was illegal or defective; it will not be ordered, where the conviction is set aside because of insufficiency of evidence....8”
It was further noted that an order of retrial will not be given for purposes of enabling the prosecution to fill up gaps in its evidence at the first trial. Even where a conviction is vitiated by mistake of the trial, court for which the prosecution, is not to blame, it does not necessarily follow that a retrial should be ordered. Each case must depend on its particular facts and circumstances and an order for retrial should only be made where the interests of justice require it and should not be ordered where it is likely to cause an injustice to the accused person"9. In Aloys Awori –vs- Uganda10, the issue of retrial was at hand. The appeal of the appellant against his conviction based on inadmissible evidence was allowed. On the application by the state for a retrial, Russel J. held that the trial was neither illegal nor defective and an order for a retrial, would give the prosecution an opportunity of filling in gaps in its case. The application was thus refused on that ground. The court further observed that to give the prosecution an opportunity of filling in gaps in the prosecution case would be contrary to the well established principle 'NEMO BIS VEXARI DEBET PRO EADEM CAUSA' - it is a rule of law that a man shall not be twice vexed for one and the same cause. Sometimes, the trial may be a nullity through no fault of the prosecution. In certain of such circumstances a retrial may be ordered. In
8 9 10
(1969)EA433at438. As per Russel -.1- Ibid at 438 (1972)EA469. Page 361 of 382
M’Kanake –vs- R11 the trial was a nullity not by fault of the prosecution. The evidence at the appellant's trial for murder consisted of an alleged confession, the evidence of an adult eye witness and of five small children. The appellant was informed of his right to give evidence or to call witnesses on the admissibility of the confession, the adult witness had made a statement to the police that he had not seen the deceased on the day of her death, and the judge had not recorded that the children were of sufficient intelligence and understood the duty of speaking the truth. Counsel for the respondent asked for an order for a retrial. The Court of Appeal ruled that since the retrial was not asked for to fill gaps in the evidence nor to rectify faults of the prosecution it would be ordered.
At yet other times, the original trial may not be illegal or defective but if a retrial, will occasion an injustice to the accused, then it will not be ordered. The case of Merali & Others -vs- R12 discusses the point where the appellant together with two others were charged jointly before a Magistrate with stealing goods in transit. The appellants appealed to the High Court against then-conviction. The judge, did not find that the trial was illegal or defective, but after stating that the Magistrate dealt with the defence and not with the prosecution evidence, he ordered a retrial. The appellant appealed again. The Court of Appeal held inter-alia that a retrial may be ordered only when the original trial was illegal or defective. The court further held that a retrial may be ordered if the interests of justice so require and if no prejudice is caused to the accused. The order for retrial was set aside. A retrial may be ordered if the court finds that an accused person was convicted of an offence other than the one which was either charged or 11 12
(1973)EA67 (1971)EA221 Page 362 of 382
ought to have been charged with. In Tamamo -vs- R13 the accused was charged with driving a vehicle whilst under the influence of drink. Section 44(1) of the Traffic Act14 provides for three different offences 'driving', 'attempting to drive' and 'being in charge of " a motor vehicle whilst under the influence of drink to such an extent as to be incapable of proper control of the vehicle, and the accused was convicted and sentenced. On appeal, Trevelyan -J- set both the conviction and sentence aside and ordered a retrial on the ground that the accused was never charged with "being in charge" of a motor vehicle, and accordingly the conviction and sentence should be set aside. The court in its discretion, therefore ordered a retrial. The proceedings of the trial may be irregular and whether the irregularity is reason enough to warrant an order for retrial must be investigated. The case of Ratilal Shah -vs- R15 focuses on the point and discusses what to consider when an applicant has raised the issue of irregularity. In this case a salesman, driver employed by a brewery altered an invoice for five cases of beer to show that he delivered fifteen cases and made out another invoice showing that he had delivered, fifteen cases of beer to a customer to whom no beer had been delivered. He then drove to the appellant's shop and offered the appellant twenty cases of beer, which was off-loaded at his store. The appellant was subsequently charged with receiving or retaining stolen property. After hearing the evidence and addresses, the Magistrate adjourned and a few days later delivered a short written, judgment in which he convicted the appellant and sentenced him finding that the salient facts were unchallenged but adding that he would give his reasons in writing later, Subsequently, he recorded his full reasons in a document headed "Findings", which was put with the record but never
13 14 15
(1969)EA176 Cap 403 laws of Kenya. (1958)EA3. Page 363 of 382
read out in court. On appeal from his conviction and sentence, the appellant's counsel contended, that the procedure of the Magistrate was irregular and not in compliance with the Criminal Procedure-Code. It was held that a retrial should not be ordered unless the court is of the opinion that on a proper consideration of the admissible or potentially admissible evidence a conviction might result; and since the court was unable to hold that there was no evidence to justify the Magistrate's finding that the salesman driver formed the intention to steal when he fiddled the invoice and that asportation occurred at the latest when he set off for the appellant's shop; accordingly there was evidence to support a conviction for receiving and there must be a re-trial. The court further observed that the judgment of the Magistrate did not comply with section 169 of the Criminal Procedure Code since there was no clear finding of fact and no reasons for the decision. It further observed that an appellate court cannot look at reasons written by a Magistrate after the conclusion of a trial but the procedure adopted by the trial Magistrate did not necessarily invalidate the conviction and an appellate court is entitled to entertain an appeal on the merits if no injustice to the parties is thereby done and the record contains sufficient material for the purpose. The two cases of Samwiri –vs- R16 and Desiderio Kawunya -vs- R17 were followed. Therefore, its within the court's discretion, whether or not to order that a case be tried again. This discretion is exercised on solid governing principles. Although case law indicates that a retrial will not be ordered merely on account of irregularities, it is well settled, that if such procedural irregularities have indeed gone into the core of the matter and have occasioned an injustice or a miscarriage of justice, nothing will deter the court from ordering a trial de novo. A retrial therefore becomes an important 16 17
(1953)2.0 E.A.C.A 277. (1953)20 E.A.C.A 281. Page 364 of 382
safeguard where an earlier trial has been vitiated by a miscarriage of justice.
Page 365 of 382
CHAPTER TWENTY- ONE INQUIRIES AS TO SUDDEN DEATHS A. INTRODUCTION Under the Criminal Procedure Code sections 385 to 388 provisions are made spelling out the 'modus operand'' of conducting trials in cases of sudden deaths. Section 385 empowers a Magistrate holding a subordinate court of first or second class and a Magistrate specially empowered by the Chief Justice to hold inquests.
B. INQUEST JURISDICTION The inquest jurisdiction of courts is invoked in several circumstances. Under section 366(1) when an officer in charge of a police station or any other officer specially empowered receives information, that a person has committed suicide1 or has been killed by another or by accident2, or has died under circumstances raising reasonable suspicion that some other person has committed, an offence3 is enjoined to give information to the nearest Magistrate empowered to hold inquests.
C.
INQUESTS WHERE DEATH CUSTODY OR PRISON
OCCURS
IN
POLICE
In cases where death occurs while a person is in custody of the police, or of a prison, officer, or in a prison, the nearest Magistrate empowered to hold inquests may hold an inquiry into the cause of death in line of or in addition to police investigation.
1 2 3
Section 386(1 )(a) of Criminal Procedure Code (Cap 75). Section 386(1 )(b) of Criminal Procedure Code (Cap 75). Section 386(1 )(c) of Criminal Procedure Code (Cap 75). Page 366 of 382
While, exercising the review jurisdiction the enquiring Magistrate has powers to make orders to facilitate the enquiry including exhumation and examination of the body.4 During the inquiry or at its termination the Magistrate is empowered to summon any person(s) against whom an offence has been disclosed.5
D. FINDINGS AFTER INQUEST After an inquest has been conducted through examination of witnesses the Magistrate may make a finding that some offence has been committed by some person or persons unknown. A copy of such finding shall be forwarded to the Attorney-General being the Magistrates opinion6. Conversely if the Magistrate has formed the opinion that no offence has been committed, he shall record his opinion accordingly7. It is noteworthy that the Magistrate's inquest jurisdiction may be reactivated even when it has been terminated. Section 388(2) empowers the Attorney-General to open an inquiry if he deems further investigation necessary. When the Attorney orders the re-opening of an inquiry a Magistrate shall do so except if he had formed and rendered an opinion to the effect that the offence of murder or manslaughter had been committed by a person.
E. CONCLUSION Inquests are very important owing to the premium that the Constitution places on life 'ipso facto' whenever death occurs in unclear circumstances the law makes it mandatory that an inquiry must be 4 5 6 7
Section 387(2) of Criminal Procedure Code (Cap 75). Section 387(3) of Criminal Procedure Code (Cap 75). Section 387(4) of Criminal Procedure Code (Cap 75). Section 387(5) of Criminal Procedure Code (Cap 75) Page 367 of 382
conducted to remove the cobwebs of uncertainty.
Page 368 of 382
A
with warrant 20
Absconding 39, 40, 41, 65
without warrant 17, 18
fear of 41 Accessory 30
Attorney-General 165
Acquit 102, 139, 143, 296, 302 Alibi 125, 153 Appeal
appeal to the high court 107
48, 51, 267, 278 admission
of
Bratty additional
evidence on 269
-vs-
Attorney-
General for Northern Ireland 199
bail pending 46
constitutional position 2
from order 263
powers 2, 3, 14
revisional jurisdiction when
B
right of 299
Bail 31-69
summary
rejection
and
precision of the 269 Appeals 264 from subordinate courts 264 summary allowance of 272 from the high court 276 Application 58 for habeas corpus under Kenyan law 287 Arrangements 32, 41 Arrest 16- 23 by a police officer 17 by a private person 20 by Magistrate 19 Page 369 of 382
application 58 as viewed by
Sauzier 94 of Beynon 193
courts 60 in Kenya 32
of Bracegirdle-vs-Oxley 265
pending
appeal
46,
51
of Byarutu Gata 101 of
pending appeal on a plea of
Cliander Kanta Sethi 231 of
guilty 48 pre-trial 40 the law
Christopher Omufira Akwabi
of 64 Bond 56,
80 of Edwards -vs- Bairstow
C
and Another
Case 108, 110, 111, 149,
266
188, 303 against accused person 110, 123, 152 against Robbert reform
Martins 185,
210
43
for
in
a
subordinate court 244, 288 in preliminary inquiries 123 in the court of appeal 51 Merali and others 310 of a convicted person 237 of a prisoner 249 of Abdullah 50 of Adan 101 of Aganyi 254 of Ahmedali Ali Dharma Sumar 308 of Alexus Afumu and Another 108 of Ali Mohammed
Hassani
Mpanda 221 of Andiazi 175 .of
Attorney-General-vs-
Kelly 306 of bail bond 57 of Benfield 88 of Benjamin Page 370 of 382
of Elgood 273
Uganda 290 of Kuyate 272 of
of Eliud Mwaura 38
Lebiningin 78 of Lelawan
of evidence of children 219
Leseroi 144 of Livingstone
of Fatehali Manji 306
Anyanga 147 of Lobozi s/o
of Fuller 88
Katabara 294 of Lokidilio s/o
of Gajjan Singh and others
Laitogou 234 of Lokmanya
55
Tilak
of Gamiliere Mubito 135
Kachehakana
of Gasol and Another 308
Mahmood 57
of George Ochieng Omodho
of Makali and three others
112
260 of Mandi s/o Ngoda 202
of Grace Ibingira and others
of
285
manslaughter 38 of Margaret
of Gray 261
Magiri Ngui 36 of Mathenge
of insanity 201, 204
s/o Muriemo 150 of Maulidi
of Jaffer 64
Abdalla
of
Joseph
Odhengo
s/o
60
of
Mangwera
Change
Maumba 103
Ogongo 258 of Kamau s/o Muga 84 of Kamwana s/o Mutia 82 of Kaplotwa s/o Tarino 192 of Karioko s/o Gichohi 270 of Khalif 251 of Kidasa 268 of Kimani and Maina -vsNathan Kahara 135 of Kimanzia 237 of Kinyori s/o Kiraditu -vsRegina 151 of Kiwala-vsPage 371 of 382
Magata s/o 205
139
94
of
of
of
of Mbebi 158
Ogonyo Luora
of McBride 84
219
of Meek -vs- Powell 297
of Ross 306 of Saina 91
of Mehar Singh Bansel 181
of Semuyaga-vs-Uganda 296,
of Merali 48
302 of Shah 47 of Sirasi 275
of Michael 51, 293
of Sironga and Mindo 291 of
of Mita 232
Sowedi Kauta 134 of state
of M'Mwenda 101
interference 260 of Telenga
of Mohamed 233
295 of Telenge 98
of Molley 87 of Mukindia 242 of Mutua 138 of Nahashon Marenya 71 of
Nathan
Godfrey
Odhiambo Obiro 294 of Nathani 85 of Nemchand Govindji -vsRegina 52 of Odera 238 of Ogalo 253 of Paul Ekai 184 of Paulo Lwevola 178 • of personal recognisance 57 of Pritchard 195 of ProbatShah 285 of provocation 175 of punishment 37, 39 of R -vsGabhai Jessa 54 of Ramanlal Bhatt 110 of Ratilal Shah 222, 311 of Re Castings 217 of
Robert
Ndecho
and Page 372 of 382
of the Attorney-General -vs-
of concurrent sentences 252
Marakaru 265
of law 97
of the King -vs- Thomas 87
of murder 127
of Thompson 88
of rape 83
of Uganda-vs-Keneri Opidi
of stealing cattle 144
73
two offences 92
ofWitherly-vs-Witherly 283
under the Traffic Ordinance
of Wood Green 69
72 Civil 51, 212, 285
of Yates 96
and criminal 167
of
Yokobo
Uma
and
effect of revision of 303
Another 86
of the criminal trial 304
of Yowana Sebuzkira 133
of unlawful arrest 17
of Yusuf Maumb 95
Procedure Act 172
of Zaverchand Hemraj Shah
proceedings 19, 243, 261, 304
78
Cognizable offence 18, 20, 21
of Zubairi 127
Committal 119, 130, 252, 258
passed by the High Court
by the presiding high court
292
judge 98
proved by the evidence of
by the prosecution 126
other eyewitnesses 110
of an accused person 123
the appellant 154, 192, 238, 300 the Chief-Justice 275, 277 under the Road Traffic Act 266 Charges 70, 89-97, 127, 261 amendment of 93 for treason in Kenya 133 of arson 90 Page 373 of 382
proceedings 119, 124, proceedings
/
Contempt 258, 259 and
constitutional rights
130
in the face of the court 259 of
Compensation
court
in
criminal
proceedings 258
234, 237, 243
of court proceedings 257,
revisited 242
outside court 259 Convict
of unfair remand 38
102, 143,
order
by
court
243
• of capital murder 194
Constitution 130
of children and young persons
and the Criminal Procedure
act
Code 32
230
and
legal
rights
over
criminal •
of guilty of inter-alia 296 of killing an animal 234
prosecutions
see
of manslaughter 160
Constitutional 4
of murder 138, 174, 192, 194,
of a Chief Kadhi 105
197
of human rights 62
of rape 83, 293
of jurisdiction and powers
of robbery with violence 217,
105
272
of Kenya 4, 8, 13, 130, 213
of stealing 255, 279, 290, 298
of Kenya Act 37
of the penal code 75
of the court 276
burden
of the court in its appellate
Conviction 203
jurisdiction 276
of guilty 49, 101, 139
of the high court of Kenya
of the traffic regulations 73
131 of the office of the President 261 on
life
ipso
facto
314 Page 374 of 382
of
proof
see
under traffic ordinance 74 to
D
a higher court for sentence
Defence 111, 204
256 Costs 240, 244, 237
bail application 62
of prosecution 235 Courts
burden of proof 191, 203
60, 81 99, 105, 107, 306
charge of murder 133, 164
Appeals from subordinate
commission 197
264
evidence 129, 152, 153, 154,
of
children
and
young
204
persons act 240
functus officio 104
Bail pending appeal 275
of insanity 198, 199, 204
Bill 37, 3S
onus of proof 195
Judicial act 261
submissions 112 Demurrer
legal basis of law 128
139, 142 Detention 189, 202,
of human rights 43
229, 230, Discharge 235, 240,
of
unlawful
arrest
17
263, 295
Criminal 1, 258, 259, 303 appeal 7 arrest 4, 16, 19, 20, 23 charged with robbery with violence 36 investigation 9, 18 right 4 warrant of arrest 21 Custody 41, 141, 287, 313 arrest without a warrant 18, 69 bail 36 investigating 127 of rape 58 Page 375 of 382
E
of a bond 57 Functus Officio
Employment 40, 67, 230
95, 102, 291, 292, 301
extra-mural penal 237, 241,
rule 102, 103
242 Evidence 40, 258, 273
guilty 165
of proof 150, 274, 303
powers 301
against prisoner 19
trial 127
of a prisoner's sanity 197
G
of an adult eye witness 309
Guilty 148, 170, 204, 206 bail
of appeal 274
pending appeal on a plea of
of children of tender 219,
48 of corruption 295 of inter-
309
alia 296 of murder 104, 138,
of guilty 148
184
on bail 40 on oath 110, 126, 150 onus of proof 195 to justify a committal 120 of sentence of imprisonment 235
Ex
facie
148
•
Exhypothesi 155 Execution 18, 220, 258 of sentence of imprisonment 235 warrant 234 F Fines 77, 245, 252 of imprisonment 231 prison
sentences
251
Forfeiture 65, 229, 233 commission of a crime 233 Page 376 of 382
plea of 103, 139
defence 204
plea of" not 140 procedure
of mens-rea 207
after finding of 210
prosecution 196 Insanity 200,
H
201, 204, 214
Habeas Corpus 282-285 287
and the prosecution 196
Hearing 8, 47, 148, 149
evolution 205
a witness 145
of a criminal trial 188
of case 112
of a trial 202
of complaint 114
of defence 201
of the appeal 49
of drunkenness 213
of the case 59
procedure in cases of 187
of the trial 148 of medical evidence 193 imprimatur
86,
287
Imprisonment 229, 241, of robbery with violence 217 of threatening to murder 196 of
young
persons
246
indictment 87, 95, 100, 195, 204, 298 for murder 194 of rape 83 Information 70, 119 by appellant 81 quashing of 95 Inquiry 119, 121, 128 of death 313 of murder or manslaughter 314 Insanity 187, 196 Page 377 of 382
refusal to plead 196
/
for the period 174
guilty but insane or not
imposed by statutes 10 locus
guilty on
classicus 270, 307 locus stand
account of 206 as absence of
i 5, 11
mens-rea 207
M
Judge 89, 126, 161, 204,
Magistrate 5, 106, 132 arrest
257, 261, 310 Judgment 215,
by 19 Chief 106 court 106
222
Resident 106
and sentence 165 order on 222 Jurisdiction 23, 115, 276, 299, 313 objection to 141 of the criminal courts 107 revisional 294 of Supreme Court 286 under Criminal Procedure Code 51 Jury 166, 169, 199 L Law 162, 284, 287 aided by criminal procedures 31 harbeas corpus 284 of England 129 'question of 116 to determine bail decision 42 valid arrest 17 written 70 Limitation 10, 174 of time 8, 268 Page 378 of 382
aistricc iu / malice 5, 144
105, 108, 144, 187, 188
accused stands mute of 140
after finding of guilty and
Mute 140, 144
sanity 210
N Nolle prosequi 12
an evaluation of the 211
0
if accused pleads guilty 148
Offence 74, 132
Proceedings 130, 132, 257
nature and seriousness 42
resumption of 190
Offences 118, 219 fears of further 41 Offenders 236 treatment of juvenile 240 P Pardon
102,
144
Pari
materia 26 Particulars 76 of the offence charged 74 Persons 107, 141, 230, 138, 261 joinder of 84 Plea 98, 102, 104, 135 of autrefois acquit, autrefois convict, and pardon 102 of guilty 101-103, 139 of not guilty 140, 149 recording
of
99
Police
officer 18 arrest by 17 Practice 13, 241 Private
5,
6,
11,
20
Probation 43, 173 of offenders 236 Procedure Page 379 of 382
prosecution i, 1.2,, iuo, ivo
Sections 71 /
private 4, 6
of guilty 28
Punishment 229, 231, 241
of penal code 72
the severity of 43
Security 56, 65, 57, 189, 229,
purpose of 260
258, 235 Sentence 165, 223,
R
252
recognisance 57, 66, 122,
suspended 240
235 Records 180, 278, 294
for dangerous driving 251
Reforms 63, 64, 167, 185
free on bail 68
Restitution 241, 243 Retrial
funtus officio 104
40, 179, 305-308, 310
judgment 295
of justice 309, 310 .Revision 288, 290, 294, 302-304 funtus officio 291 of case I of sentence 291 Right 130, 299, 309 of appeal 107, 263, 293, 300 of appeals 3 of complaint 4 of freedom and liberty 196 of insanity 200, 202 of prosecution 112, 156 to bail 33, 34, 59, 62 to freedom of speech 261 Searches 24-28 with a search warrants 24 which searches warrant 24 without a search warrant 27 Page 380 of 382
of corporal punishment Zyj
113, 114, 115, 118
of guilty 249 of imprisonment 229, 235, 298 of justice 253 of not guilty 103 of police supervision 238 suo motu 290 Sentencing 227, 245, 269, 298 historical development of 224 in Kenya 247 in traffic cases 244 of criminal justice 223 young
persons
and
245
Settlements 238 Silence 140 Structure 58, 106, 185 of
criminal
courts
107
Success 48 Sudden deaths 313 Supervision 18, 131, 238, 301 of convicted person 237 Sureties 14, 31, 41, 53, 64, 237 of bail bond 57 T Traffic 114, 244-245, 266, 310 of cases 113, 115 Transfer Page 381 of 382
effect of 117 of case 114, 115 of criminal cases 113 Trial 108, 116, 279, 286, 297, 310 for murder 309 in the
high
court
131
of
assessors 168 of criminal 1 of insanity 201 of justice 312 of manslaughter 38 procedure in the subordinate courts 105 the hearing and conduct of the 148 w Warrant 17, 20, 24, 27, 90, 280 by the officer 21, 25 for detention 189 of arrest 18, 21, 65 of
bail
pending
52
Withdrawal 12, 13, 15 by defence 15 of guilty 103 Y Young 60, 61, 83, 230, 240, 246 persons and sentencing 245
Page 382 of 382
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